OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF LOUISIANA

OPINION NUMBER 78-1094

October 11, 1978

CORE TERMS: board of trustees, recommendation, bylaw, approve, athletic director, appoint, recommend, appointment, personnel, interview, fill, salary, voted, administrative officer, recommended, supervision, designate, vacancy, hiring, vacant, duties

SYLLABUS:
[*1]

22A. State Colleges & Universities Board of Trustees

R.S. 17:3301 3305
R.S. 17:3351(A)

The procedure established by the Board of Trustees was proper within the framework of the statutes and bylaws in a situation such as this where the president or head of a university or college refused to make a recommendation.

REQUESTBY:

Dr. Bill Junkin
Executive Director
Board of Trustees for State Colleges and Universities
One American Place - Suite 1412
Baton Rouge, Louisiana 70825

OPINIONBY:
WILLIAM J. GUSTE, JR., ATTORNEY GENERAL; Annette R. Seng, Staff Attorney

OPINION:
In your letter of August 18, 1978 you requested an opinion form this office concerning the procedure employed by the Board of Trustees for State Colleges and Universities in selecting an athletic director for the University of Southwestern Louisiana.

The information you provided us is as follows. In the Spring of 1978, the Board has requested that the President of Southwestern University recommended a person to be hired for the post of athletic director which was vacant at that time; however, the President refused to do so. It was the feeling of the Board of Trustees that the position at Southwestern University needed to be filled. Although the President [*2] of the University had the authority to recommend to the Board the name of a person to fill the position, for some reason, which was never stated, the President, Dr. Autement, declined to make such a recommendation.

The Board felt that his refusal left them no other choice than to appoint someone else to make a recommendation to fill the vacancy in question. The Board voted to appoint a special search committee to receive applications submitted to the University, to interview applicants and to recommend to the Board an individual for appointment to the vacant, unclassified administrative position of athletic director.

The special search committee met several times to interview applicants and on August 15, 1978 it held an open meeting where it voted to recommend one of the applicants to the Board of Trustees for approval, which meant on August 15th to receive the recommendation from the search committee, voted to hire the person so recommended for the position of athletic director at the University of Southwestern Louisiana.

The question posed by the Board at this time is:

"Did the Board judge property when it judged itself to be empowered by its bylaws and statutes to make the appointment [*3] of the athletic director of the University of Southwestern Louisiana."

Louisiana Revised Statute 17:3301, Subsection B, provides:

"Each board shall appoint such administrative officers and other employees of the board as it deems necessary and designate their titles. In maiking its appointments, each board shall give consideration to the recommendations of the president or chief administrative officer and, in proper cases, to the head of any college or university affected by an appointment." The bylaws of the Board of Trustees, in Article VIII, Section 1.C., provide:

"The president of each college or university shall have the authority to:

C. Select and recommend for appointment by the Board all employees and faculty members of his institution; and fill vacancies that occur as emergencies, when the salary outlay is within the budget appropriations provided for such positions, all subject to approval by the Board, in which body rests the sole power of appointment and confirmation of employees."

The authorities quoted above clearly authorize the president or chief administrative officer of a college or university to recommend persons to be appointed to positions by the board of [*4] trustees; however, it is equally clear that while the president may make his recommendation, the board has the power to appoint personnel. Louisiana R.S. 17:L3351(A) provides as follows:

"A. Subject only to the power of the Board of Regents specifically enumerated in Article VIII, Section 5(D) of the Constitution of the State of Louisiana, 1974, and as otherwise provided by law, each management board as a body corporate shall have authority to exercise all power to direct, control, supervise and manage the institutions of higher education under its control, including but not limited to the following: . . .

(10) Employ or approve the employment, fix or approve the salaries, and fix or approve the duties and functions of personnel for the Board and the University system in accordance with provisions of this chapter." The bylaws of the Board of Trustess, Article VI, Section 2, provide in part:

"In its supervision and management of the colleges and universities comprising the college and university system under its administration the Board shall have authority to: . . .

J. Employ or approve the employment, fix or approve the salaries, and fix or approve the duties and functions of [*5] personnel for the Board and the state colleges and universities."

The above-quoted statute and bylaw clearly provide that the Board of Trustees has the authority to employ or approve for employment personnel for the State Colleges and Universities under its supervision. While the head or president of each college has the authority to make a recommendation to the Board [R.S. 17:3301(B)] and has the authority to appoint administrative and professional staff for the college or universith he heads (R.S. 17:3305), he does not have the final authority to approve the hiring of personnel for his college or university. That authority for final approval rests with the Board of Trustees, as provided by the statutory authorities quoted above.

The bylaws of the Board of Trustees in Article V, Section 14, provide:

"As the need arises, the Board may create special committees with such function, powers and authority as it may determine. Special committees shall be established for temporary periods not exceeding the term of the president. Unless otherwise provided by the action of the Board for such a committee, the President of the Board shall determine the number of its members, shall appoint [*6] the members, and shall designate the chairman."

The bylaws of the Board of Trustees give it authority to set up special committees for special purposes for a limited period of time. The Board set up such a committee, designated the "special search committee", for the special purpose of reviewing applications and interviewing applicants who had applied for the position of athletic director of the University of Southwestern Louisiana.

The search committee was diligent in its review of the qualifications of the applicants and after conducting all the interviews, the committee was unanimous in its vote to recommend one particular individual to the Board of Trustees for employment as athletic director.

It is the opinion of this office that the Board of Trustees acted within the scope of its authority in this matter. While the statutes and bylaws do not expressly provide that the Board may appoint an athletic search committee, in the event that a president of a university fails or refuses to make a recommendation for employment, the framework of the statutes and bylaws appears to be broad enough to include the procedure that the Board used in this instance.

The refusal of the President [*7] to make a recommendation in this area places the Board of Trustees in the position where it could not take any action to fill the vacant position. Although the statutes don't specify that the President's recommendation is a requisite for the Board's hiring of an individual, the Board decided that it should have a recommendation provided to it by a person or a committee who could interview the applicants being considered. The Board decided to appoint a special committee to make the recommendation which ordinarily would have been made by the President of the University, had he not, as in this case, refused to give one.

Therefore, it is the opinion of this office that the procedure established and employed by the Board of Trustees was proper within the framework of the statutes and bylaws in a situation such as this where the president or head of a university or college refused to make a recommendation.