Opinion: Carolina Beat

No. 843: What If Lawmakers Ignore the Law?

Every two years, members of the General Assembly are responsible for choosing half of the 32-member University of North Carolina Board of Governors. Board members make important decisions on issues such as tuition, and later this year they will select a new president for the system.
This year’s action by the Assembly has, however, led to controversy, with some members saying that legislative leaders ignored the law.

Elections to the board are governed by General Statute 116-6. According to the statute, nomination ballots should include “at least twice the number of candidates for the total seats open” and that “each house shall hold their elections within 30 legislative days after appointments to their education committees are complete.”

The controversy began in April, when Senate members began deliberations to fill their eight seats with a slate of candidates. The Education Committee’s list originally included 12 names, four short of the statutory minimum of 16.

On the day of the Senate vote, Sen. Jeanne Lucas, D-Durham, who cochairs the Senate Education-Higher Education Committee, announced that four candidates—Michael Brader Araje, Luther Hodges Jr., Robert Kennel, and John Spotswood Russell—had asked for their names to be withdrawn from consideration. Senate Republicans said it was the first they had heard that nominees had asked to withdraw, including Hodges, the only Republican on the Senate’s ballot.

Republicans asked why the nominees had withdrawn their names. Lucas would say only that they asked to be removed from consideration. When the vote was called, eight nominees were left for the eight open seats. Some Republicans voted for Hodges out of protest, but their votes weren’t valid. When the vote was over, the Senate’s half of the 2005 board selections were approved without any semblance of the competition required by state law.

In the House, the board selection process was delayed until June and was even less faithful to state law than in the Senate. To fill the eight open positions plus one vacancy for an unexpired term, the House Education Committee created a slate of nine names. As in the Senate, there was no competition.

A vocal critic of the House action was Rep. John Blust, R-Guilford. He said Democrat leaders waited until the last possible day to vote in June, with terms beginning July 1, to force a confirming vote. With 15 Republicans voting against a resolution approving all of the candidates, the chosen nine were elected. As in the Senate, the House selection process was noncompetitive.

“The General Assembly did not follow the law,” Blust said. “They handed out a resolution with the eight names that were going to be nominated and that was it,” he said. “They’ve changed what should be a General Assembly election into a speaker and president pro tem appointment.”

“How can we expect the public to follow the law that we passed that governs public behavior if we don’t follow the law ourselves?” he said.

The critical question here is not whether the individuals chosen by the Senate and House are capable, conscientious people who will do their best for the UNC system. Rather, the question is what happens when legislative leaders decide to ignore state law and adopt their own procedures? If they can stamp out the statutory requirement that voting for board positions be competitive, why can’t they similarly avoid any other procedural requirement that seems inconvenient?

Last month, the John W. Pope Center for Higher Education Policy released a study, “Governance in the Public Interest,” which concluded that the state would be better served if the members of the board were appointed by the governor. Since the actions in the House and Senate discussed here make it plain that the current system is tantamount to appointment by top legislative officials, the idea of gubernatorial appointment becomes even more appealing. While the governor might select people who have much knowledge about higher-education issues and a strong desire to act diligently in the best interests of the state, the system of legislative selection we now have seems likely to fill the board with political supporters of the legislative leaders.

Shannon Blosser ([email protected]) is a staff writer with the John W. Pope Center for Higher Education Policy in Chapel Hill.