Monday, April 2, 2018

Changes to The University of Tennessee Board of Trustees

In recent weeks, the Tennessee General Assembly has been wrestling with a bill (house and senate versions here and here) that changes the governing board of The University of Tennessee (UT), where I teach.  Non-controversially, the UT FOCUS Act, as it is commonly called (Focusing on Campus and University Success at UT), decreases the size of UT's board of trustees.  Currently, the board of trustees comprises 27 members--five ex officio members and 22 appointed members.  Tenn. Code Ann. § 49-9-202.  Most would agree that 27--or even 22--is a relatively unmanageable number of board members, without good cause, for most governing boards.  But the composition requirements for the board (with this newly reduced number of trustees) are where the rubber hits the road.

The Bill Summary for the measure, as reported on the Tennessee General Assembly website, succinctly describes the current board composition, which is established by statute.  I include the relevant text from the Bill Summary here.

The ex officio members are: the governor, the commissioner of education, the commissioner of agriculture, and the president of the university, who are voting members; and the executive director of the Tennessee higher education commission (THEC), who is a nonvoting member. Of the 22 additional members: one must be appointed from each congressional district (presently there are nine congressional districts); two additional members each must reside in Knox and Shelby counties; one additional member each must reside in Weakley, Hamilton, and Davidson counties; one additional member must reside in Anderson, Bedford, Coffee, Franklin, Lincoln, Moore or Warren County; one additional member is a non-Tennessee resident; two additional members, one voting and one non-voting, must be members of the faculty of the University of Tennessee who served as faculty senate president, or the equivalent, at a University of Tennessee institution during the academic year immediately preceding appointment as a trustee, appointed according to a sequence detailed in present law; and two additional members who are students at a UT institution, one voting and one nonvoting, appointed from the various institutions on a rotating basis pursuant to present law.

Present law requires that at least one third of the appointive members be members of the principal minority political party in the state and that at least one third of the appointive members must be alumni of the University of Tennessee. All appointive members are appointed by the governor subject to confirmation by the senate, but appointments are effective until adversely acted upon by the senate. In making appointments to the board of trustees, the governor must strive to ensure that at least one person appointed to serve on the board is 60 years of age or older, and that at least one person appointed to serve on the board is a member of a racial minority. Present law requires that the membership of the board reflect the percentage of females in the population generally. Appointive members serve terms of six years beginning June 1 of the year of appointment, and members are eligible to succeed themselves.

(emphasis added)  Of particular importance for purposes of this post are the italicized portions of the description.  The UT FOCUS Act calls for no faculty or students--no state employees altogether--on the board as voting or non-voting members.  I am concerned about this aspect of the bill because of its effect on the expertise of UT's board.  No amount of board orientation can imbue board members with the knowledge that faculty and students have.

The apparent tension here is between the value of that expertise--boots-on-the-ground knowledge of shared governance, curriculum design and execution, the role of co-curricular and extra-curricular programming, faculty/staff/student relations, and other matters unique to current participation in the university's campus communities--and a perceived conflict of interest (since faculty and students would be effectively governing themselves).

The Association of Governing Boards of Universities and Colleges (AGB) and the American Association of University Professors (AAUP) agree that university governing boards generally lack knowledge of faculty affairs.  A 2017 publication of the AGB notes in this regard:

Participants in all three categories in our listening sessions (board members, presidents, and faculty) acknowledged—and indeed emphasized—that there is a huge information gap between boards and faculty. They noted that board members often have very little— if any—understanding of the nature of faculty work, of the nature of academic culture, of the real meaning of academic freedom, and of the history and importance of faculty self-governance and the faculty role in shared governance. . . .

The AAUP website features a report on a 2012 Cornell University study of faculty trustees that includes a related observation.

Discussions of “best practices” for governing boards consistently cite improved relationships with the faculty as one of the characteristics of highly effective boards. We are in an era of increasingly “activist” boards, leading to significant mutual distrust between boards and faculty members and creating an impetus for improving faculty-board relations.

As a former faculty senate president at UT Knoxville, I understand and appreciate all of this.

I also understand that conflicts of interest can and do exist on governing boards of all kinds.  In fact, many governing boards include the governed among their members.  This is particularly true on non-profit governing boards.  Moreover, many boards have members with conflicting interests of one kind or another.  There are well-worn procedures to address board decision-making on issues involving board member conflicts.  As most corporate law experts know from their work, it is not necessary to resolve all actual or potential conflicts in favor of keeping constituencies off the governing board altogether.  By removing some, but not all, board members with conflicting interests, those establishing board composition requirements are effectively "playing favorites" as among those with conflicting interests.

Accordingly, I am of the view that the benefits of faculty (and perhaps even student) participation on university governance boards outweigh the concerns over conflicting interests.  Yet, structural solutions (even if an incomplete resolution of the expertise problem) are not embraced by all.  The researchers involved in the Cornell study mentioned above note the divergence of views and attributes them to the different emphasis placed on conflicting interests versus shared governance.

While both faculty and governance groups have advocated for greater dialogue between faculty members and boards of trustees, there is considerable disagreement as to whether faculty members should serve on boards of trustees. Those opposed to the inclusion of faculty members on boards, such as the Association of Governing Boards of Universities and Colleges (AGB), emphasize the possible conflicts of interest. Those in favor emphasize the principle of shared governance.

(Cornell, 2012)  Yet, they also note that, as of 2010, more institutions were including faculty on their governing boards.

A 2010 article in Trusteeship, the magazine of the AGB, reported the findings of an AGB survey on board membership, which indicate that a growing number of boards of trustees are involving faculty members as either voting or nonvoting members. Voting faculty members served on the boards of trustees of 14.9 percent of private institutions and 13.3 percent of public institutions. Another 14.1 percent of the private institutions and 9.7 percent of the public institutions had nonvoting faculty members on their boards.

(Cornell, 2012)  I do not know what the current trends in this regard are, but I do know that in 2014 Penn State (where a friend was faculty senate president a few years ago) added a student and faculty member to its governing board--while also enlarging its board to 36 members.  See here.  While I agree with the inclusion of faculty and students on university governing boards, I have doubts that a board of 36 members can govern efficiently or effectively.

Although productive dialog between and among board members, faculty, and students can occur outside board meetings in various ways--committees and task forces that include faculty members, advisory boards of various kinds (which is what is proposed here in Tennessee), and the like--these alternative structures and interactions may, in effect, constitute no more than window dressing.  They can be ignored and the board can and may act without the relevant expert voices in the room.  Expert voices in the room can clarify proposals and rationales and correct misapprehensions.  They can prevent boards from becoming insular and developing an "us versus them" mentality on key university governance issues.

There is certainly more to say on this topic.  But this post is already too long.  The UT FOCUS Act narrowly passed in the House last week after having passed in the senate in a slightly different version.  See, e.g.here.  After reconciliation, it will be headed to the governor's desk.  He is likely to sign the bill into law since he proposed it and it gives him power to appoint the newly constituted board.  

I hope that he will use that power wisely.  Unbiased change leaders who do not do business with or derive pecuniary benefit directly or indirectly from the state could be good candidates.  But I also recommend that the governor look seriously at recently retired UT professors with an understanding of institutional governance.  There are a number of those folks out there that I know.  They can provide important knowledge and expertise, and they have no inherent conflicts of interest (other than, perhaps, as to retirement-related issues).
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Post Script: A reader informed me that the final bill passed in the Tennessee House of Representatives includes an amendment providing for a board slot for a nonvoting student and a committee slot for a current faculty member.  Here is the description of that amendment, in relevant part, from the General Assembly's website (emphasis added): 

ON MARCH 29, 2018, THE HOUSE SUBSTITUTED SENATE BILL 2260 FOR HOUSE BILL 2115, ADOPTED AMENDMENT #3, AND PASSED SENATE BILL

AMENDMENT #3 revises various provisions of this bill, as follows:

(1) This amendment provides for one nonvoting student member on the board of trustees and establishes provisions for the appointment of such a student from each institution on a rotating basis;
(2) This amendment clarifies, in regard to the prohibition on employees of an institution of higher education being appointed to the board, that the prohibition does not apply to a student member or faculty member appointed to the board or a committee, as applicable, under this bill;
(3) This amendment removes the provision whereby in confirming appointments under this bill or removing members from the board, the senate must vote prior to the house voting for confirmation or removal; and
(4) This amendment requires that the standing committee with responsibility for oversight of academic affairs and student success include one voting faculty member and provides for a rotating schedule of appointments from the various UT institutions.

Thanks to the reader for these additional facts.  I remain dissatisfied with the lack of faculty expertise on the board as a whole.  But these changes represent a step in the right direction.  We'll see what the reconciled bill looks like . . . .

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