Mr. Perrin Jones Member, State Board of Higher Education 3000 East Race Avenue Searcy, AR 72143
Dear Mr. Jones:
This is in response to your request for an opinion concerning Amendment 33 to the Arkansas Constitution. Specifically, you have asked whether, under Amendment 33, the General Assembly has the authority to abolish and subsequently reconstitute the boards and institutions of higher education and place them all under either a coordinating or governing board. You have also asked whether such an action would allow the new governing board to initiate and terminate programs. In my opinion, the answer to both of your questions is yes.
The relevant provision of Amendment 33 is Section 2, which provides:
The board or commission of any institution, governed by this amendment, shall not be abolished nor shall the powers vested in any such board or commission be transferred, unless the institution is abolished or consolidated with some other state institution. In the event of abolition or consolidation, the new board or commission shall consist of a membership of five, seven, or ten.
Analysis of your questions must be limited to the constitutional language cited, as interpretive case law does not exist.
It appears clear from the above provision that the boards can be abolished, and their powers transferred only if their respective institutions are abolished or consolidated with other institutions. It must therefore by concluded that if the institutions are abolished, as you suggest, if follows that the boards may also be abolished. Additionally, because the provision contemplates consolidation, the same conclusion would result if all of the institutions were consolidated into one institution, and governed by one coordinating board.
In regard to your second question, it should be noted that this office has before opined that the power to initiate and terminate programs "is clearly a power vested in the board or commission of an institution of higher learning contemplated by Amendment 33." (Attorney General Opinion No. 88-154, a copy of which is enclosed). If the institutions were governed by one coordinating board, the power to initiate and terminate programs would lie with the new board.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.