V.Vm A-m-0-y GENERAL
OF TEXAS
&Jfflw.N W37ll
JOHN Ia. IalLL
A-R- o-Ax.
August 31, 1977
Honorable J. C. Martin, Jr., Opinion No. H-1045
President
Board of Directors Re: Selection of a
Texas A & I University chancellor and president
Kingsville, Texas 78363 at Texas A & I University.
Dear Mr. Martin:
You request our opinion concerning the procedure by-
which certain appointments to administrative positions were
made by the Board of Directors of the Texas A & I University.
Texas A C I University has campuses at Kingsville,
Laredo, and Corpus Christi. The Legislature recently en-
acted House Bill 944 which establishes and designates these
institutions the University System of South Texas, consist-
ing of Texas A & I University, the renamed Laredo State
University, and Corpus Christi State University. The name
of the Board of Directors of Texas A & I University is changed
to the Board of Directors of the University System of South
Texas, and its governing authority over the component in-
stitutions is continued. The bill becomes effective September
1, 1977.
At its meeting held July 7, 1977, the Board named the
acting chancellor as chancellor of the University System of
South Texas and named the executive vice president of Texas
A & I University at Corpus Christi as president of Corpus
Christi State University. Each of the persons appointed
had served in an acting capacity in the position to which he
was appointed for more than a year. You ask the following
questions about these appointments:
1. May the Board promote from within
without advertising the vacancy and
without conducting a search?
\
2. If the answer to the above is affirma-
tive, may the Board make such a decision
under the agenda item "Executive Session,
Discussion of Personnel Changes," without
announcing the pending action?
p. 4303
Honorable J. C. Martin, Jr. - Page 2
The Board has broad authority to manage and control
Texas A & I University. Ed. Code 98 95.21; 104.11; 104.41 -
-43; 104.91 - .92. Texas A & I University has operated
since 1972 as a system with the position of chancellor as
chief executive officer with the approval of the Coordinating
Board and with operating funds appropriated by the Legisla-
ture. General Appropriations Act, Acts 1975, 64th Leg., ch.
743 at 2763. The Board's authority to operate as a system
with an executive officer of the system is made express by
House Bill 944. A prospective appointment to a position made
by a body empowered to fill that position is valid. -See
Attorney General Opinion V-927 (1949).
The governing body of a State University has considerable
discretion in exercising its powers, including its power to
appoint administrators. The courts will not interfere with
the exercise of discretion by school directors in matters
confided by law to their judgment unless there is a clear
abuse of the discretion or a violation of the law. Foley
v. Benedict, 55 S.W.Zd 805, 808, 810 (Tex. 1932); Cornette
v. Aldridge, 408 S.W.2d 935 (Tex. Civ. App. -- Amarillo
1966, mand. overr.). See Faro v. New York University, 502 F.2d
1229 (2d Cir. 1974); GGn v. Board of Regents of Texas Tech
University, 474 F.2d 594 (5th Cir. 1973) reh. den.
We have found no law that requires the Board to
advertise vacancies in administrative positions, conduct
a search for applicants, or otherwise engage in particular
recruitment practices. However, we note that recruitment
practices have been challenged as discriminatory under the
1964 Civil Rights Act. 42 U.S.C.A. 9 2000e - 2(a)(l), (21,
which orohibits discrimination in employment on the basis Of
race, color, religion, sex, or national-origin. See United
States v. Inspiration Consolidated Copper Co., [lml 6 mpl.
Prac. Dec. (CCH) (18918; Strain v. Philpott, 119711 4 Empl.
Prac. Dec. (CCH) 117521. 5 se also V.T.C.S. art. 6252-16.
Thus. the Board has the aiXKoritv to select and appoint
administrative officers by any procedure it determines, as
long as its action is not unreasonable, arbitrary, capri-
cious, or discriminatory.
Your second question is whether the notice for the
action taken complied with the Open Meetings Law, section
3A, article 6252-17, V.T.C.S. Notice posted by the Board
for its July 7, 1977, meeting included a copy'of the agenda
for the meeting, which contained the following item:
Honorable J. C. Martin, Jr. - Page 3
Executive Session
18. Discussion of personnel changes
(pp. 21-26).
The action taken by the Board was the approval in
open meeting of the following motion:
"In view of the official creation of
our System and in order to be consistent
with the printed University System of
South Texas budget, that Dr. D. Whitney
Balladay be named Chancellor of the
University System of South Texas and that
Dr. B. Alan Sugg be named President of
Corpus Christi State University and that
his name be inserted in that budget."
The Board may meet in executive session to consider the
appointment, employment, evaluation, reassignment, duties
discipline or dismissal of officers and employees, providing
it first convenes in an open session for which the requisite
notice has been given and publicly announces that a closed
session will be held under a specified section which autho-
rises the holding of the closed session. V.T.C.S. art.
6252-17, 5 2(a), (9). See Attorney General Opinion H-496
(1975). Written noticeof the "date, hour, place, and
subject of each meeting held by a governmental body" must
be given as prescribed by section 3A of the Open Meetings
Act. The notice must be "sufficiently specific to apprise
the public in general terms of each subject to be discussed."
Attorney General Opinion B-662 (1975) at 3. The notice
should set out any special matters to be considered or any
matter in which the public has a particular interest. Attorney
General Opinion M-494 (1969).
The adeauacv of notice concerning the subject matter
at a meeting-was-at issue in Lower Colorado River Authority
v. City of San Marco?., 523 S.W.2d 641 (Tex. 1975). LCRA
attempted to increase electric rates in the city of San
Marco6 at a meeting held October 19, 1972. The notice of
that meeting made no reference to rates. At another meet-
ing on May 24, 1973, notice of the meeting included a state-
ment that the Board would consider other matters concerning
the Authority's operations
including the ratification of the prior
action of the Board taken on October 19,
1972, in response [sic] to changes in
, ,
. ’
Honorable J. C. Martin, Jr, - Page 4 (H-1045)
electric power rates for electric power
sold within the boundaries of the City
of San Marcos, Texas.
The Texas Supreme Court considered this notice and held:
The notice of the 1973 meeting is not
as clear as it might be, but it would alert
a reader to the fact that some action would
be considered with respect to charges for
electric power sold in San Marcos. In our
opinion the notice was sufficient to comply
with the statute.
Id. at 646. --
See also Texas Turnpike Authority v. City of Fort
Worth, 20 Tex. Sup. Ct.~ J. 492 (JULY 27, 1977) .
In Open Records Decision No. 103 (19751, we held that
information which would disclose the identity of an employee
evaluated and discussed in a properly closed session, and
on which the board took no official action, is excepted
from required public disclosure by section 3(a) (1) and
3(a) (2) of the Open Records Act, article 6252-17a, V.T.C.S.
Information reflecting discussion of personnel matters
properly held in closed session is excepted from required
disclosure under sections 3(a) (1) and 3(a) (2) of that Act.
Open Records Decision Nos. 93, 82, 81, 68 (1975); 60 (1974).
The primary interest protected by section 2(g) permit-
ting personnel matters to be discussed privately is that in
avoiding possible unjustified harm to the reputation of the
individual officer or employee under consideration. See
Attorney General Opinion H-246 (1974). While this isan
important interest, it cannot be permitted to completely
eliminate the public's right to be notified with reasonable
specificity of the subject matter to be considered at a
meeting of a governmental body, particularly when the
subject is one in which the public can reasonably be expected
to have a special interest, such as the appointment of
the chief executive officers of a university system and a
state university. While the public is not entitled to ob-
serve or participate in the Board's closed discussion of
the qualifications of individuals under consideration for
appointment to such a position, we believe that the public
is entitled to reasonable notice that the Board will consi-
der filling such positions at its meeting. In addition, any
vote or other final action on a matter discussed in closed
session must be taken in an open meeting properly noticed in
p. 4306
.
Honorable J. C. Martin, Jr. - Page 5
accord with section 3A. V.T.C.S. art. 6252-17, 9 2 (1).
Thus, the legislature has decided that the governing body
must inform the public of the fact of its action, even though
it may deliberate in private.
In our view, an item stating only that the Board
would meet in executive session on "Discussion of personnel
changes" did not provide adequate public notice that the
Board would consider acting to fill the positions of chan-
cellor and university president at that meeting. The term
"personnel" is so general that it could apply to a large
number of subjects that might come before the Board. Con-
sequently, we do not believe the notice given complied with
the Act's subject matter notice requirement in this instance.
It is possible that the appointments will not be judi-
cially challenged, but if it is properly challenged action
taken at a meeting not held in compliance with the Open
Meetings Law is voidable by the courts. Lower Colorado River
Authority v. City of San Marcos, supra; Attorney General
Opinions H-662, H-594 (1975). If the Board decides to con-
sider ratifying the appointments at a future meeting, it
must post adequate notice of such proposal. -See Attorney
General Opinion H-419 (1974).
SUMMARY
The Board of Directors of the Texas
A & I University system has authority
to select and appoint administrative
officers by any procedure it chooses,
as long as its action is not unreasonable,
arbitrary, capricious, or discriminatory.
Notice of an executive SeSSiOn on
"Discussion of personnel changes" is not
sufficiently specific as to subject matter
to comply with the Open Meetings Act
notice requirement in regard to the appoint-
ment of a university system chancellor and a
university president, since the positions
are ones in which the public can reasonably
be expected to have a special interest.
-
Honorable J. C. Martin, Jr. - Page 6 (R-1045)
Very truly yours,
Attorney General of Texas
APPROVED:
jst
p. 4308