Promoting Good (and Bad) Governance Policies and Practices in the States

This year, leaders in several states, often working together, succeeded in promoting effective governance practices through policy changes or defeated proposals that threatened the autonomy and independence of citizen governance. In other states, new master plans or public agendas will require effective governance practices in order to be successful.

Perhaps the clearest example of state leaders working together to support public higher education governance was in Virginia, where the governor and General Assembly extended the Virginia Commission on Higher Education Board Appointments. The commission, a creation of former governor Mark Warner back in 2002 (with AGB's assistance), screens candidates for the governing boards of the state's colleges and universities to determine their merit and qualities for service. The legislation writing the commission into law had set a July 2008 sunset date, but with the support of current governor Tim Kaine the General Assembly repealed the sunset date, thus allowing the commission to continue its good work.

This spring, the Virginia General Assembly also demonstrated an awareness of the conditions necessary for effective governance when it refused to advance legislation that would have transferred appointing power for a majority of seats on the College of William and Mary Board of Visitors to its alumni association in the midst of a highly charged political situation. In addition, the General Assembly respected the privacy of institutional presidents' correspondence by refusing legislation that would have made such documents public records.

Similarly, legislators in Mississippi defeated a proposal that would have interfered with the work of trustees in conducting presidential searches. Angered by what they perceived to be a lack of openness in the search process for the Mississippi State University president, legislators inserted into a bill a requirement that the Mississippi Board of Trustees of State Institutions of Higher Learning reveal the names of all finalists for institutional presidencies in order to receive any state funding. However, the requirement was dropped in conference committee. Imposing such a requirement on the board would have deterred many qualified candidates who were interested in a presidency but did not want their current employer to know.

In West Virginia, the governor, legislature, and the state's community colleges worked together to promote effective governance over the objections of some community college alumni. The state currently has five boards that govern both a community college and a four-year university, despite the institutions' different missions. With the increasing complexity of oversight responsibilities facing boards, leaders there worried that continuing such an arrangement could impair the ability of those boards to effectively oversee both institutions. This year, the state provided the five community colleges with their own board focused solely on the issues and mission of that institution.

In response to a report by the State Commission of Investigation, a state watchdog agency, the New Jersey Legislature is focused on improving accountability and oversight mechanisms at state universities. With some substantial caveats, the two similar plans currently under consideration in the legislature are largely in line with best practices. Both plans would require institutional governing boards to create several policies that are crucial for all boards to have, including whistleblower and code of conduct policies, and would impose several auditing and financial accountability standards.

The more extensive of the plans also outlines several new responsibilities of the Commission on Higher Education, including examining institutional capital plans in light of debt load and making recommendations on institutional board member appointments. Examining capital plans in light of systemwide debt could justifiably fit within the commission's role as a coordinating and oversight agency, but involving the commission in board member selection would significantly expand the customary responsibilities of a coordinating and oversight agency.

The more extensive plan also requires each instutional board to have a set of board committees and to involve all board members in development and fund-raising, which is a noble but short-sighted requirement. While fund-raising is critical to modern public universities, board members all have different strengths. More generally, such a requirement also constitutes a legislative interference in internal board operations, as board planning and implementation needs to be directed at the board, not legislative, level.

The New Jersey situation serves as a natural example of AGB's argument in The New Ethics of Trusteeship that governing boards need to take an active role in addressing ethical and accountability issues to preclude action by the state. In light of the state watchdog agency report and the problems at the University of Medicine and Dentistry of New Jersey (UMDNJ) that prompted the report, institutional boards in New Jersey have already been making significant pre-legislative changes to strengthen their governance.

While promoting good governance practices and resisting those that harm effective governance may seem like an easy sell to governors and legislators, politics and privilege can still impede efforts at improving governance, as Gov. Bob Riley of Alabama can attest. Riley and two-year system chancellor Bradley Byrne have been waging an uphill battle over the past year to reform the state's community college system, which has been subject to conflicts of interest, some involving state legislators. With the support of Riley, Byrne tried to institute a ban prohibiting legislators from working in the two-year system. However, a court injunction stopped the ban. Legislation was also introduced to effect a ban, but lawmakers did not support it. While Byrne, Riley, and others continue their efforts to insulate Alabama's two-year system from political corruption, the immediate future is not promising.

Similarly in Florida, several key legislators attempted to undermine the state's public university governance structure this spring. As the Board of Governors of the State University System pursued a lawsuit to wrestle control over tuition away from the legislature, legislative leaders reacted by attempting to pass a constitutional amendment that would have eliminated the board and replaced it with cabinet-level oversight of higher education. The amendment had substantial early momentum, but stalled in the House as the session ended.

Proponents argued that the amendment would increase accountability by putting elected officials in charge of higher education, as it sought to replace governor-appointed citizen trustees with the attorney general, commissioner of agriculture and consumer services, chief financial officer, and commissioner of education (all elected cabinet members). However, arguing that such a structure improves accountability would require that voters evaluate and elect cabinet members based upon their governance of higher education instead of their primary cabinet responsibilities. In addition to concerns over accountability, such an oversight mechanism would cut against good governance practices in many respects. It would have politicized higher education, removed citizen oversight, and resulted in a board that would be too small to effectively oversee such a large system.

Adoption of the Florida amendment would also have perpetuated the constant change in higher education governance that has plagued the state. In 2001 the legislature dissolved the Board of Regents, which governed the State University System, and delegated oversight responsibilities to institutional boards of trustees. However, voters then created the Board of Governors through a constitutional amendment in 2002 to oversee the university system. Since this substantial change, higher education governance has been in flux as the Board of Governors, local boards of trustees, and the legislature have struggled to determine the division of responsibilities and establish viable working relationships. Simply not enough time has passed to determine if the current governance structure is working before adopting a radically different structure. Perhaps most disconcerting is the possibility that legislative assaults on the governance structure will continue, particularly as the lawsuit over tuition-setting authority is decided.

Like Florida, Massachusetts is facing a potential politicization of board operations as a result of Gov. Deval Patrick's reorganization plan for higher education. The plan passed with substantial legislative support and provides him with substantial immediate influence over the direction of higher education by granting him 5 immediate appointments on the Board of Higher Education, the state coordinating board, and the University of Massachusetts System board (plus any additional vacancies in the near future). Most importantly though, the legislation provides Patrick with an authority, unique among governors, to appoint the UMass system board chair and brings with it the potential to subject the university system to statehouse politics and the electoral cycle, a sharp divergence from the autonomy that characterizes healthy governance and allows for long-range planning.

However, it should be noted that during his tenure as governor, Patrick has also showed a concern for merit selection of trustees by restoring Massachusetts' Public Education Nominating Council. The council is a screening committee that is providing Patrick with qualified candidates for board service under the leadership of an experienced and knowledgeable council chair.

Also like Florida, this spring Oklahoma faced a constitutional amendment that would have been extremely damaging to the work of governing boards. The amendment passed one chamber easily before stalling at the end of the session. The Oklahoma amendment was particularly troublesome because it would have allowed governors to replace up to 40 percent of gubernatorial appointments on any board in the first 12 months of the governor's term. The amendment would have meant that a governor could almost immediately construct a board dominated by his or her appointments and remove trustees with whom he or she disagreed. This would have subjected boards and the institutions they govern to potentially wild swings in composition and direction every four years and subjected trustees to removal for making unpopular but important decisions.

Some states are undertaking strategic plans and ambitious public agendas to expand access and improve graduation rates that will require more from governing boards if the plans and agendas are to succeed. Ohio, for example, has recently released a strategic plan that holds great promise for the state. A common theme in plans such as Ohio's is the use of lower division and community college campuses to improve access for non-traditional students and lower the cost of delivering baccalaureate degrees.

These plans and agendas also often set lofty goals for the state and for higher education, goals which require substantial state investment and require governors, legislatures, the business community, and governing boards to understand the necessity of interpreting progress towards such goals in the context of state support. A potential example is Kentucky, where the state's postsecondary council has announced a goal to double the number of college graduates by 2020. The postsecondary council's goal seeks to achieve Kentucky's 1997 public agenda to increase opportunity, degree production, income, and the overall quality of life of state residents. However, higher education in Kentucky is facing a 6 percent budget cut between this year and last year that will make even maintaining enrollment and student success at current levels a challenge, much less increasing degree production.

Ohio faces a similar situation, as the University System of Ohio's ten-year strategic plan sets as a primary goal increasing the number of students in higher education by almost 50 percent. The plan also calls for increasing state support by $1,100 per full time student at the same time. Although such a substantial increase in state support will be hard for the legislature and governor to appropriate, the funding increase is essential to the goal of expanding enrollment, as most progress will be made in underserved populations that often require additional outreach and academic support. As such, the success of the chancellor, governing boards, and institutional leaders in achieving the plan's academic goals cannot be judged outside of progress toward the plan's goals for financial support.

Prepared by Greg Ogle, assistant for Policy Analysis, Ingram Center for Public Trusteeship and Governance.