Bills to Expand Rutgers’ Board of Governors Make Progress in Legislature

Chase Brush | June 13, 2014 | Education, Politics
Controversial bills to add four governors to board could face state and federal constitutional challenges

Rutgers Visitors Center
A controversial endeavor to expand Rutgers University’s board of governors made headway yesterday when two identical bills — one in the assembly, sponsored by Speaker Vincent Prieto (D-Hudson), and one in the senate, sponsored by Senate President Steve Sweeney — were advanced and amended, respectively. The first (A-3046) was passed by during the Senate Budget Committee hearing, and amendments to the second (S-1860) were approved on the Senate floor.

What’s more, the measures were advanced and amended despite – or because of — a legal opinion by the Office of Legislative Services released Wednesday, which found that the bills could violate both state and U.S. Constitution.

Both bills, which have served as the subject of serious debate among university administrators and top lawmakers over the past two weeks, would increase the total number of governors on the state university’s main governing board to 19, up from 15, by adding four politically appointed members.

As spelled out by the original versions of the bills, two of those additional members would be appointed by the governor, with each of the remaining two appointed directly by the Senate president and the Assembly speaker.

Under the new senate version of the bill, all four of the additional members would be appointed by the governor. Two would have to possess medical backgrounds, with one appointed at the recommendation of the Assembly Speaker. Another two would have to be selected from among the board of trustees, Rutgers’ other governing body, with one appointed at the recommendation of the Senate president.

Sweeney, who proposed the amendments earlier this week, has argued that the changes would “improve the ability of the board to effectively govern Rutgers at an important time in the school’s history,” referring primarily to its recent merger with UMDNJ, the state’s largest medical school.

But the new amendments, which circumvent at least one objection to the legislation — namely, that legislative direct appointments, as opposed to executive direct appointments, are illegal — do little to absolve other issues, opponents say. For one thing, the board was already expanded from 11 to 15 members back in 2012 following the Rutgers-UMDNJ restructuring, precisely to account for its increase in size and scope.

For another, any alterations to the university’s governing structure must be approved by both board of governors and board of trustees — a concern that was reified Wednesday, when the state Legislature’s own counsel concluded that the bills may be unconstitutional.

According to the Office of Legislative Services’ memo, any change to the governors board made without the consent of the Rutgers board of trustees could be in violation of the Rutgers Act of 1956, deemed a “legislative contract” between the state and university administrators. That contract, struck between the state and university administrators when the school decided to become the state university in 1956, requires the trustees approve most major transactions involving Rutgers governance or real estate.

Rutgers is one of only three universities that has two governing bodies. The board of governors was created in 1956 and is responsible for setting tuition, appointing the school president, and controlling the annual budget. The board of trustees, made up of 59 voting and 31 nonvoting members, was the original governing body of the university since its founding in 1766.

“For reasons stated below, the reconfiguration of the Board of Governors without the approval of both the Board of Trustees and the Board of Governors may trigger the Board of Trustees’ right to withdraw the properties and funds controlled by the Trustees prior to 1956,” the memo reads.

By that logic, any increase in the number of governors should also respect prior iterations of the Rutgers Act, which set the balance of power between publicly and internally appointed members at six by the governor and five by the trustees themselves, according to Gerald Harvey, chairman of the Rutgers board of governors. Harvey, who testified in front of members of the Senate Budget committee at yesterday’s hearing, called the amendments “proactive” but stressed they did not go far enough.

“This fundamental recognition of the board of trustees (as they are noted in the amendments) eliminated for me a core reason for my prior opposition, however it is a substantial alteration of the provisions regarding Rutgers self-governance and therefore would require an affirmative vote from the board of trustees,” he said. “I must tell you that as amended this bill will be affirmatively opposed by a majority of the trustees and by a number of the members of the board of governors.”

He added that, although the amendments require two of the new appointees be selected from among the board of trustees, they are still nominated by the governor — not by the trustees themselves.

“If the board were to be expanded to 19, the majority of the trustees and governors with whom I have spoken have said that if it’s 19 then it should be 10 appointed by the governor and nine appointed by the trustees,” he said. Currently, eight board members are appointed by the governor and seven are appointed by the trustees.

Andrew Shankman, a Rutgers-Camden history professor who, along with many opponents of the bill, view the measure as yet another attempt by the Senate President to gain greater control over Rutgers $3 billion budget, told NJ Spotlight the new legislation is “sort of a wolf in sheep’s clothing.” He added that the new amendments do nothing to approach critics’ primary objection, which is that the trustees and governors must both sign off on the changes before anything else.

“The fact is that the governor already appoints some members of the board of trustees, so he could just choose his political appointees [from among the trustees] and put them on the board of governors,” he said. “So this is the ultimate bad faith actor here.”

Shankman, who testified against the bill in front of a Senate Higher Education Committee hearing on June 2, noted that this is not the first time Sweeney has pushed for more political control over the 65,000-student university. The South Jersey Democrat lead a charge to merge Rutgers-Camden with Rowan University in 2012, and proposed a similar bill last year still pending in the Senate that would abolish the board of trustees altogether.

The Assembly approved its version of the bill yesterday 7-5, while the Senate only approved amendments to S-1860. The latter still needs to be posted during another Senate session for a vote by the full Senate. According to Dorothy Cantor, chairwoman of the board of trustees, university administrators are prepared to take legal action against the state should the bills pass the Senate.