Legal background of LSU Board of Supervisors Authority
A movement to assure the independence of the LSU Board of Supervisors, as well as other higher education management boards, resulted from the LSU scandals of 1939-40.
James Monroe Smith, who had been appointed President of LSU by Governor Huey P. Long, was convicted and jailed for embezzling $500,000. In all, approximately 20 state officials were indicted in a scandal that snaked all the way to Huey’s successor, Governor Richard W. Leche. Leche himself went to federal prison for 10 years in a kickback scheme.
As Time Magazine reported in its July 10, 1939 issue:
“James Monroe Smith was dean of the College of Education at Southwestern Louisiana Institute at Lafayette when Huey snatched him to Baton Rouge. Tall, bald, Dr. Smith shaped into an ideal academic puppet. Huey began to spend $13,500,000 on L. S. U. for sumptuous buildings, a monster swimming pool, "professional" footballers, a huge Medical Center in New Orleans. Contractors, politicians and public jobsters fattened, and the student body jumped from 2,100 to 8,550. Midway in this adventure into education, Huey announced: "If there's any title I'm proud of, it's Chief Thief for L. S. U."”
As Mary Hebert stated about President Smith in “Remembering the Scandals”:
“He circumvented the Board of Supervisors to give himself and Jackson thousands of dollars in pay raises and Caldwell a 2 percent kickback on all University construction.”
(ORAL HISTORY IN LOUISIANA, Published by the T. Harry Williams Center for Oral History, Louisiana State University, Vol. III No. 2 Spring 1995)
Out of this atmosphere, the Governor, Legislature and the people of Louisiana took action to protect LSU from the pressures of Louisiana politics.
Article XII, Section 7 of the Louisiana Constitution of 1921 was amended to provide that “The Louisiana State University and Agricultural and Mechanical College Shall be under the direction, control, supervision and management of a body corporate to be known as the ‘Board of Supervisors of Louisiana State University and Agricultural and Mechanical College…”
That constitutional provision and the autonomy of LSU have been recognized by the courts in several cases, including Student Government Association of LSU v. Board of Supervisors, 264 So.2d 916, (1972) where the Supreme Court stated:
“The history of this constitutional provision is well known. In his 1940 message to the Legislature, the Governor of Louisiana recommended legislation ‘which will guarantee a de-politicalization of our . . . universities.’” Later in the message, he noted that Louisiana State University had been ‘the storm center’ of a politicalized educational system. (Official Journal of the Senate (1940) pp. 24, 26.)
To carry out this recommendation, four members of the Senate introduced a Joint Resolution amending Article XII, Section 7 of the Constitution vesting the ‘direction, control, supervision and management’ of the affairs of the University in the Board of Supervisors. Adopted by the Legislature as Act 397 of 1940, this amendment to our Constitution was ratified by the people in a general election. It is quite clear that the purpose of this amending, in keeping with the executive recommendation, was to remove the daily affairs of the University from both the Governor and Legislature and place them under a “nonpolitical board.” (Emphasis added)
This holding has been cited in Roy v. Edwards, 294 So.2nd 507, (La. 1974). Further, in Hodge v. Board of Supervisors, 868 So. 2nd 124 (1st Circuit, 2004), writ denied, the Court stated:
“Historically, this state has given autonomy to its colleges and universities to manage their own affairs.” (at page 136)
It is from these beginnings that the modern LSU Board of Supervisors has grown.
Constitutional authority and Oath of Office
The Board of Supervisors of the Louisiana State University and Agricultural and Mechanical College is a constitutionally created institution that derives its duties and authority from the people of the State of Louisiana. An outline of that constitutional framework is set out below. The Oath of Office setting out the duties of the Board Member is included here.
Constitutional Authority of the Board of Regents and Board of Supervisors
(Emphasis and brackets added, deletions made and order changed for clarity purposes by Ray Lamonica, July 2004)
Powers of LSU Board of Supervisors
Louisiana Constitution of 1974, Art. 8, Sec. 7)
Section 7.(A) Creation; Powers. The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College [is created as a body corporate.]
Subject to powers vested by this Article in the Board of Regents, each [management board] shall supervise and manage the institutions, statewide agricultural programs, and other programs administered through its system.
Powers of Board of Regents
Louisiana Constitution of 1974, Art. 8, Sec 5.
Section 5 (E) Powers Not Vested. Powers of management over public institutions of postsecondary education not specifically vested by this Section in the Board of Regents are reserved to the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College . . . as to the institutions under [their] control . . .
(D) Powers [vested]. . . . The Board of Regents shall have the following powers, duties, and responsibilities relating to public institutions of postsecondary education:
(1) To revise or eliminate an existing degree program, department of instruction, division, or similar subdivision.
(2) To approve, disapprove, or modify a proposed degree program, department of instruction, division, or similar subdivision.
(3)(a) To study the need for and feasibility of creating a new institution of postsecondary education, which includes establishing a branch of such an institution or converting any non-degree granting institution to an institution which grants degrees or converting any college or university which is limited to offering degrees of a lower rank than baccalaureate to a college or university that offers baccalaureate degrees or merging any institution of postsecondary education into any other institution of postsecondary education, establishing a new management board, and transferring a college or university from one board to another.
(b) If the creation of a new institution, the merger of any institutions, the addition of another management board, or the transfer of an existing institution of higher education from one board to another is proposed, the Board of Regents shall report its written findings and recommendations to the Legislature within one year. Only after the report has been filed, or after one year from the receipt of a request for a report from the Legislature if no report is filed, may the Legislature take affirmative action on such a proposal and then only by law enacted by two-thirds of the elected members of each house.
(4) To formulate and make timely revision of a master plan for postsecondary education. As a minimum, the plan shall include a formula for equitable distribution of funds to the institutions of postsecondary education [which funds are controlled by the legislature—law. See prior and following paragraphs; each contemplate legislative action in light of recommendation. Traditional statutory construction requires the reading of the provisions together. Thus, authority to make a master plan is not other than a “plan” or recommendation, not independent authority to impose such plan. Also, remember the specific delegation requirement of paragraph E, above. This is not specific delegation of authority to impose a plan]
(5) To require that every postsecondary education board submit to it, at a time it specifies, an annual budget proposal for operational needs and for capital needs of each institution under the control of each board. The Board of Regents shall submit its budget recommendations for all institutions of postsecondary education in the state. It shall recommend priorities for capital construction and improvements.
Section 5(A), the introductory provision which addresses “Creation” and “Functions” (not “powers,” which are addressed in D and E, above) provides: “The Board of Regents . . . shall have budgetary responsibility for all post secondary education and shall have other powers . . . provided in this section or by law.”
Section 5(D)(5) above, which addresses budget matters specifically, clearly contemplates only recommendations with respect to budget matters. Article III, Section 16 of the Louisiana Constitution gives budgetary authority to the legislature, and requires the enactment of law. Only the Governor has the authority and duty to “submit to the legislature an operating budget and a capital budget . . .” See Article 4, Section 5(D).
A reminder with respect to any areas of possible doubt. Article 8, Section 5(E) (above) provides that any power not specifically vested by Section 5 in the Board of Regents are reserved to the respective management boards.
Oath of Office
I, ________________, do solemnly swear that I will support the Constitution and laws of the United States, the Constitution and laws of Louisiana, and the Bylaws and Regulations of this Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, according to the best of my ability and understanding, so help me God.
Excerpts from By Laws of the Board
Selected Bylaws of the Board of Supervisors are paraphrased in this Section to give Board members a perspective on the operations of the Board as to the process by which issues, information and persons are presented to the Board for their review and action. The Bylaws, Regulations and Permanent Memoranda of the LSU System are available in full on the LSU System website at “http://www.lsusystem.edu/”.
Article VI. Communications to the Board
All communications to the Board, or to any committee for official purposes, shall be made in writing to the President and transmitted by him to the Board.
All communications from a student organization, teacher, officer, or employee of any campus or System-wide unit shall be transmitted to the President through the Chancellor, and transmitted by the President to the Board or any of its committees.
The President, or the Chancellor, has the authority to read and comment upon the communication but shall not delay or withhold it.
Article XII, Section 8. Submission of Proposals for System Approval, Setting of Board and Integrated Committee Agenda, Matters Requiring Express Board Approval, and Related Matters
Article VII (8)(C); Board, Executive Committee, and Integrated Committee Agenda
The agenda for either committee or regular board meetings shall be set by the Chair after consultation with the Chair-Elect, and the President, with appropriate input from the chancellors.
No matter shall be placed on the agenda unless the procedures set forth in Article XII, Section 8, (E) (as set out in 3 below) for submission of proposals for System approval have been met.
Matters may be set on the agenda in exceptional circumstances, as determined by the Chair after consultation with the Chair-Elect and the President.
Upon request of five board members made in writing or at a regular Board meeting, an item shall be added to the next following regular Board meeting agenda.
The agenda for special committee meetings and special Board meetings shall be set by the Chair or the respective committee chairs.
Article VII, (8) (D); Significant Board Matters Requiring Approval by the Board
Certain matters cannot be undertaken without prior review by the President and appropriate System staff and formal approval by the Board.
Any matter having a significant fiscal (primary or secondary) or long-term educational or policy impact on the System or any of its campuses or divisions.
Matters related to contracts, leases, land transactions, mineral rights, rights-of-way, servitudes except leases of less than 5000 square feet.
A lease of less than 5000 square feet may be approved by the President provided it contains maximum legal protections to LSU.
Contracts for the design, construction, repair, or renovation of any building or other structure costing $500,000 or more.
The President may approve a contract less than $500,000. The President may also establish procedures and delegate to chancellors or equivalents the authority to approve contracts involving a total of less than $125,000.
Contracts for the design, acquisition, or implementation software systems and applications of $500,000 or more.
The President can approve any such contracts of less than $500,000. The President may also establish procedures and delegate to chancellors or equivalents the authority to approve contracts of less than $250,000.
Use agreements granting rights to any System or campus property or property rights involving a total of $100,000 or more, in one fiscal year or an aggregate of $150,000, or more, in two or more fiscal years.
Contracts for the construction of new fraternity and sorority houses or the leases and substantial amendments or modifications related to them.
Cooperative endeavor agreements, joint ventures, partnerships, and similar agreements, and agreements directly relating thereto.
Acceptance of donations of more than $125,000 to an entity of the LSU System.
Matters related to intellectual property;
Matters related to personnel;
Matters related to:
- New academic degree programs;
- Nonacademic affiliation agreements;
- Matters not expressly delegated by the Board to the President or a chancellor or equivalent and which reasonably require Board approval as generally defined above and as construed in light of the illustrative listings.
- Any matter the Board hereafter determines to require Board approval.
Article VII (8)(E); Submission of proposals for approval by the President or the Board
All matters submitted to the System by any campus for approval either by the Board or the President shall be submitted timely by the Chancellor or equivalent to the President. The President and System staff shall review all such submissions. If Board approval is required, the President and System staff shall prepare an executive report, including a recommendation to the Board, regarding the submission. The executive report will include:
- A summary of the matter.
- A description of the business plan.
- A description of the data and other factors used to make the relevant estimates or predictions, and an analysis of the consequences should the actual usage be substantially higher or lower than predicted or estimated.
- A description of the competitive process used to set the price or amount of any lease, purchase, or sale or, if no competitive process was followed, a description of the process followed to assure that the price or amount is advantageous to LSU.
- The legal documents proposed to be entered into by LSU.
- A list of all persons and legal entities with an interest in the proposal.
- A list of any related existing or contemplated transactions, whether such future transactions will be legally required or are merely expected or desired to occur as a result of the submitted proposal.
- A disclosure of any known relationships between any LSU employee and any private contractor or other party to the matter and the steps taken to avoid any conflicts of interest.
- Any other material the President, the Board, or the Executive Committee determines will assist in understanding the matter presented
Article XII (8) (F); Deadlines for submission of proposals
All significant board matters must be submitted to the System Office no less than 30 days prior to the scheduled meeting date unless a later date is authorized by the Chair, Chair Elect or President
Article IX, Amendment or Repeal of Bylaws
New bylaws may be adopted, or existing bylaws amended or repealed only after notice has been given at the previous meeting or at least 30 days prior to the proposed action, unless the entire membership of the board by a 2/3rds vote waives this requirement.
Article V, Committees
Issues that come before the Board are first heard by a subject matter committee. The Chairman directs the issues to the proper committee, which gathers facts and input from the Executive Staff.
The issues are discussed at a committee meeting, usually held prior to the Board meeting, which usually votes on a course of action regarding the issue.
The committee reports its action to the full Board, which either ratifies, rejects or amends the committee reports.
Open Meeting Requirements
Compliance with the Open Meeting law, La. R.S. 42:1 et seq. is required for all meetings of the Board or its committees. Generally, any time a majority of the entity is meeting, notices agenda, and public access are required.