The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5505 July 3, 1979 OPEN MEETINGS ACT: Meetings of promotion and tenure committees of a state university and meetings of a budget committee of a state university CONSTITUTION OF MICHIGAN: Art 8, Sec. 5 (governing boards of state universities) COLLEGES & UNIVERSITIES: Open Meetings Act The promotion and tenure committee and the budget committee of a state university are advisory boards and are therefore not subject to the provisions of the Open Meetings Act. Honorable Joseph Forbes State Representative The Capitol Lansing, Michigan 48909 You have requested my opinion on a matter which may be stated as follows: Are the meetings of the promotion and tenure committees and the budget committees of Wayne State University subject to the provisions of the Open Meetings Act, 1976 PA 267, MCLA 15.261 et seq; MSA 4.1800(11) et seq? The collective bargaining contract between Wayne State University and its faculty provides for the formation of tenure and promotion committees at the department, college or school, and university-wide levels. Agreement between Wayne State University and the Wayne State University Chapter of the American Association of University Professors, July 1, 1978 to July 31, 1980, Articles 22 and 23 (hereinafter referred to as the 'Agreement'). These committees evaluate and recommend candidates for promotion and tenure. The President of the University retains the ultimate right to make affirmative recommendations for tenure and promotion to the Board of Governors (Agreement, art 22D(3) and art C). However, tenure can only be granted by the Board of Governors (Agreement, art 22A); and promotions determined by the Board and the President in accordance with the authority delegated to the President by the Board (Agreement, art 23C). This Agreement authorizes the establishment of Budget Advisory Committees within each department or division of the University. These committees are to consult with their respective department heads concerning the general budgetary priorities of the department (Agreement, Article 31). The powers of the governing boards of the universities are set forth in the Michigan Constitution, Const 1963, art 8, Sec. 5, which states, in part: '. . . each board shall have general supervision of its institution and the control and direction of all expenditures from the institution's funds. . . .' The Open Meetings Act, supra, requires that meetings of a public body empowered to exercise governmental or proprietary authority or perform a governmental or proprietary function be open to the public, Secs. 2(a) and 3. I have previously determined in OAG, 1977-1978, No 5183, p ___ (March 8, 1977), that: '. . . the act does not apply to committees and subcommittees of public bodies which are merely advisory or only capable of making 'recommendations concerning the exercise of governmental authority.' These bodies are not legally capable of rendering a 'final decision." Therefore, if these university committees are merely advisory in nature, they need not follow the requirements of the Open Meetings Act, supra. (1) If the Board of Governors of Wayne State University were to delegate responsibility for budgetary and tenure matters to these committees, they would be exercising a governmental function and would have to follow the requirements of the Act. (2) However, the Michigan Constitution does not authorize the Board of Governors to delegate duties which they are required to fulfill. In OAG, 1930-1932, p 244 (June 19, 1930), the Attorney General, in construing a similar constitutional provision, stated: 'While the State Board of Agriculture [not the Board of Trustees of Michigan State University] is not authorized, under the constitution, to delegate the exercise of its discretion in the supervision of the college and the direction and control of agricultural college funds, the board may delegate discretion in the performance of the administrative details of its policies. Authority for this statement may be found in an analogy drawn to the power of the Legislature to delegate discretion in the administration of the laws.' In Sittler v The Board of Control of the Michigan College of Mining and Technology, 333 Mich 681; 53 NW2d 681 (1952), the Supreme Court held that appointment of a professor by the head of the department was not valid since the power to hire was vested in the Board of Control and could not be delegated. On the delegation issue the Court stated, at p 686: '. . . Powers of the character vested by the above statutory provisions in a board of control of an educational institution maintained by the State cannot be delegated to some subordinate or representative.' It is, therefore, my opinion that the promotion and tenure committees and the budget committees of Wayne State University are advisory boards and are not subject to the provisions of the Open Meetings Act. Frank J. Kelley Attorney General (1)
(2)
Thus, in Engel, et al v Donald H. Gordon, Wayne Circuit Court Civil Action No. 78-837132-CZ, Judge William Leo Cahalan, enjoined the faculty of Wayne State University Law School from considering a change in the admissions policy of the school at a meeting not held in compliance with the Open Meetings Act, supra. However, in so ruling, the court distinguished between the decisional powers delegated by the Board of Governors and President of the University to the faculty with regard to admissions of students, and the 'so-called recommendatory powers' of the faculty in matters of tenure, promotion and budget. With respect to the exercise of the recommendatory powers, the court implied that it would not be necessary to discuss them at an open meeting.