## V.Vm A-m-0-y GENERAL OF TEXAS

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**JOHN Ia.**  **IalLL A-R-**  **o-Ax.** August 31, 1977

Honorable J. C.Martin, Jr., President Opinion No. H-1045
Board of Directors Texas A & IUniversity Kingsville, Texas 78363
Dear Mr. Martin: Re: Selection of a chancellor and president at Texas A & IUniversity.

You request our opinion concerning the procedure bywhich certain appointments to administrative positions were made by the Board of Directors of the Texas A & IUniversity.

Texas A C IUniversity has campuses at Kingsville, Laredo, and Corpus Christi. The Legislature recently enacted House Bill 944which establishes and designates these institutions theUniversity System of South Texas, consistingof Texas A & IUniversity, the renamed Laredo State University, and Corpus Christi State University. The name of the Board of Directors of Texas A & IUniversity ischanged to the Board of Directors of the University System of South Texas, and itsgoverning authority over the component institutions iscontinued. The bill becomes effective September 1, 1977.
At itsmeeting 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 & IUniversity at Corpus Christi as president of Corpus Christi State University. Each of the persons appointed had served in an acting capacity in the position towhich he was appointed for more than ayear. You ask the following questions about these appointments:

1. May the Board promote fromwithin without advertising the vacancy and without conducting a search? \ 2. If the answer to the above is affirmative, may the Board make such adecision under the agenda item "Executive Session, Discussion of Personnel Changes," without announcing the pending action?

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The Board has broad authority tomanage and control Texas A & IUniversity. Ed. Code 98 95.21; 104.11; 104.41 - -43; 104.91 - .92. TexasA & IUniversity has operated since 1972 asa system with the position of chancellor as chief executive officer with the approval of the Coordinating Board andwith operating funds appropriated by the Legislature. General Appropriations Act, Acts 1975, 64th Leg., ch. 743 at 2763. The Board's authority tooperate as a system with an executive officer of the system ismade express by House Bill 944. A prospective appointment to aposition made by abody empowered to fill that position isvalid. See - Attorney General Opinion V-927 (1949).
The governing body of a State University has considerable discretion in exercising itspowers, 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 aviolation 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, 502F.2d 1229 (2dCir. 1974); GGn v. Board of Regents of Texas Tech University, 474F.2d 594 (5thCir. 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 inparticular recruitment practices. However, we note that recruitment practices have been challenged as discriminatory under the 1964 Civil Rights Act. 42U.S.C.A. 9 2000e - 2(a)(l), (21, which orohibits discrimination inemployment on the basis **Of** race, color, religion, sex, or national-origin. See United States v. Inspiration Consolidated Copper Co., [lml 6mpl. Prac. Dec. (CCH) (18918;Strain v. Philpott, 1197114Empl. se also V.T.C.S. art. 6252-16. XKoritv to select and appoint Prac. Dec. (CCH) 117521. 5 Thus. the Board has the ai administrative officers by any procedure itdetermines, as long as its action isnot unreasonable, arbitrary, capricious, or discriminatory.

Your second question iswhether 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 itsJuly 7, 1977,meeting included acopy'of the agenda for themeeting, 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:

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 inan open session forwhich the requisite notice has been given and publicly announces that a closed session will be held under a specified section which authorises the holding of the closed session. V.T.C.S. art. 6252-17, 5 2(a), (9). SeeAttorney General Opinion H-496 (1975). Written noticeof the "date, hour, place, and subject of eachmeeting held by a governmental body" must be given as prescribed by section 3Aof the Open Meetings Act. The notice must be "sufficiently specific to apprise the public ingeneral terms of each subject tobe discussed." Attorney General Opinion B-662 (1975)at 3. The notice should setout any special matters tobe considered or any matter inwhich the public has aparticular interest. Attorney General Opinion M-494 (1969).

"Inview of the official creation of our System and inorder tobe 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 thatbudget."

The adeauacv of notice concerning the subjectmatter at ameeting-was-at issue inLower Colorado River Authority v. City of SanMarco?.,523 S.W.2d 641 (Tex.1975). LCRA attempted to increase electric rates in the city of San Marco6 at ameeting held October 19, 1972. The notice of thatmeeting made no reference torates. At another meetingonMay 24, 1973, notice of themeeting included a statement that the Board would consider othermatters concerning theAuthority'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 soldwithin the boundaries of the City of SanMarcos, Texas.
The Texas Supreme Court considered this notice and held:

The notice of the 1973meeting is not as clear as itmight be, but itwould alert a reader to the fact that some action would be considered with respect to charges for electric power sold in SanMarcos. Inour opinion the notice was sufficient to comply with the statute.
Id.at 646. See also Texas Turnpike Authority v. City of Fort

-- Worth, 20Tex. Sup. Ct.~J. 492 ( JULY 27, 1977). InOpen 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 thatAct. Open Records Decision Nos. 93, 82, 81, 68 (1975); 60 (1974).
The primary interest protected by section 2(g) permitting personnel matters tobe 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 thepublic's right to be notified with reasonable specificity of the subject matter tobe considered at a meeting of agovernmental body, particularly when the subject isone inwhich 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 isnot entitled toobserve 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 consider filling such positions at itsmeeting. In addition, any vote or other final action on amatter discussed in closed session must be taken inan open meeting properly noticed in

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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 inprivate.

In ourview, an item stating only that theBoard **would** meet inexecutive session on "Discussion of personnel changes" did not provide adequate public notice that the Board would consider acting to fill thepositions of chancellor and university president at thatmeeting. The term "personnel" is sogeneral that it could apply to a large number of subjects thatmight come before the Board. Consequently, we do not believe the notice given complied with theAct's subject matter notice requirement in this instance.

It ispossible that the appointments will not be judicially challenged, but if it is properly challenged action taken at ameeting not held in compliance with the Open Meetings Law isvoidable by the courts. Lower Colorado River Authority v. City of SanMarcos, supra; Attorney General Opinions H-662, H-594 (1975). If the Board decides to consider ratifying the appointments at a futuremeeting, it must post adequate notice of such proposal. SeeAttorney - General Opinion H-419 (1974).
SUMMARY
The Board of Directors of the Texas A & IUniversity system has authority to select and appoint administrative officers by any procedure it chooses, as long as itsaction is not unreasonable, arbitrary, capricious, or discriminatory.
Notice of an executive **SeSSiOn** on "Discussion of personnel changes" isnot sufficiently specific as to subject matter to comply with the Open Meetings Act notice requirement in regard to the appointment of a university system chancellor and a university president, since the positions are ones inwhich the public can reasonably be expected to have a special interest.-



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Very trulyyours,

AttorneyGeneralof 

### Texas
APPROVED:

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