The Board of Trustees is the governing body of a college or university and has responsibility for establishing general policy and developing overall objectives for the institution says, William D King. The board delegates to its committees and their chairmen, as appropriate, such matters as it may designate by formal action. Under Section 414 of the Education Law, only the elected members (Trustees) are empowered to take final action on any legislative matters brought before them or any other business related to the educational policies and administration of an institution. It should be mentioned that no one can transact business at a meeting unless he/she is duly notified in accordance with guidelines set forth in New York’s Open Meetings Law.
Here is General Counsel’s Role in Board Meetings:
- According to both the New York State Commissioner of Education and counsel for the Association of Governing Boards, unless it is empowered by its board in advance, a general counsel’s legal role with regard to board meetings is limited. Under NYSED guidelines, he or she must be present at the meeting but may only advise on procedural matters that arise during the course of discussion (e.g., ensuring that motions are phrased properly, whether business can legally be considered at the meeting under open meetings law guidelines). The General Counsel cannot vote, nor does he/she have any authority to make decisions for the Board.
- For example: A trustee asks about the legality of providing health benefits to all domestic partners of employees who work more than 20 hours a week says William D King. The General Counsel could explain what the Board’s options are under New York state law. To determine whether such a policy would be legal. He/she could not make a recommendation as to what the board should do, however.
- A general counsel is legally permitted to elaborate on matters that come before the board during discussion. But may not offer an opinion or vote unless specifically granted authority in advance by its trustees. If this seems overly restrictive, it must be pointed out that a college. Or university’s chief legal officer does not have any formal role in committee meetings or other gatherings. At which decisions are made or recommendations offered for consideration by those bodies’ members. In essence, the only place where he/she can lawfully play a substantive role is at a board meeting. And only when the trustees themselves ask for legal advice.
- It should be noted that while members of standing committees may rely on their general counsels. During discussion within their own groups. They do not have discretion to make recommendations at committee meetings; such recommendations would be improper for any reason. The only member of the university administration who is authorized to make such recommendations. Or speak on behalf of the institution is its president (or in his/her absence, another administrator who has been specifically designated by the president). This applies regardless of how often individual committee members may consult with their general counsels. Before and during discussions and voting sessions (though this practice is discouraged. Because it can lead to conflicting opinions and lack of uniformity in decision-making. As well as a perception that the committee is being “led” by its general counsel).
- In short, unless specifically empowered in advance by a board’s formal action to do so. A college or university’s chief legal officer may not take any substantive role in committees’ deliberations. He/she must remain an observer and listener at all times explains William D King. The General Counsel can only respond in detail to proposals if asked by the full Board to offer his/her assessment of their legality. Implications for risk management or other concerns, or anticipated effects on the institution. In this regard, it should be pointed out. That committees are bound by the same guidelines regarding conflicts of interest and disclosure that apply to trustees. This means that individual members cannot advocate for specific courses of action. Unless in a fiduciary role (i.e., as a member of a committee, in a particular case). And must avoid decisions that might pose a conflict for the Board as a whole.
In closing, it should be noted that there is no equivalent to this discussion for presidents. Because their role in meetings varies greatly from campus to campus depending on its overall governance structure. Regardless of whether trustees are involved or not says William D King. In many instances when committees meet at which the president appears only if asked by the group itself to do so. He/she may state his/her opinion freely and does not need to ask for specific authority beforehand. This is true even when she/he has previously been asked for input other administrators. And verbally offered his/her opinion, which was then adopted by the committee.