I appreciate your patience as we have worked through this issue. I am happy to try to clear up the confusion around the applicability of the Oregon Public Meetings Law (OPML) to meetings of the Intercollegiate Athletics Committee (IAC). The IAC is a committee acting under the authority of the “statutory faculty.” Although not used in Oregon law, “statutory faculty” is a term that is used in the UO Constitution and intended to provide definition to the phrase “president and professors” used in ORS 352.010.
Margie Paris has explained to me that it is your preference and hers that IAC meetings be closed. However, Margie indicated that some members of the IAC desire that meetings be open. I have previously advised you and your predecessor as chair, Brian McWhorter, that nothing precludes the IAC from following the requirements of the OPML. Compliance with the OPML involves a fairly detailed list of obligations (in addition to making certain kinds of meetings open to the public), and you are free to meet these obligations. My advice is simply that the IAC is not legally required to comply with the OPML. Short of full compliance with the OPML, the IAC may choose to open some or all of its meeting time to the public or portions thereof, but Margie explained to me that her concern is that open meetings may narrow the scope of the discussion and the practical ability of the IAC to consider certain matters.
The narrow question at issue, then, is whether the IAC is required to comply with the OPML. This question is answered by determining whether the IAC has the authority to make decisions for or recommendations to a public “body.” In my view, the answer to that question is “no.” This email does not provide, and should not be construed as providing, advice about any other issue. Specifically, I stress that this discussion is narrowly addressed to the applicability of the OPML to the IAC. It should not be understood to address the scope of the faculty’s authority or the relationship of that authority to the authority of the State Board of Higher Education (SBHE), the Chancellor, or an institutional president.
The OPML applies to all meetings of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter. ORS 192.610(5); 192.630(1). The term “[g]overning body means the members of any public body which consists of two or more members, with the authority to make decisions for or recommendations to a public body on policy or administration.” ORS 192.610(3) (underlining added). The term “[p]ublic body means the state, any regional council, county, city or district, or any municipal or public corporation, or any board, department, commission, council, bureau, committee or subcommittee or advisory group or any other agency thereof.” ORS 192.610. While not binding, the Oregon Department of Justice has opined that an individual official is not a public body. 42 Op Atty Gen 187, 189 (1981); 44 Op Atty Gen 69 (1984). I find the Department’s views to be persuasive on this issue because the use of the term “body” in this context would clearly mean a number of individuals regarded as a single entity (e.g., the “student body”).
Whether the IAC has the authority to make decisions for or recommendations to a public body must be determined by reference to the legislatively-established roles of the SBHE, Chancellor, presidents of the seven public universities, and the professors at each of the seven public universities. The Oregon University System (OUS) was established as a public university system by ORS 351.011. OUS consists of the Chancellor’s Office, the public universities listed in ORS 352.002 and any related offices, departments or activities. The University of Oregon is one of the public universities listed in ORS 352.002 as a public university under the jurisdiction of the SBHE.
Under ORS 352.011, the SBHE, on behalf of the Oregon University System, “shall exercise and carry out all of the powers, rights and duties that are expressly conferred upon the board or that are implied by law or incident to such powers, rights and duties.” Another statute, ORS 351.070, lists some of the SBHE’s authorities. More specifically, ORS 351.070(4)(a) and (b) provide as follows:
(4) Subject to such delegation as the board may decide to make to the public universities and offices, departments and activities under its control, the board, for each public university, office, department or activity under its control:
(a) Shall supervise the general course of instruction therein, and the research, extension, educational and other activities thereof.
(b) Shall adopt rules and bylaws for the government thereof, including the faculty, teachers, students and employees therein. (underlining added).
ORS 351.085 describes the duties and powers of the Chancellor. Subsections (1) and (2) provide as follows:
The Chancellor of the Oregon University System shall exercise, under the direction of the State Board of Higher Education, the administrative and management authority necessary to carry out the policies and directives of the board with respect to the public universities and offices, departments and activities under the control of the board. In carrying out the duties of the chancellor, the chancellor shall:
(1) Serve as chief executive officer of the Oregon University System and administrative officer of the State Board of Higher Education.
(2) Supervise the presidents of the public universities listed in ORS 352.002 and recommend the terms and conditions of their employment to the board, including but not limited to appointment, compensation and termination.
ORS 352.004 describes the role and authority of the president of each of the public universities within the Oregon University System:
The president of each public university within the Oregon University System is also president of the faculty. The president is also the executive and governing officer of the public university, except as otherwise provided by statute or action of the State Board of Higher Education. Subject to the supervision of the board, the president of the public university has authority to control and give general directions to the practical affairs of the public university. (underlining added).
Similarly, ORS 352.010 describes the composition of the faculty and its role:
The president and professors constitute the faculty of each of the public universities listed in ORS 352.002 and as such have the immediate government and discipline of the public university and the students therein, except as otherwise provided by statute or action of the State Board of Higher Education. The faculty may, subject to the supervision of the board under ORS 351.070, prescribe the course of study to be pursued in the public university and the textbooks to be used. (underlining added).
These statutes establish the Legislature’s intended framework for the respective roles of the SBHE, the Chancellor, each institutional president as the executive and governing officer and the president of the faculty of his or her institution, and the “president and professors” as the “faculty” of each institution governed by the SBHE.
Much of intercollegiate athletics would seem to be a “practical affair” of the University, see ORS 352.004, and thus the president’s responsibility, subject to supervision by the SBHE and the Chancellor.
Further, the SBHE has adopted numerous rules and bylaws for the government of each of the public universities, including their faculty, teachers, students, and employees. The SBHE’s policy on Executive Leadership can be found here:
http://www.ous.edu./sites/default/files/state_board/polipro/BdPol130510.pdf. Parts (F)(1), (6) and (7) are the relevant parts.
The SBHE has also enacted OUS Internal Management Directive Section 8. While somewhat dated, this IMD is still in effect and sets forth the role of the institutional presidents in relation to intercollegiate athletics in a variety of ways. Another IMD is Section 1.130, which designates the president as responsible for the development and administration of institutional policies and rules governing the role of students (which would seem to include intercollegiate athletics) and to “take into account” the views of students, faculty, and others. The Internal Management Directives are found here: http://www.ous.edu/sites/default/files/about/polipro/files/IMD4-10.pdf
To the extent that the SBHE has acted so as to delegate authority regarding intercollegiate athletics to the institutional presidents (and the directors of athletics), the IAC’s role is to advise the presidents and the directors. Presidents and directors are individual officials and not public bodies. Thus, the IAC is not subject to the OPML because it does not have authority to make decisions for or recommendations to a public body.
Further, to the extent that the faculty have a role relative to intercollegiate athletics, the SBHE’s actions and the UO Constitution both appear to provide that the president, an individual official, is the ultimate decision-maker via a presidential veto that may not be overridden by the professors.
I want to reiterate that the narrow question at issue is whether the IAC is required to comply with the OPML. This question is answered by determining whether the IAC has the authority to make decisions for or recommendations to a “public body.” In my view, the answer to that question is “no.” The answer turns on the word “body” in the OPML. This email does not provide, and should not be construed as providing, advice about any other issue. Specifically, I stress that this discussion is narrowly addressed to the applicability of the OPML to the IAC. It should not be understood to address the scope of the faculty’s authority or the relationship of that authority to the authority of the State Board of Higher Education (SBHE), the Chancellor, or an institutional president.
I hope that this is helpful.
University of Oregon