Does Arkansas Amendment 33 protect a college board if the school began as a local or private institution?

Plain-English summary

In 2013, Arkansas Attorney General Dustin McDaniel answered senators' questions about which college governing boards had protection under Amendment 33 of the Arkansas Constitution. The amendment covered boards that managed qualifying state institutions of higher learning, including boards created after the amendment took effect in 1943. Its restriction concerned the transfer of powers already vested in such a board: those powers could not be transferred unless the institution was abolished or consolidated with another state institution.

A local or private school's board could not acquire vested powers under Amendment 33. A later state college therefore could not inherit Amendment 33 protection merely from powers its nonstate predecessor had exercised. McDaniel said the relevant question for a transfer challenge was whether the present state board had a vested power at the time of the proposed transfer. He described a vested power, based on earlier AG opinions without direct judicial confirmation, as one a qualifying state board had traditionally exercised over substantive institutional policy. He declined to decide the historical and current facts needed to identify any particular board's vested powers.

The opinion treated the University of Arkansas at Little Rock and the University of Arkansas at Fort Smith as state institutions subject to Amendment 33. It did not determine which powers their boards had vested. For ASU-Beebe, Westark and Little Rock University, McDaniel likewise left the disputed historical facts unresolved. A state board's powers could vest after 1943; the amendment did not freeze protected powers on its effective date.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did a college have to be a state school in 1943 for its board to receive Amendment 33 protection?
A: No. The opinion quoted the amendment's coverage of qualifying boards “now in existence or hereafter created.” A current state institution's governing board could be covered even if the school was not a state institution in 1943.

Q: Did powers held by a former local or private college board become protected when the school joined a state university system?
A: The AG said a nonstate board could not hold vested powers under Amendment 33 to pass on. A successor state board could have its own protected powers, but identifying them required facts about the board and the power at issue.

Q: Did consolidation automatically transfer every protected power to the new university system board?
A: No automatic transfer was stated. The opinion said abolition or consolidation could permit a transfer of vested powers from a qualifying state board, but the amendment did not require one or dictate how multiple surviving boards would divide authority.

Q: Did the AG decide whether ASU-Beebe's board had vested powers in 1943?
A: No. McDaniel said he could not determine whether it was a qualifying state institution then or what powers its board had exercised. He also said a power's status at a later transfer would matter more than a 1943 snapshot.

Q: Were the University of Arkansas at Little Rock and the University of Arkansas at Fort Smith covered?
A: Yes, the AG treated both as state institutions subject to Amendment 33. He declined to identify their boards' particular vested powers because that required a factual inquiry.

Background and constitutional framework

Senators Jeffress and Madison asked eight questions about two-year colleges, predecessor schools, and mergers into state university systems. The opinion distinguished an institution's coverage from the separate question of whether a particular board power had vested. It identified four factual questions for a transfer dispute: whether a power was transferred, whether the board governed a covered state institution, whether the power was vested at the time, and whether the transfer accompanied abolition or consolidation with another state institution.

McDaniel described Amendment 33 as a restriction on transfers of vested powers, not a rule assigning every power after a merger. He attached Opinion 2000-007 for its discussion of the amendment's history. His 2013 answers expressly left institution-specific findings to a fact finder, and he said the suggested definition of vested power lacked direct judicial confirmation.

Citations and references

• Amendment 33 of the Arkansas Constitution: covered state boards and limits on transferring their vested powers, as quoted and discussed in the opinion.
• Arkansas Attorney General Opinion 2000-007: historical discussion attached to the 2013 opinion.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

Tue ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2013-001

March 6, 2013

The Honorable Jimmy Jeffress, State Senator
The Honorable Sue Madison, State Senator
State Capitol Room 320

Little Rock, Arkansas 72201

Dear Senators Jeffress and Madison:

I am writing in response to your request for my opinion on the following questions:

1. Do the provisions of Ark. Const. Amend. 33 concern “state,”
   rather than local or private, boards?

2. Did predecessors of two-year institutions have boards with
   powers that might vest?

3. Do the two-year institutions’ boards have Amendment 33
   protection if they were not governed by state boards in existence in 1943?

4. Had substantive powers vested in the ASU-Beebe board by
   January 15, 1943?

5. If a two-year institution joins a university system such as the
   University of Arkansas System or the Arkansas State University System, does their protection under Amendment 33 depend on powers having vested in their original board or does their protection under Amendment 33 depend on powers having vested in their system’s board?

323 CENTER STREET, SUITE 200 * LITTLE Rock, ARKANSAS 72201 TELEPHONE (501) 682-2007 * Fax (501) 682-8084 INTERNET WEBSITE * http://www.ag.state.ar.us/

The Honorable Jimmy Jeffress, State Senator
The Honorable Sue Madison, State Senator
Opinion No. 2013-001

Page 2

6. If the predecessor to Westark was governed by a board, had
   substantive powers vested in that board by 1943 that would extend to Westark?

7. If the predecessor to Little Rock University (LRU) was governed
   by a board, had substantive powers vested in that board by 1943 that would extend to LRU?

8. Do the University of Arkansas at Little Rock and the University
   of Arkansas at Fort Smith have Amendment 33 protection?

By way of background information, you report that your research reveals the following:

ASU-Beebe was first organized as the Junior Agriculture School of Central Arkansas in 1927. The school was run by the Beebe Public School System and became a junior college in 1931.

Two institutions currently with the University of Arkansas System were originally organized as junior colleges.

The University of Arkansas at Fort Smith began as a junior college in 1928 and was part of the public school system. In 1950, it separated from the public school system and became a private institution. In 1965, the Sebastian County Community Junior College District was created, eventually becoming Westark Community College. We are unable to determine if the Junior College was governed by a board. Westark merged with the UA System in 2002.

The University of Arkansas at Little Rock began in 1927 as the Little Rock Junior College under the City Board of Education, In 1957, it became Little Rock University (LRU), independent of the Board of Education. We are unable to determine if LRU was governed by a board. LRU merged with the University of Arkansas System in 1969.

The Honorable Jimmy Jeffress, State Senator
The Honorable Sue Madison, State Senator
Opinion No. 2013-001

Page 3

RESPONSE

In my opinion, the answer to your first question is “yes.” With respect to your second question, in my opinion, only a qualifying state institution can have powers capable of “vesting” in the sense of that term contemplated in Amendment 33. Not being a finder of fact, I cannot opine which “predecessors of two-year institutions” met this criterion. With respect to your third question, regardless of whether the two-year institution was governed by a state board in 1943, if it is currently a state institution, its board has “Amendment 33 protection” in the sense that the board’s vested powers may not be transferred in the absence of the institution’s abolition or its consolidation with another state institution. I cannot answer your fourth question because doing so would entail conducting a factual inquiry of the sort I am neither authorized nor equipped to undertake.

With respect to your fifth question, in my opinion, if an Amendment 33 state institution is consolidated with another state institution, its board’s powers may be transferred to the governing board(s) of the post-consolidation institution. If such a transfer occurs, those powers will presumably be allocated and exercised by the recipient board(s)' in whatever manner accords with the conditions of the transfer. Whatever vested powers have been transferred incident to a consolidation would in turn not be transferrable from the governing board(s) of the post-consolidation institution unless the conditions of Amendment 33 were met. It is not the case, then, despite your suggestion to the contrary, that the consolidated two-year institution would necessarily be subject only to one or the other of its own or the system’s “protection under Amendment 33.” The Amendment does not address the allocation of vested powers among what may be multiple governing boards of an Amendment 33 institution. The sole point of Amendment 33 is to forbid the transfer of vested powers from a qualifying state institution absent either that institution’s abolition or its consolidation with another state institution. The Amendment is thus proscriptive rather than prescriptive; it is intended only to foreclose the transfer of vested power from an existing, qualifying state institution. And, again, Amendment 33 does not bear on any transfer of power from the board of a non-state institution.

' The parenthetical “(s)” is meant to acknowledge that the successor institution — particularly if it comprises separate campuses — may be governed by more than one board.

The Honorable Jimmy Jeffress, State Senator
The Honorable Sue Madison, State Senator
Opinion No. 2013-001

Page 4

With respect to your sixth and seventh questions, nothing in Amendment 33 requires, as these questions suggest, that powers be vested in a qualifying board as of the Amendment’s effective date of 1943 in order to be subject to the Amendment’s terms. A qualifying board’s powers may vest at any time. Although only a finder of fact could determine what powers were vested in a board for purposes of applying Amendment 33, I gather from your factual summary that neither Westark, Little Rock University nor either of its predecessors was a state institution, meaning that neither institution’s board could even have developed its own “vested powers” under Amendment 33, much less have inherited such powers from a predecessor non-state institution’s board.

With respect to your eighth question, both institutions you mention are state entities subject to the provisions of Amendment 33. Amendment 33 “protect[s]” these institutions to the extent that the powers “vested” in either of their governing boards may not be transferred unless the institution in question is either abolished or consolidated with another state institution.

DISCUSSION

By way of preface to my responses to your specific questions, I will briefly discuss the scope of Amendment 33. The Amendment affords the following protection to covered institutions:

The board or commission of any institution, governed by this amendment, shall not be abolished nor shall the powers vested in any such board or commission be transferred, unless the institution is abolished or consolidated with some other State institution?

The highlighted portion of this excerpt is strikingly silent on one issue that bears directly on various of your questions: it defines neither what powers might “vest” in a covered state board — and hence be subject to transfer only in conjunction with an abolishment or consolidation of the referenced sort — nor how such powers might come to be “vested.”

? Ark. Const. amend. 33, § 2 (emphasis added).

The Honorable Jimmy Jeffress, State Senator
The Honorable Sue Madison, State Senator
Opinion No. 2013-001

Page 5

This office has on various occasions addressed what might constitute a “vested” power potentially subject to the restriction set forth in Amendment 33.° Although I will not here repeat these previous analyses, the upshot of these opinions, whose conclusions are admittedly tentative in that they lack direct judicial confirmation, is that a “vested power” is one that a qualifying state board has traditionally exercised in matters of substantive institutional policy. As these opinions have further pointed out, the intent underlying Amendment 33, which was adopted in the wake of various political manipulations of governing state boards, was to preclude unwarranted outside interference with the established, substantive operations of covered state institutions.

As noted above, the portion of Amendment 33 previously quoted is both limited in its range of coverage to certain state boards and purely prohibitive in its effect: it bars the transfer by any entity — most notably the legislature — of any power “vested” in any covered state board unless the institution it serves is either abolished or consolidated with another state institution. The Amendment is concerned with “vested” powers only to the extent that they currently exist in a state, as distinct from a private or local governmental, institution. It follows that a power cannot “vest” in the board of a non-state institution for Amendment 33 purposes. Amendment 33 simply does not apply to such institutions or to the powers their boards may historically have exercised.

In accordance with these conclusions, it is both immatcrial and meaningless in terms of an Amendment 33 analysis to consider whether powers may have “vested” in, and subsequently been transferred from, a non-state institution. The only relevant issues in entertaining an Amendment 33 challenge to a transfer of powers from a state governing board are (1) whether a power residing in the institution’s board has been “transferred”; (2) whether the board governed a covered state institution; (3) whether the board’s power was “vested” at the time of the transfer; and (4) whether the transfer occurred in conjunction with the institution’s abolition or consolidation with another state institution. Addressing each of these issues will in each instance entail conducting a factual inquiry of the sort this office is neither authorized nor equipped to undertake in the course of issuing a formal opinion. The ensuing responses will consequently set forth only the legal principles to be applied by a finder of fact in any given case.

• See, e.g., Ops. Att’y Gen. 2007-007; 2002-119 and 2000-007. I am attaching for your convenience a copy
  of Opinion 2000-007, which discusses in detail the historical background of legislative interference with the University of Arkansas’s board that prompted adoption of Amendment 33.

The Honorable Jimmy Jeffress, State Senator
The Honorable Sue Madison, State Senator
Opinion No. 2013-001

Page 6

I will further note that neither Amendment 33 itself, case law interpreting the Amendment nor any Attorney General’s opinion has yet addressed whether a vested power capable of transfer under Amendment 33 must be transferred if a qualifying institution is consolidated with another state institution. On its face, the Amendment does not require that a transfer of powers occur simply because such a transfer would be permitted. Presumably, then, the legislature might simply elect to refrain from assigning powers at issue to any board — i.e., to dispense with them altogether.

Finally, even if a vested power is properly transferred pursuant to Amendment 33, a failure by the successor governing board(s) to exercise the power might conceivably result in its no longer being vested. Although neither the courts nor this office have addressed this issue, I assume a substantive power vested through exercise over time might conversely be capable of divestment through disuse, quite possibly opening up a formerly protected area of policymaking authority to executive or legislative incursion. In short, if faced with the question, a court might plausibly interpret Amendment 33 as designed to protect powers accrued and vested through historical and ongoing exercise thereof.

Question 1: Do the provisions of Ark. Const. Amend, 33 concern “state,” rather than local or private, boards?

In my opinion, the answer to this question is “yes.” On its face, Amendment 33 deals only with “boards or commissions charged with the management or control of all charitable, penal or correctional institutions and institutions of higher learning of the State of Arkansas... ."

Question 2: Did predecessors of two-year institutions have boards with powers that might vest?

In my opinion, the answer to this question is “no” if the predecessor institution was a non-state institution and “yes” if it was a qualifying state institution.

As noted above, Amendment 33 is concerned only with the transfer of “powers vested” in certain state boards. Of necessity, the only vested powers that factor into an Amendment 33 analysis are those that reside in a state institution. Determining what those vested powers might be will not involve considering what

• Ark, Const, amend. 33, § 1 (emphasis added).

The Honorable Jimmy Jeffress, State Senator
The Honorable Sue Madison, State Senator
Opinion No. 2013-001

Page 7

powers a non-state predecessor institution may have exercised and how those powers may have been characterized. In my opinion, the board of a state institution cannot inherit “vested” powers, in an Amendment 33 sense of that term, from the board of a non-state predecessor institution. By contrast, I believe the board of a state institution might inherit vested powers from the board of an abolished or consolidated state institution of. the sort enumerated in the Amendment.

Question 3: Do the two-year institutions’ boards have Amendment 33 protection if they were not governed by state boards in existence in 1943?

I assume that your reference to “the two-year institutions” is to current state institutions of higher education. Subject to this assumption, in my opinion, the answer to your question is “yes,” so long as the boards qualify for such “protection” in the sense of being “charged with the management or control” of the institutions.°

Your question appears to be whether Amendment 33 applies to a current state institution that was not a state institution on the Amendment’s 1943 effective date.© In my opinion, a current state board’s coverage under Amendment 33 does not turn on its having existed as a state entity on the Amendment’s effective date.’ Amendment 33 expressly declares that it will apply to boards described therein “now in existence or hereafter created.”®

Although your question is not entirely clear, you may further be asking whether the boards of private institutions might themselves have “vested” powers subject to the transfer protections set forth in Amendment 33. As I noted in my response to your first question, Amendment 33 applies only when one state institution is “abolished or consolidated with some other state institution.”? The highlighted

> The quoted language, which is included in Ark. Const. amend. 33, § 1, defines the scope of boards subject
to the Amendment’s provisions. Determining whether a given board qualifies as a governing board would involve making a factual determination in each instance.

® Amendment 33 took effect on January 15, 1943. Ark. Const. amend. 33, § 6.

7 Accord Opinion 2007-007.

® Amendment 33, § 1.

• Amendment 33, § 2 (emphasis added).

The Honorable Jimmy Jeffress, State Senator
The Honorable Sue Madison, State Senator
Opinion No. 2013-001

Page 8

term just quoted confirms that the Amendment’s application turns on the abolished or consolidated institution’s itself having been a state institution. The Amendment is intended primarily to prevent executive and legislative encroachment upon a state board’s authority by transferring its core powers to another entity. Any such transfer, the Amendment declares, may occur only in the limited contexts of a qualifying state institution’s abolition or consolidation with another state institution. This proscription has no bearing on any powers held or exercised by the board of a private entity.

Question 4: Had substantive powers vested in the ASU-Beebe board by January 15, 1943?

Answering this question would entail conducting a factual inquiry of the sort I am neither authorized nor equipped to undertake in connection with a formal opinion request. I am unaware, for instance, whether in 1943 ASU-Beebe was even a state institution whose board’s substantive powers would be capable of “vesting” in the manner contemplated in Amendment 33. Moreover, even if it were and its board’s powers had “vested,” these conditions alone would appear to establish little of current significance, since a state board’s substantive powers may vest at any time and must be assessed as of the date an Amendment 33 issue arises.

Question 5: If a two-year institution joins a university system such as the University of Arkansas System or the Arkansas State University System, does their protection under Amendment 33 depend on powers having vested in their original board or does their protection under Amendment 33 depend on powers having vested in their system's board?

I will paraphrase as follows what I take to be your question: If an institution is merged with or consolidated into a state university system will the institution’s Amendment 33 “protection,” if any, consist in (1) the “vested” powers its board possessed on the date of the consolidation or merger or (2) the University System Board’s vested powers?

As reflected in the foregoing discussion, for Amendment 33 purposes, if the pre- joinder two-year institution was not a state entity, what you term “their [sic] protection under Amendment 33” could not possibly “depend on powers having vested in their [sic] original board.” As noted above, Amendment 33 merely recites the limited conditions warranting the transfer of vested powers from one of

The Honorable Jimmy Jeffress, State Senator
The Honorable Sue Madison, State Senator
Opinion No. 2013-001

Page 9

the recited state boards to another state board. Amendment 33 does not apply if the proposed transferring board does not serve a qualifying state institution.

By contrast, if a state institution covered by Amendment 33 is abolished or consolidated with another state institution, the successor institution’s governing board(s) may apparently inherit whatever powers had vested in the board of the abolished or consolidated institution. Amendment 33 does not prescribe any particular allocation of governing authority between or among pre-consolidation boards that may survive the reorganization. Rather, it merely prohibits transferring vested power from one board to another in the absence of a qualifying institution’s abolition or consolidation. In the absence of some contrary directive regarding the transferred powers, whatever board(s) might remain in the wake of the consolidation would presumably be empowered to exercise whatever transferred vested powers the original boards brought to their union. Should more than one board remain when the dust of reorganization has settled, the boards might presumably be empowered to apportion vested powers between or among themselves.

In the case of your hypothetical, then, I do not believe it is meaningful to ask whether a consolidated two-year institution’s “protection under Amendment 33” would “depend on powers . . . vested” in either one or the other of two boards — namely, its own or the system’s. Whatever rights are considered “vested” in the board(s) of the successor institution pursuant to the principles discussed above will be subject to “protection under Amendment 33,” meaning that they cannot be transferred in the future unless one or more of the contingencies set forth in the Amendment occur. These rights may, but will not necessarily, include the rights formerly vested in the governing board(s) of the predecessor institution. Having ventured these opinions, I must add that judicial confirmation of this reading of the Amendment would be highly welcome.

Question 6: If the predecessor to Westark was governed by a board, had substantive powers vested in that board by 1943 that would extend to Westark?

For reasons discussed in my previous responses, this question is mistaken in apparently assuming that the extension to Westark of powers vested in a previous board would depend on whether those powers had vested before the 1943 effective date of Amendment 33. As discussed above, powers can vest in a qualifying state board at any time.

The Honorable Jimmy Jeffress, State Senator
The Honorable Sue Madison, State Senator
Opinion No. 2013-001

Page 10

Perhaps more fundamentally, based upon your recitation of background facts, it appears questionable that either Westark or its predecessor was a state institution of the sort subject to Amendment 33 analysis. The notion of “substantive powers vested” in a board has significance with respect to Amendment 33 only if the predecessor institution was a qualifying state institution. Based upon your factual summary, neither the predecessor institution nor Westark itself was a state institution.

Question 7: If the predecessor to Little Rock University (LRU) was governed by a board, had substantive powers vested in that board by 1943 that would extend to LRU?

All of the remarks made and conclusions drawn in my response to your previous question regarding Westark apply equally with respect to Little Rock University in this question.

Question 8: Do the University of Arkansas at Little Rock and the University of Arkansas at Fort Smith have Amendment 33 protection?

If you are simply asking whether these state institutions are subject to the provisions of Amendment 33, the answer is “yes.” If you are further asking whether the governing boards of these institutions have vested powers that may not be transferred pursuant to the prohibition set forth in Amendment 33, I must respectfully decline to answer. Determining what powers have “vested” in an Amendment 33 board under the definition discussed above will necessarily entail conducting a factual inquiry of the sort this office is neither authorized nor equipped to undertake.

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.

Sincerely,

4

wen boulier

Attorney General
DM/JHD:cyh

Enclosure

ATTORNEY GENERAL OF ARKANSAS
Mark Pryor

Opinion No. 2000-007

February 9, 2000

The Honorable Bill Gwatney
State Senator

P.O. Box 156

Jacksonville, AR 72076-0156

Dear Senator Gwatney:

I am writing in response to your request for my opinion on whether there are any constitutional restrictions that would preclude the Arkansas General Assembly from requiring that the University of Arkansas play a certain number of football

games in Little Rock.

RESPONSE

State law clearly gives the General Assembly (hereinafter the “Legislature”) a wide range of powers and it also clearly gives the University of Arkansas Board of
_ Trustees (hereinafter the “Board”) some degree of independence from political

pressure in managing the affairs of the University. The line where the Legislature’s powers end and where the Board’s begin has never been and perhaps cannot be clearly defined. However, for the reasons set forth below, I think the Board probably has the ultimate authority to determine where athletic events will

be held.

I must stress two things at the outset. First, you have not asked for my opinion on where the Arkansas Razorbacks should play their football games. Your question concerns the purely legal issue of whether the Legislature has the constitutional authority to dictate the location of Razorback home football games. Second, and more importantly, although the question you present relates only to football games, there is actually a much broader issue at stake -- namely, to what degree can the Legislature involve itself in a state-funded university’s affairs? This broader issue touches on concepts like academic freedom and political influence

323 Center Street © Suite 200 ¢ Little Rock, Arkansas 72201 (501) 682-2007 « FAX (501) 682-8084 Internet Website e http://www.ag.state.ar.us/

The Honorable Bill Gwatney
State Senator

Opinion No. 2000-007

Page 2

on the quality of higher education in our state. I will not attempt to confront those issues in this opinion, but this opinion must be understood in a context broader and

more substantial than football games.

In responding to your request, I am guided by the following tenet stated in Hooker y. Parkin, 235 Ark. 218, 221 357 S.W.2d 534 (1962):

[OJur state Constitution is a restrictive document; whereas our Federal Constitution is a document of delegated powers. The Federal Government has no right to act in a given field unless authority to do so has been delegated to it by the States. To the contrary, the Legislature (which is made up of the people's elected representatives and spokesmen) has absolute power and authority to legislate in all fields unless prohibited or restricted from doing so by the State Constitution or unless authority to so act has been delegated to the Federal Government and such authority has been exercised by the Federal

Government.

(Emphasis added.)

The Legislature does not have absolute power and authority when it comes to the State’s public universities. Amendment 33 to the Arkansas Constitution establishes some limits. In my opinion, the answer to your question turns on the application of Amendment 33. This amendment does not apply solely to the Board, or even to boards of trustees for higher education. It is generic in nature and applies to all boards and commissions “charged with the management or control of all charitable, penal or correctional institutions and institutions of higher learning of the State of Arkansas.” In pertinent part, Amendment 33 provides:

BOARDS AND COMMISSIONS GOVERNING STATE
INSTITUTIONS

2. Abolition or transfer of powers of board or commission --
   Restrictions.

The Honorable Bill Gwatney
State Senator

Opinion No. 2000-007

Page 3

The board or commission of any institution, governed by this amendment, shall not be abolished nor shall the powers vested in any such board or commission be transferred, unless the institution is abolished or consolidated with some other State institution.' In the event of abolition or consolidation, the new board or commission shall consist of a membership of five, seven,

or ten.

(Emphasis added.) As reflected in the highlighted passage, this amendment prohibits any “transfer” of “vested” power from the Board unless the University of Arkansas is abolished or consolidated with another institution. The Arkansas Supreme Court has not interpreted this part of Amendment 33, and, as discussed below, I cannot say with exactness where the Legislature’s powers end and the

Board’s begin.

In Arkansas-Missouri Power Corp. v. City Of Rector, 214 Ark. 649, 655, 217 S.W.2d 335 (1949), the Supreme Court observed that "[w]here ordinary words are used in the Constitution, they must be construed in their popular and general sense, as the people who voted for it would understand them.”

The term “transfer? does not invite elaborate construction or interpretation. Biack’s Law Dictionary defines the term as follows: “To convey or remove from one place, person, etc., to another; pass or hand over from one to another; specifically, to change over the possession or control of... .” Basically the term “transfer” means to pass from one to another. Therefore, a “transfer” occurs when a vested power is shifted from the Board to the Legislature.

The power in question is the ability to decide where the Razorbacks play their home football games. But is that a “vested” power? Black’s Law Dictionary defines the term “vested” in pertinent part, as follows: “Fixed; accrued; settled; absolute. Having the character or given the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent.” While helpful in some respects, this definition appears to beg the central question — namely, exactly which powers are vested in the Board? Here lies the fundamental uncertainty.

' The legislative power to consolidate or abolish Amendment 33 boards distinguishes them from constitutional agencies on the order of the Game and Fish Commission or the Highway Commission. Moreover, the Legislature retains the power of appropriation over Amendment 33 boards.

The Honorable Bill Gwatney
State Senator

Opinion No. 2000-007

Page 4

The intent of the language is important. As the Supreme Court noted in City of Fayetteville y. Phillips, 320 Ark. 540, 544, 899 S.W.2d 57 (1995), it is impermissible “to endorse a procedure that could result in whittling away at the intent of the Constitution.” With respect to determining constitutional intent, the

Supreme Court has further observed:

In construing an ambiguous provision, this court should focus on voters’ intent and not the intent of legislators or vested- interest groups. We have held that in construing the provisions of the constitution we endeavor to effectuate as nearly as possible the intent of the people in passing the measure, and if necessary as a means of attaining that end, a liberal interpretation will be warranted as it may be ascertained from the language used. See Knox v. Williamson, 241 Ark. 455, 408 S.W.2d 501 (1966); Raney y. Raulston, 238 Ark. 875, 385 S.W.2d 651 (1965).

Southwest Arkansas Communications, Inc. v. Arrington, 296 Ark. 141, 147-48, 753 S.W.2d 267 (1988) (emphasis added).

As the Supreme Court noted in City Of Little Rock v. AT&T Communications of the Southwest, Inc., 318 Ark. 616, 622, 888 S.W. 2d 290 (1994), it is fully appropriate, in attempting to determine the intention behind a law, to examine the law “historically, as well as the contemporaneous conditions at the time of its enactment, consequences of interpretation, and matters of common knowledge within the limits of this court's jurisdiction. Mears, County Judge v. Ark. State Hospital, 265 Ark. 844, 581 S.W.2d 339 (1979); see also Hot Springs Elec. Light Co., 70 Ark. 300, 67 S.W. 762.” Unfortunately, there is no helpful legislative history, but the history of the amendment is somewhat illuminating. This is perhaps best summarized in Robert A. Leflar’s, The First 100 Years: Centennial History of the University of Arkansas 173-182 (Univ. of Arkansas Foundation

1972).

Professor Leflar reports that the groundwork for Amendment 33 was laid in 1939, when Governor Carl Bailey persuaded the Board, which was heavily weighted with Bailey appointees, to elect J. William Fulbright to the presidency of the University of Arkansas. Bailey then wielded his influence to persuade the Board to adopt a mandatory-retirement policy apparently designed to remove several

The Honorable Bill Gwatney
State Senator

Opinion No. 2000-007

Page 5

professors whom the governor held in disfavor. The new policy was highly unpopular with the faculty. In 1940, Bailey ran for re-election and lost to Homer Adkins, who fervently wished to purge the University of Bailey supporters, including Fulbright. In spite of his promise to “Take the University out of Politics,” Adkins pressured the Legislature to change the law to allow him to appoint anew all members of the Board. The leadership of the Legislature balked but promised they would secure enough resignations to assure him a majority of supporters on the Board. The Legislature followed through on this promise, whereupon Adkins prevailed upon the new Board to fire Fulbright and various other Bailey supporters. These politically motivated firings generated loud protest both on campus and in the press. In 1942, the political manipulation of the Board by both Bailey and Adkins prompted the Little Rock Civitan Club to sponsor Amendment 33, which was designed to stabilize Board membership by freezing the number of members and staggering their terms. The amendment laid out the procedure for removing a board member and restricted any transfer of its

vested powers.

This background is instructive in that it reflects that the people adopted Amendment 33 in reaction to both executive and legislative intrusion into University affairs. It appears the voters, in prohibiting the “transfer” of the Board’s “vested” powers, intended to preclude any conveyance of the Board’s substantive policymaking authority to any other entity, be it another board, an administrative agency, the governor or even the Legislature itself.

The emergency clause of Act 272 of 1943, the legislation enabling the implementation of Amendment 33, states:

It is hereby declared and found that delay in the effective date of this Act would be contrary to the will of the people of the State of Arkansas . . . and would be in conflict with the purpose of the Amendment and would have a tendency to render uncertain the policies and actions of the Board of Trustees of the University of Arkansas; [and] that the Board of Trustees, as constituted under

? Adkins even persuaded the board to change the name of the new football stadium from “Bailey Stadium” to “Razorback Stadium.” /d. at 177. Fulbright exacted revenge for his dismissal by first defeating an Adkins protégé in a congressional race and later defeating Adkins himself in a Senate race. Jd. at 181.

The Honorable Bill Gwatney
State Senator

Opinion No. 2000-007

Page 6

Amendment 33, should begin immediately the shaping of the policies of the school... .

(Emphasis added.) This emergency clause demonstrates the Legislature’s contemporaneous recognition that the voters intended the Board immediately and without interference to pursue policies of their own devising. The Arkansas Supreme Court has held that'a statute enacted shortly after a constitutional amendment should be given weight as indicating the appropriate construction of the constitutional provision under which the statute was enacted. See Hays v. McDaniel, 130 Ark. 52, 196 S.W. 934 (1917). The court has also held that while a legislative interpretation of a constitutional provision is not binding, it is persuasive and entitled to consideration if there is any doubt or ambiguity concerming the constitutional provision. See Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978). See also Stayton v. Paschall, 9 F.2d 109 (D.C. Ark. 1925).

Significantly, the Legislature has acknowledged the limitations placed on it by Amendment 33 on a number of other occasions. The Legislature has been fairly consistent in recognizing that while it retains control over appropriations, administrative and budgetary matters, Amendment 33 insulates covered boards from legislative interference in matters of policy. See, e.g, A.C.A. § 12-27- 105(1)(A); A.C.A. § 25-10-111(c)(1); A.C.A. § 25-10-104(d)(1); and A.C.A. § 25- 10-402; but see A.C.A. § 6-61-201 ef seq. (investing the Arkansas Higher Education Coordinating Board with specified decision-making powers in matters of higher education).

A legislative acknowledgement of the need to maintain Board authority in certain matters of policy is even found in the act that defined the Board’s powers — legislation enacted as Act 95 of 1887, long before Amendment 33 was adopted:

A.C.A. § 6-64-202. Board incorporated - Powers and authority.

The board is made a body politic and corporate and shall have all the powers of a corporate body, subject to the Constitution and laws of the State of Arkansas, and the board possesses all the power and authority possessed by the board of trustees of the university under laws existing on March 30, 1887.°

3 Given the fact that Amendment 33 forbade the transfer of board powers vested as of January 15, 1943, and possibly all powers that vested thereafter, the date recited in this statute is clearly not applicable. What

The Honorable Bill Gwatney
State Senator

Opinion No. 2000-007

Page 7

Simply put, the Legislature has very broad powers but its powers are-defined by the State Constitution, which has incorporated as a matter of constitutional law what previously was merely a statutory grant of Board “power and authority.” If the Legislature (or the Governor) could routinely interfere with University affairs, it would render Amendment 33 meaningless. In my opinion, the Legislature has correctly acknowledged that matters of University policy rest with the Board.

This office has previously recognized this distinction between policy-making and administration. It has opined that, on the one hand, whereas Amendment 33 would not bar the General Assembly from establishing a classification and compensation plan for employees at institutions of higher education, Op. Att’y Gen. 88-302, on the other, it would bar the General Assembly from divesting an institution of higher learning of its “lifeblood” power to offer particular degree programs, Op. Att’y Gen. 88-154.*

Again, let me emphasize that the line of demarcation between these two categories has never been drawn by the Arkansas Supreme Court. It is therefore impossible for me to confidently say whether dictating the venue of Razorback football games is a power “vested” in the Board. However, there is a reasonable two-part test which may answer the question: (1) Is the power one that the University board has traditionally exercised? and (2) Does the power indeed involve the making of substantive policy? If so, the venue decision should be made by the Board, guided by its fiduciary obligations to the University.”

I think the answer to both of the questions just posed is probably “yes,” but answering them will turn on considering the facts. There is obviously a spectrum of potential difficulty in determining whether a particular issue is one of

I find significant is the Legislature’s recognition that the Board should be free to exercise its traditional power and authority.

4 My predecessor’s conclusion in Op. Att’y Gen. 88-154 was echoed in Board of Trustees v. State Board of Higher Education, Faulkner County Circuit Case No. CIV-95-201, in which the court miled that the University of Central Arkansas Board of Trustees could not be prohibited from instituting a doctoral program by order of the State Board of Higher Education, which has been since been replaced by the Arkansas Higher Education Coordinating Board. A.C.A. § 6-61-201 (Supp. 1999).

> Although the Board owes fiduciary obligations exclusively to the University, I should note that the
University is a state-funded institution, which might well warrant the Board’s considering the general public interest in making its determination.

The Honorable Bill Gwatney
State Senator

Opinion No. 2000-007

Page 8

substantive policy, with some issues clearly qualifying while others do not. As I have previously noted, the courts have not yet developed any set of objective factors to consider in determining what constitutes an issue of substantive policy. Perhaps future decisions will provide guidance on a case-by-case basis. In the present case, a court looking at these two questions would probably seek a broad range of factual evidence before reaching a conclusion. Although the court’s factual inquiry should focus only on the issue of who should make the venue decision, not on what that decision should be, the inquiry might nevertheless be intensive. For instance, deciding whether the venue decision is one of substantive policy could require significant factual inquiry into such matters as the likely economic effects of the decision, the effect on University affairs and the general public interest. I am not in a position to make those factual determinations.

In closing, I will simply note that regardless of which body ultimately decides the venue issue, the decision will be made by a group representative of all Arkansans. As an elected body, the Legislature obviously reflects the will of citizens throughout the state. Moreover, A.C.A. § 6-64-201 dictates that membership on the Board be divided among the state’s congressional districts. This requirement of geographical diversity is clearly designed to ensure that the Board make its decisions based on a statewide perspective, not merely a regional one.

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.

Sincerely,
Wide Ary or —
MARK PRYOR

Attorney General

MP/JHD:cyh