Article X, Section 9 (1) of Montana's constitution establishes a "board of education composed of the board of regents of higher education and the board of public education. This board of education is responsible for long-range planning, and for coordinating and evaluating policies and programs for the state's educational system. It shall submit unified budget requests. A tie vote at any meeting may be broken by the governor, who is an ex officio member of each component board."
Subparagraph (2) of Section 9 states, "The GOVERNMENT and CONTROL of the Montana university system is vested in a board of regents of higher education which shall have FULL POWER, RESPONSIBILITY, and AUTHORITY to SUPERVISE, COORDINATE, MANAGE and CONTROL the Montana university system and shall supervise and coordinate other public educational institutions assigned by law." (emphasis added) This section also specifies that there shall be seven board members "appointed by the Governor, and confirmed by the senate." It also provides that the board shall appoint a "commissioner of higher appropriations under the control of the board of regents are subject to the same audit provisions as are all other funds." More on that provision later.
If one reads the verbatim transcript of the Montana constitutional convention, one wonders if the delegates actually knew what they were voting on, at times, as they considered Section 9 of Article X. There were no less than three major proposals under consideration at the time the committee of the whole was considering this article. Questions from delegates during the lengthy debate clearly indicate the confusion on the floor. What is now commonly referred to as the "Rollins Amendment" was offered after long discussion and much confusion, and it appeared that its adoption many have been as a result of confusion and tiredness of the delegates. We have studied a number of publications dealing with constitutional authority granted in the Montana Constitution to our board of regents. (see Education Commission of the States publication entitled "State Postsecondary Education Structures Handbook, 1994).
C-30 amends Article X, Section 9, by stating, "There is a department of education, with a director appointed by the governor. The department and the director shall have duties as assigned by law. There is a state education commission, consisting of eight members appointed by the governor and confirmed by the senate to staggered terms, as provided bylaw. The commission shall have duties assigned by law."
We supporters of C-30 believe that it places higher education, as an agency of state government, on a somewhat equal status with other agencies of state government serving our citizens. We very firmly believe that the system of "checks and balances", a foundation principle of our democracy, is nearly nonexistent for higher education under our present Montana constitution. The phrase "as assigned by law" in C-30 means that the elected representatives of the people - governor, legislators, and supreme court justices - will be involved in K-12 education and other functions of our state government.
This proposal to restructure the governance of higher education in Montana is not unique to this state. In two recent publications from the Education Commission of the States ("A Restructuring Act" and "State Postsecondary Education Structures Handbook, 1994") the point is made that restructuring higher education is a hot topic of the nineties in many stales..."many aspects of the New Jersey experience mirror the debates of appropriate state roles in higher education being held in governors' offices and statehouses nationwide." The Western Interstate Commission for Higher Education (WTCHE) has an August, 1996 conference scheduled that is entitled "Transforming Higher Education: New Structures for Finance, Governance, Delivery and Productivity". This proposed change under C-30 seems in keeping with changes we see in many other states.
We believe that there have been clear abuses by the board of regents under our 1972 constitution because of the lack of "checks and balances" in our current constitution. The statement in the second paragraph dealing with being "subject to the same audit provisions as are all other funds" is a case in point. The system consistently pays/transfers budget dollars to their foundations and then claims they can not be audited because these foundations are private corporations. The most glaring of recent abuses is explained in detail in the report from the Attorney General entitled "Legal Analysis of the Disposition of Public Lands by the Montana University System" (April 15, 1996). This report concludes, "the board of regents did not comply with constitutional and statutory provisions governing the disposition of public lands." This report further concludes that about the only corrective action available will have to come from the legislature because "all dispositions reviewed are subject to invalidation". We believe that this mess would not have been created had there been proper "checks and balances" present in the constitution. A strong chairman of the education committee and a strong education voice in the constitutional convention prevailed over common sense.
A number of questions raised on the floor regarding Article X received the same answer: "The unified budget will take care of that problem." We all know that the board of education has never submitted a unified budget request.
C-30 will make higher education clearly a part of the executive branch of state government with the commission much like that of the present board except that it will be subject to statutory authority as defined by the three branches of government exercising their proper constitutional roles. As a retired educator who has served in the K-12 system and the higher education system, I am very positive about the fact that there will be a person to "plea the case" of higher education in the government where higher education is not represented. Cabinet status is important.
C-30 responds to the strong voice we hear relative to all of government- that it become more accountable. Under the current constitutional language, we believe accountability can not be achieved with so much constitutional independence. Checks and balances are needed. Higher education has often said to the legislature, "Just tell us what information you want, and we will provide it". It has been our fairly frequent experience when making such requests that a common answer has been that the information is not available in a format common to other agencies of Montana government or common to other state higher education systems. Accountability and comparability are not possible under these circumstances.
C-30 will actually create greater flexibility for the operation of the Montana higher education system. Current constitutional language restricts the will of the people to a fairly complex procedure to change it. Should the public educational system be responsible to the will of the public? We believe it should be.
C-30 will put 150 elected members of the legislature into a position where they can be involved in the higher education system of Montana to a greater extent than they can be now. We believe that elected persons/representatives of the people are very appropriate to the governance of the system. If they are not responsive to the people, they are subject to removal in tow or four years. Having examined the membership on the board of regents for the past ten years and the membership of the legislature, we have concluded that the members of the legislature better represent the Montana electorate than the membership of the board of regents. We find professors, employees and students all with voting membership in the Montana legislature. They tend to be some of the more capable members of the legislature. When the question is raised if the legislature has the knowledge and qualifications to become involved in higher education governance, we believe the answer must be in the affirmative.
Having read the Spring 1996 (Volume 6 Number 2) of the "Montana Professor" very carefully, I am concerned that we are all not reading the current constitutional language that proposed by HB229 (C-30), and the transcript of the constitutional convention. I am concerned that there is a good deal of "crystal ball gazing" that does not seem to have much basis in fact for the conclusions reached.
Chancellor Stearns of the University of Montana-Western presents concerns-not to any greater degree than academic freedom is a concern under the current governance structure. Both federal and state laws provide much more protection to employees than were provided at the time the cases cited by the chancellor took place. As a legislator, if I wanted to "scratch", (as Dr. Stearns called it), some professor, I am sure that I would prefer to do that "scratch" among a small group of regents than to try it among 150 legislators, who face re-election in the near future. Could I reasonably convince a majority of 150 legislators in a public forum, or would it be easier among a small group of regents? There has always been that "Old Saw" around the legislature that if you don't keep the legislators happy they will cut your budget. In fourteen years in the legislature, I have never heard a member of the legislature make that proposal. (You know I would be happy to tell on the opposition if they had done that, of course!) If I read Dr. Stearns's article correctly, she seems to believe that the governing board will be lost under C-30. The board does become a commission, but it is still a governing board. The sky will not fall under C-30!
Eric Feaver and Jim McGarvey seem to also make the error Dr. Stearns makes when they say, "the board of regents will disappear into a state commission." It is true the title changes and they will function according to state law to a greater extent, but the commission will exercise governance duties assigned by law. These two gentlemen also state a belief that, "the legislature, by referendum, will seek to amend away constitutional language that states there is a board of public education...." That is conjuncture at best, but I would remind them that such legislation was drafted and introduced in the 1995 session, and was dumped by a legislature that was not highly positive toward education. It may be worth noting that the board of public education does not have the broad constitutional authority of the board of regents and is much more subject to statutory authority at this time. There are checks and balances on the board of public education. Feaver and McGarvey are to complimented on their statement, "We believe the failure of the board of regents and the board of public education to take their constitutional charge seriously is at least in part responsible for HB229 and the chronic disconnect between the two governing boards." This statement confirms our belief about the current constitutional language governing education, and we strongly agree that there has been a "lack of communication and a lack of coordination between K-12 and higher education as Feaver and McGarvey state. This problem likely stems in part from the different constitutional authority the two boards were granted. We have never understood why higher education needs "protection" that K-12 does not need.
Commissioner Baker quotes C-30 as stating the commission, director, and department "shall have duties assigned by law--in other words, the legislature." Although that makes it sound much simpler than it is, I have to ask, "What is wrong with that?" A bill will have to be drafted to make any changes in operation. It will have to go through at least two public, formal hearings, be debated on the floor of both houses, receive a majority vote in both houses, be subject to amendatory and outright veto of the governor, receive the governor's signature, and pass judicial review. Every elected official involved in the process will be subject to review by the electors of Montana at some future date. We believe that is accountability! Dr. Baker raises the question of whether the legislature and governor can make better decisions about education than the seven member board of regents. Well, we still have a board--now called a commission--that will retain a great deal of governance authority, and as noted earlier in this article, the legislature has a great representation of persons with education and/or experience in both higher education and K-12 education. We believe it is a great place to determine statutory laws to govern higher education.
As a closing observation, we would like to note that the opposition to C-30 seems to stem from those who have a "vested interest" in the operation of the higher education system in Montana. We can anticipate that advisory board members and others close to the system will become involved in this issue at the behest of university leaders. Most of this opposition seems to be based on fear of change, which is surprising in that so many of them agree that higher education has not been faring very well in funding and public support in recent years. That reminds me of the old saying, "Insanity is doing a thing over the same old way and expecting different results to take place". If the higher education system is to receive more grass roots support, we believe an image change is necessary. And after over twenty years of experience under the present constitutional language, we believe a change might bring different/better results.
Kevin Phillips, a former advisor to President Nixon and a well know political commentator today, in his book Arrogant Capital discussed the ever expanding power of the federal government and the image it has created among American citizens. He credits this poor image and expansion of power to the failure of checks and balances to function properly and the ever increasing failure of checks and balances to function properly and the ever increasing failure of Congress to respond to the wishes of the public. He notes that Congress is more and more under the influence of lobbyists/influence peddlers rather than the citizens. We believe that image is a major problem for the higher education system in Montana, and that it is a result of constitutional authority that is too broad, which has led to ignoring the citizens of Montana and their wishes relative to the operation of Montana's system of higher education.
The recent report from the attorney general of Montana on the violations over many years by the board of regents in selling and transferring public lands, and the membership of chief administrative officers within the university system serving on the boards of directors of corporations at an added income of up to fifty thousand dollars per year points to a state government operation that is out of control. Apparently there are stock options above the salaries being paid to these full-time employees of the university system. If all benefits are considered for these administrative personnel, the State of Montana is paying some of them well over one hundred thousand per year for their services, and they are finding time to work for corporations for an additional fifty thousand or more per year. These are two examples of how the system has clearly violated the trust of the people. Under the current constitutional authority, the people have no oversight of this action other than the board of regents. We assume that the regents have been aware of this matter, and have approved the employees of the system being involved in these assignments.
Under the current constitutional authority, the board of regents can create bonded indebtedness without passing review by other executive or legislative involvement. We believe creation of twenty or thirty year debt should not be done easily. We further believe that changing the constitutional authority of the board of regents will avoid the university system's being required to buy back illegally transferred lands at a cost of over three hundred thousand dollars more than what they receive from the sale.
The real bottom line in terms of the potential for Montana education from K-12 through the university graduate study is that it can all be improved by a more cooperative mode in all of education. For many years it has appeared that the two education boards in Montana have operated as though they are unaware of the existence of the other board. C-30, we believe, has great potential for increasing the cooperation and efficiency of all Montana education. One hundred members of the Montana 1995 legislature agreed with that conclusion when they cast a positive vote to place the question on the ballot.
Governor Marc Racicot has announced his strong support for C-30 and noted in his article in the "Montana Professor" that the public needs to reclaim ownership, responsibility and authority for higher education in Montana.