Is the Board of Regents untouchable?

“We believe misinformation throughout the search no longer allows us to fulfill our obligation, and it is with great disappointment we resign from the Chancellor search going forward” — Parker Executive Research on search for USG Chancellor

Chancellor of the University System of Georgia (USG) Steve Wrigley is planning to retire at the end of June, just ahead of a request to empanel a special grand jury to look into systemic financial fraud (in which Wrigley is implicated). Meanwhile, Gov. Brian Kemp has been pushing for an insider political baseball appointment of former Governor Sonny Perdue. That effort has broken down temporarily with the announcement that an acting chancellor will step in, for now, for Wrigley. But there is a reason that no permanent chancellor is being considered at the moment: Kemp remains committed to the appointment of Perdue that would keep fresh eyes, from outside the current Georgia political establishment, from taking a look at the alleged corruption for which the grand jury has been requested.

Kemp’s refusal to give up on making Sonny Perdue Chancellor — after the first search firm quit, and despite Perdue’s top ten obvious drawbacks, and despite the continuing resistance that has forced an interim appointment — highlights a legal question that has been plaguing the USG for years: whether the system can be held accountable for violating the Board of Regents (BOR) policies that are supposed to govern it.

Does Kemp seeking to appoint the Governor who appointed Kemp Secretary of State—the position from which Kemp oversaw his own election as Governor—violate BOR Policy 6.4 against political interference in the university system, passed after Governor Talmadge rigged a reappointment vote by replacing members of the Board? In a related question, have Georgia courts protected the USG so seamlessly, in the meantime, that it can no longer be held accountable for violations of Board of Regents policy, in any case?

The issue was raised, but never directly answered, when former Georgia Perimeter College (GPC) President Anthony Tricoli sued Steve Wrigley and Hank Huckaby for violating Regents policies incorporated in Tricoli’s written contract, including the policy guaranteeing Tricoli a statement of specific charges and a hearing, when they fired Tricoli after it was publicly revealed that GPC financial reports were falsified to hide the disappearance of GPC’s $20.7 million reserve fund. A USG post-mortem review found that the falsifications had been hidden from Tricoli, so that a hearing into these matters might have helped his cause at the time.

The Georgia Court of Appeals, however, handed down a broad ruling that sovereign immunity barred Tricoli from pursuing his breach of contract case for violation of Regents policy, even if Wrigley and Huckaby had committed crimes of fraud in the process. The court did not specifically hold that Regents policies were meaningless, but that was certainly the effect on Tricoli.

This tiny bad seed continued to metastacize. Attorney General Sam Olens allowed USG Chancellors Huckaby and Wrigley to lead an investigation of themselves (like Matt Damon in The Departed) in the GPC financial scandal. The USG then appointed Sam Olens president of Kennesaw State, after axing current president Dan Papp. When KSU faculty tried to block that appointment for political interference and favoritism, not to mention potential extortion and bribery, Attorney General Chris Carr never responded to any of the allegations in the lawsuit. The courts helped out, though, letting Olens’ appointment stand against the KSU faculty’s uncontested challenge on grounds of sovereign immunity, notwithstanding any violations of BOR policy or crimes that may have been committed. Once again, sovereign immunity meant no accountability, regardless of policy.

The Georgia Court of Appeals built on that theme when it held that UGA had no liability for stealing trade secrets from its vendors, regardless of Regents policy. Sovereign immunity again.

The Georgia Court of Appeals added to this strain by holding that state agencies could not be held accountable under contract for deceptive trade practices when the Georgia Lottery Corporation refused to pay on a winning lottery ticket. The sovereign immunity ruling meant the frustrated ticket holder could not even go to court to present facts and try to make the case that the semi-private state agency should have to pay off.

So along comes Sonny Perdue. Like Olens, is he the beneficiary of a pay-off for a political favor? Does that violate BOR Policy 6.4 against political interference in the university system?

As it stands now, Georgia courts seem to have said that the USG and Board of Regents are immune, and therefore cannot be sued. Therefore, like the lottery ticket holder, no one even has a chance to go to court with evidence and try to prove that Regents policy was violated, much less enforce the policy.

This emerging doctrine has a practical effect on Athenians affiliated with UGA. The original sovereign immunity case involving the University System held the Regents, then-UGA President Michael Adams, and the Attorney General of Georgia immune for manufacturing fake evidence, tampering with witnesses, and committing perjury in the failed attempt to revoke the tenure of a UGA professor who was a vocal critic of Adams. A tenure revocation is supposed to be governed by USG and Regents policies, but those policies were washed out on a tide of sovereign immunity and never considered.

This apparent unenforceability of Regents policy should come as unwelcome news to the UGA students, faculty, and staff who rely on Regents policies every day for their education and livelihood—not to mention the roughly 500,000 Georgians statewide in the university system.

It also means that Sonny Perdue, known for partisan interference as head of the USDA may end up getting appointed, no matter how brazen the political interference. After a brief pause, Sonny’s proponents are pushing him again. No matter what the BOR policy, who is going to enforce it, and who is going to be held accountable? —CL—