                          V.Vm A-m-0-y     GENERAL
                                  OF TEXAS
                                  &Jfflw.N         W37ll
  JOHN    Ia.     IalLL
A-R-            o-Ax.

                                      August 31, 1977



         Honorable J. C. Martin, Jr.,              Opinion No.   H-1045
           President
         Board of Directors                        Re: Selection of a
         Texas A & I University                    chancellor and president
         Kingsville, Texas 78363                   at Texas A & I University.

         Dear       Mr. Martin:

              You request our opinion concerning the procedure by-
         which certain appointments to administrative positions were
         made by the Board of Directors of the Texas A & I University.

              Texas A C I University has campuses at Kingsville,
         Laredo, and Corpus Christi. The Legislature recently en-
         acted House Bill 944 which establishes and designates these
         institutions the University System of South Texas, consist-
         ing of Texas A & I University, the renamed Laredo State
         University, and Corpus Christi State University.  The name
         of the Board of Directors of Texas A & I University is changed
         to the Board of Directors of the University System of South
         Texas, and its governing authority over the component in-
         stitutions is continued. The bill becomes effective September
         1, 1977.

              At its meeting held July 7, 1977, the Board named the
         acting chancellor as chancellor of the University System of
         South Texas and named the executive vice president of Texas
         A & I University at Corpus Christi as president of Corpus
         Christi State University.  Each of the persons appointed
         had served in an acting capacity in the position to which he
         was appointed for more than a year. You ask the following
         questions about these appointments:

                          1. May the Board promote from within
                          without advertising the vacancy and
                          without conducting a search?
                                                                          \
                          2. If the answer to the above is affirma-
                          tive, may the Board make such a decision
                          under the agenda item "Executive Session,
                          Discussion of Personnel Changes," without
                          announcing the pending action?


                                         p. 4303
Honorable J. C. Martin, Jr.      - Page 2



     The Board has broad authority to manage and control
Texas A & I University.  Ed. Code 98 95.21; 104.11; 104.41 -
-43; 104.91 - .92. Texas A & I University has operated
since 1972 as a system with the position of chancellor as
chief executive officer with the approval of the Coordinating
Board and with operating funds appropriated by the Legisla-
ture. General Appropriations Act, Acts 1975, 64th Leg., ch.
743 at 2763. The Board's authority to operate as a system
with an executive officer of the system is made express by
House Bill 944. A prospective appointment to a position made
by a body empowered to fill that position is valid. -See
Attorney General Opinion V-927 (1949).

     The governing body of a State University has considerable
discretion in exercising its powers, including its power to
appoint administrators.  The courts will not interfere with
the exercise of discretion by school directors in matters
confided by law to their judgment unless there is a clear
abuse of the discretion or a violation of the law. Foley
v. Benedict, 55 S.W.Zd 805, 808, 810 (Tex. 1932); Cornette
v. Aldridge, 408 S.W.2d 935 (Tex. Civ. App. -- Amarillo
1966, mand. overr.). See Faro v. New York University, 502 F.2d
1229 (2d Cir. 1974); GGn   v. Board of Regents of Texas Tech
University, 474 F.2d 594 (5th Cir. 1973) reh. den.

      We have found no law that requires the Board to
advertise vacancies in administrative positions, conduct
a search for applicants, or otherwise engage in particular
recruitment practices.      However, we note that recruitment
practices have been challenged as discriminatory under the
1964 Civil Rights Act. 42 U.S.C.A. 9 2000e - 2(a)(l), (21,
which orohibits discrimination in employment on the basis Of
race,  color,   religion, sex, or national-origin.   See United
States v. Inspiration Consolidated Copper Co., [lml          6 mpl.
Prac. Dec. (CCH) (18918; Strain v. Philpott, 119711 4 Empl.
Prac. Dec.    (CCH) 117521. 5 se also V.T.C.S. art. 6252-16.
Thus. the Board has the aiXKoritv to select and appoint
administrative officers by any procedure it determines, as
long as its action is not unreasonable, arbitrary, capri-
cious, or discriminatory.

     Your second question is whether the notice for the
action taken complied with the Open Meetings Law, section
3A, article 6252-17, V.T.C.S. Notice posted by the Board
for its July 7, 1977, meeting included a copy'of the agenda
for the meeting, which contained the following item:
Honorable J. C. Martin, Jr.    - Page 3



                       Executive Session

          18.   Discussion of personnel changes
                (pp. 21-26).

     The action taken by the Board was the approval in
open meeting of the following motion:

           "In view of the official creation of
         our System and in order to be consistent
         with the printed University System of
         South Texas budget, that Dr. D. Whitney
         Balladay be named Chancellor of the
         University System of South Texas and that
         Dr. B. Alan Sugg be named President of
         Corpus Christi State University and that
         his name be inserted in that budget."

The Board may meet in executive session to consider the
appointment, employment, evaluation, reassignment, duties
discipline or dismissal of officers and employees, providing
it first convenes in an open session for which the requisite
notice has been given and publicly announces that a closed
session will be held under a specified section which autho-
rises the holding of the closed session. V.T.C.S. art.
6252-17, 5 2(a), (9). See Attorney General Opinion H-496
(1975). Written noticeof the "date, hour, place, and
subject of each meeting held by a governmental body" must
be given as prescribed by section 3A of the Open Meetings
Act. The notice must be "sufficiently specific to apprise
the public in general terms of each subject to be discussed."
Attorney General Opinion B-662 (1975) at 3. The notice
should set out any special matters to be considered or any
matter in which the public has a particular interest. Attorney
General Opinion M-494 (1969).

     The adeauacv of notice concerning the subject matter
at a meeting-was-at issue in Lower Colorado River Authority
v. City of San Marco?., 523 S.W.2d 641 (Tex. 1975). LCRA
attempted to increase electric rates in the city of San
Marco6 at a meeting held October 19, 1972. The notice of
that meeting made no reference to rates. At another meet-
ing on May 24, 1973, notice of the meeting included a state-
ment that the Board would consider other matters concerning
the Authority's operations

          including the ratification of the prior
          action of the Board taken on October 19,
          1972, in response [sic] to changes in
                                                                 ,       ,
.   ’




        Honorable J. C. Martin, Jr,   - Page 4 (H-1045)



                  electric power rates for electric power
                  sold within the boundaries of the City
                  of San Marcos, Texas.

             The Texas Supreme Court considered this notice and held:

                    The notice of the 1973 meeting is not
                  as clear as it might be, but it would alert
                  a reader to the fact that some action would
                  be considered with respect to charges for
                  electric power sold in San Marcos.  In our
                  opinion the notice was sufficient to comply
                  with the statute.

        Id. at 646. --
                     See also Texas Turnpike Authority v. City of Fort
        Worth, 20 Tex. Sup. Ct.~ J. 492 (JULY 27, 1977) .

              In Open Records Decision No. 103 (19751, we held that
        information which would disclose the identity of an employee
        evaluated and discussed in a properly closed session, and
        on which the board took no official action, is excepted
        from required public disclosure by section 3(a) (1) and
        3(a) (2) of the Open Records Act, article 6252-17a, V.T.C.S.
        Information reflecting discussion of personnel matters
        properly held in closed session is excepted from required
        disclosure under sections 3(a) (1) and 3(a) (2) of that Act.
        Open Records Decision Nos. 93, 82, 81, 68 (1975); 60 (1974).

             The primary interest protected by section 2(g) permit-
        ting personnel matters to be discussed privately is that in
        avoiding possible unjustified harm to the reputation of the
        individual officer or employee under consideration.   See
        Attorney General Opinion H-246 (1974). While this isan
        important interest, it cannot be permitted to completely
        eliminate the public's right to be notified with reasonable
        specificity of the subject matter to be considered at a
        meeting of a governmental body, particularly when the
        subject is one in which the public can reasonably be expected
        to have a special interest, such as the appointment of
        the chief executive officers of a university system and a
        state university. While the public is not entitled to ob-
        serve or participate in the Board's closed discussion of
        the qualifications of individuals under consideration for
        appointment to such a position, we believe that the public
        is entitled to reasonable notice that the Board will consi-
        der filling such positions at its meeting.   In addition, any
        vote or other final action on a matter discussed in closed
        session must be taken in an open meeting properly noticed in


                                p. 4306
.




    Honorable J. C. Martin, Jr.      - Page 5



    accord with section 3A. V.T.C.S. art. 6252-17, 9 2 (1).
    Thus, the legislature has decided that the governing body
    must inform the public of the fact of its action, even though
    it may deliberate in private.

         In our view, an item stating only that the Board
    would meet in executive session on "Discussion of personnel
    changes" did not provide adequate public notice that the
    Board would consider acting to fill the positions of chan-
    cellor and university president at that meeting. The term
    "personnel" is so general that it could apply to a large
    number of subjects that might come before the Board. Con-
    sequently, we do not believe the notice given complied with
    the Act's subject matter notice requirement in this instance.

         It is possible that the appointments will not be judi-
    cially challenged, but if it is properly challenged action
    taken at a meeting not held in compliance with the Open
    Meetings Law is voidable by the courts. Lower Colorado River
    Authority v. City of San Marcos, supra; Attorney General
    Opinions H-662, H-594 (1975). If the Board decides to con-
    sider ratifying the appointments at a future meeting, it
    must post adequate notice of such proposal. -See Attorney
    General Opinion H-419 (1974).

                           SUMMARY

                The Board of Directors of the Texas
              A & I University system has authority
              to select and appoint administrative
              officers by any procedure it chooses,
              as long as its action is not unreasonable,
              arbitrary, capricious, or discriminatory.

                Notice of an executive SeSSiOn on
              "Discussion of personnel changes" is not
              sufficiently specific as to subject matter
              to comply with the Open Meetings Act
              notice requirement in regard to the appoint-
              ment of a university system chancellor and a
              university president, since the positions
              are ones in which the public can reasonably
              be expected to have a special interest.
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    Honorable J. C. Martin, Jr.     - Page 6 (R-1045)


                                    Very truly yours,



                                    Attorney General of Texas

    APPROVED:




    jst




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