Can Anyone Hold the Board of Regents Accountable?

Then-Gov. Sonny Perdue in 2008. Credit: Bruce Tuten

Gov. Brian Kemp’s push to make Sonny Perdue chancellor of the University System of Georgia (see the May 12 issue of Flagpole) came along just in time to highlight a legal question that has been plaguing the USG for years—whether the system can be held accountable for violating the Board of Regents policies that are supposed to govern it.

Does Kemp seeking to appoint the governor who appointed him 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 Gov. Eugene 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 president Anthony Tricoli sued the USG’s leaders, 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 $20.9 million reserve fund. A USG postmortem review found that the falsifications had been hidden from Tricoli, so 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 metastasize. Attorney General Sam Olens allowed Huckaby and Wrigley to lead an investigation of themselves (like Matt Damon in The Departed) in the GPC financial scandal. The USG then appointed Olens president of Kennesaw State after axing then-president Dan Papp. When KSU faculty tried to block that appointment for political interference and favoritism, not to mention potential extortion and bribery, Olens’ successor as 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 court added to this strain by holding that state agencies could not be held accountable under contract for deceptive trade practices when the Georgia Lottery Corp. 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 Perdue. Like Olens, is he the beneficiary of a payoff 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 USG held the Regents, then-UGA President Michael Adams and the state attorney general 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 may end up getting appointed, no matter how brazen the political interference. No matter what the BOR policy, who is going to enforce it, and who is going to be held accountable?