Sweeney gives Rutgers 90 days to change governance structure

Senate President Stephen Sweeney says he will send the Assembly his Senate-passed bill on the Rutgers boards' makeup if the two boards do not act.
Senate President Stephen Sweeney says he will send the Assembly his Senate-passed bill on the Rutgers boards' makeup if the two boards do not act. (AKIRA SUWA / Staff Photographer)
Posted: June 21, 2014

TRENTON - State Senate President Stephen Sweeney said Thursday that he would give Rutgers University 90 days to change its governance structure, based on an internal university report, or he would move forward with controversial legislation to expand its governing board.

If the board of governors and board of trustees do not act, Sweeney (D., Gloucester) said, he would deliver the legislation to the Assembly.

"The proposition is simple: Rutgers has a chance to reform itself or the state will reform Rutgers," Sweeney said in a statement about an hour after the Senate passed the bill on a 22-13 vote.

The chair of the trustees told reporters that her board would "take advantage of the 90 days" but would not be forced into action. The trustees, voting 35-3, passed a resolution Thursday formally opposing the bill.

The legislation has touched off a firestorm at Rutgers, whose supporters have panned the bill as an unconstitutional political power grab.

In a June 18 letter to the boards, Rutgers general counsel John J. Farmer Jr. advised them that they should continue to resist the legislation but said the university could face "insurmountable" challenges were it to sue the state should the bill become law.

And in an interview before the floor vote Thursday, Sen. Raymond J. Lesniak (D., Union) said: "All the trustees have to do is adopt those [internal] recommendations and I think this whole issue will go away." A Rutgers alumnus, Lesniak voted against the bill.

Sweeney's announcement marked a turn of events. When Senate Minority Leader Thomas H. Kean Jr. (R., Union) asked him at a Senate Higher Education Committee hearing this month how his bill was "at all constitutional," Sweeney replied: "We'll see what happens in court."

Thursday's developments came as the board of governors and board of trustees met separately in New Brunswick.

"I'd like to see the senator's statement before I have any reaction," Gerald Harvey, chairman of the governors, said in an interview.

At least one major recommendation appeared unlikely to be adopted within 90 days. Dorothy Cantor, the chair of the trustees, said her board was unlikely to reduce its size.

"At this point, the trustees would prefer to keep the board the way it is," she said. "They see it as the absolute bulwark that protects the integrity, the autonomy, and the independence of the university."

Sweeney's bill would expand the board of governors - the more powerful of the two - from 15 members to 19. Twelve would be appointed by the governor and seven by the trustees. The trustees serve in a largely advisory role.

All four new members would be appointed by the governor, though two would have to be trustees. Two members would be recommended to the governor by the Senate president and Assembly speaker.

The internal Rutgers report, released to the Legislature last week at Sweeney's request, recommended improving efficiency at committee meetings; changing the role or size of certain committees; and decreasing the voting membership of the 59-member board of trustees to between 36 and 43 members.

Some of its recommendations are vague, such as on improving relations with state legislators.

In the resolution they passed Thursday, the trustees declared their opposition to the bill, calling it "an unlawful attempt by the state to alter the governance of Rutgers." But the two-paragraph resolution also suggested outreach to legislators:

"The Board of Trustees will, over the next 90 days, and thereafter, review its governance structure and will continue to review and evaluate the Joint Task Force on Governance Report, and will welcome a dialogue with legislative leaders," according to the resolution.

Sweeney has said the bill is needed so the board of governors better reflects the university's expansion into health sciences. Two of the new board members would need to have medical expertise.

Rutgers activists say any changes to the university's governance structure must be approved by the trustees.

They point to a 1956 law that made Rutgers the state university of New Jersey. It established the board of governors and created a contract between the trustees and the state, according to a legal memorandum issued this month by the state's nonpartisan Office of Legislative Services.

Changing the governing board without the trustees' consent could breach that contract, violating the U.S. and New Jersey Constitutions, the memo said.

Farmer wrote in his letter - a copy of which was obtained by The Inquirer - that he believed the legislation would be unconstitutional unless it was consented to by the two boards.

But even a win in court would carry unknowns, he said, and could result in a years-long battle with Sweeney, who is said to be considering a gubernatorial bid in 2017.

The state is the largest source of funding for the university, Farmer noted.

"Litigation will bring uncertain results even if successful, and will alienate our greatest benefactor at a time when Rutgers' financial challenges are great and the state will be looking for line items to cut," Farmer wrote.

More broadly, Farmer said, Rutgers should work to improve its relations with the state - "our largest benefactor by unimaginable orders of magnitude" - especially at a time when the university is undergoing other changes, such as entering the Big Ten Conference.

Asked about Farmer's citing political reasons for not going to court, Cantor said the trustees "will take all of that into consideration, but nothing is off the table."

Farmer was the state attorney general from 1999 to 2002 under Gov. Christie Whitman. He was appointed acting general counsel in April 2013 after the Mike Rice basketball scandal.

He declined to comment on his letter.

Farmer, who will soon step down as general counsel and return to the faculty, noted that his role was advisory, and said his letter was in part based on personal experience in Trenton.

He said the bill should be viewed in the context of a series of battles between Sweeney and Rutgers in recent years.

In 2012, Sweeney and Gov. Christie pushed to merge Rutgers-Camden with Rowan University as part of a reorganization in New Jersey higher education. That proposal was ultimately dropped but resulted in a compromise that created a joint board overseeing new health sciences partnerships between the schools.

Then last year, Sweeney attempted to abolish the board of trustees, saying Rutgers' dual-board structure was antiquated.

"For the third time in as many years, Rutgers faces a fundamental - indeed, almost an existential - challenge to its status within New Jersey," Farmer wrote.

But Farmer said it would be a "grave mistake" to equate Sweeney's current proposal with his previous ones.

"From attempting to take an entire campus, to attempting to eliminate an entire board, to attempting to disrupt the margin of public to trustee governors, to the current effort, there has been a steady erosion of any ambition to 'take over' Rutgers," Farmer wrote.

He added: "The current effort seems closer to face-saving retreat than to creeping aggression."


aseidman@phillynews.com

856-779-3846 @AndrewSeidman

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