Request By:
Honorable James O. Overby
Legal Counsel
Murray State University
Murray, Kentucky 42071
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As legal counsel to Murray State University you have asked for an opinion concerning the definition of "faculty" adopted by the Board of Regents of that institution. Several questions regarding this definition have surfaced relative to the statutory proscription on the faculty member-regent from voting on faculty compensation. You have asked the following four questions:
"I. Is it permissible to apply the definition of 'faculty, ' as approved by the Board of Regents, in determining the applicability of the exception of 'faculty compensation' which is referred to in KRS 164.289?
II. If negotiations leading to the selection of a particular individual to be presented to the board of regents for approval have included a determination as to the salary the university is willing to pay and the applicant is willing to accept, is the faculty member of the Board of Regents excluded from voting on the appointment?
III. Does the faculty member of the Board of Regents have a right, as a matter of law, to compel the division of the motion into two parts: (1) the vote to hire an individual, and (2) the vote to fix the amount of compensation?
IV. Is the faculty member of the Board of Regents prohibited from voting on promotions because of the fact that a promotion probably will involve an increase in salary? "
The regents' definition of faculty is certainly not the same as that referred to in KRS 164.320(7). This subsection reads in pertinent part as follows:
"(7) The non-voting faculty member shall be a teaching or research member of the faculty of his respective university or college of the rank of assistant professor or above. He shall be elected by secret ballot by all faculty members of his university or college of the rank of assistant professor or above. The faculty member shall serve for a term of three years and until his successor is elected and qualified."
It must be recognized, however, that the term "faculty" is otherwise used in KRS Chapter 164, relating to institutions of higher used in KRS Chapter 164, relating to institutions of higher education in Kentucky, and there is no specific definition to be found and also certainly no reason to believe the term is as limited as found in KRS 164.320(7). We believe a board of regents has the statutory authority to adopt such a definition of "faculty" as noted above to be used where not inconsistent with any statutory provision. See OAG 68-611, copy attached.
Thus, in answer to your first question, we are of the opinion that it is permissible to apply the definition of "faculty" as approved by the Murray State University Board of Regents in consideration of the exception of not voting on "faculty compensation" by the faculty-member regent provided for in KRS 164.289.
KRS 164.289 reads in full as follows:
"Notwithstanding any other provision of KRS Chapter 164, the faculty member of any governing board of any institution of higher education supported in whole or in part by state funds, whether or not described as nonvoting, shall have the right to vote on all matters except that of faculty compensation."
You note in your letter that it has been the practice of the Board of Regents to vote on the appointment of certain administrative officials who fall within the adopted definition of "faculty" noted above, by introducing a motion to hire "X" at a stated salary. This practice prompted your remaining questions.
As regards your second and third questions, we believe the starting point for a response is the understanding, or at least construing, of the proscription on voting on faculty compensation. In OAG 72-267, copy attached, this office felt that the intent of the General Assembly would be best carried out by following a narrow definition of the qualifying words "faculty" and "compensation." This position was summarized as follows:
"[W]e believe that the Legislature intended to give the faculty members-trustees and regents a voice in the governing of state-supported institutions of higher learning and proscribed their voting only on assigning faculty salaries. "
With this position in mind, then, we believe the faculty-member regent is absolutely entitled to vote on the appointment of faculty personnel. While we concede that nearly inextricably interwoven with "appointment" is "compensation," we are of the opinion the faculty-member regent can still vote on the matter of appointment. We must suggest that if the motion before the Board of Regents is such as spelled out in your second question, the faculty-member should request the motion be severed into two motions, one of appointment and the other of compensation. We do not believe the faculty-member regent, as a matter of law, has a right to compel such a division of a motion into two separate motions. Nevertheless, the faculty-member regent may make a motion to divide the motion into two separate motions and if this motion is adopted by majority of the body, the faculty-member regent could then vote on the appointment and refrain from voting on the matter of compensation, if the motion relating to appointment is carried.
It is our opinion the answer to your last question must be in the same vein as that stated above on the appointment/ compensation issue. We believe the faculty-member regent may vote on the issue of promotion but should have the record reflect that no vote is being cast with respect to any increase in salary which might accompany such promotion.