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Two key state education boards may not have enough members to carry out their duties, and Gov. Tate Reeves, who is responsible for filling most of the vacancies, still hasn’t said when he might make the necessary appointments.
The Board of Trustees of State Institutions of Higher Learning starting Friday will have just eight members — exactly enough for a quorum. The Board of Education currently has five members — exactly enough for a quorum. This means that the state’s top education boards cannot legally meet if one member is absent or has to recuse themselves, which is a regular occurrence on both boards.
Reeves has made no public comments on when he will name appointments for the vacancies. Because he did not make the appointments before the end of the 2021 legislative session, there are questions of whether he can make the appointments without calling a special session of the Mississippi Senate.
The Constitution mandates that the Senate confirm the appointments to both boards. And legal opinions and documents from legislative committees seem to suggest that Reeves will have to call a special session to confirm his appointments or wait for the Senate to reconvene for the 2022 regular session, which starts in January.
The terms of four members of the Board of Trustees of State Institutions of Higher Learning, which oversees the state’s eight public universities, will expire on May 7, leaving the panel with just enough members to constitute a quorum under the board’s guidelines.
Reeves’ office did not respond to questions from Mississippi Today on when he might fill the four college board seats.
“The bottom line is, Friday night at 12:01, the four trustees in our class roll off the board, and our nine-year term is over,” said Ford Dye of Oxford, the former chair of the IHL Board.
It will be difficult for the IHL Board to function with only eight members. On any issue where a member recuses themselves — which occurs nearly every meeting — the board will not have enough votes to make a decision.
In addition to the issues with the 12-member IHL Board, the nine-member state Education Board has been operating with only five members. Under that panel’s guidelines, five members constitute a quorum. A meeting in November had to be canceled because of a lack of a quorum.
Two of the vacancies on the Education Board are the governor’s responsibility to fill, while Lt. Gov. Delbert Hosemann and Speaker Philip Gunn each have one seat to fill.
To further complicate matters, the term of Northern District Education Board member Karen Elam is set to expire this June. That post also is a gubernatorial appointee.
Education Board Chair Rosemary Aultman of Clinton said both she and state Superintendent of Education Carey Wright have inquired about the vacancies.
“We have not heard anything specifically other than an appointment was forthcoming,” she said of conversations with Reeves.
Aultman said Gunn also has assured her that he is working to fill his appointment.
“I’ve spoken with him (Gunn) about that, and he indicated that he was very much aware of it and he had two candidates he was looking at and would be making a decision soon … but it is encouraging that he is working on it,” Aultman said.
Leah Rupp, a spokesperson for Hosemann, said the lieutenant governor also is interviewing potential candidates for the Board of Education seat he is responsible for filling.
In March, legal experts told Mississippi Today there is a question of whether the appointees could begin serving prior to the next legislative session, which could be either a special session called by the governor or the 2022 regular session.
The attorney general, in a 1977 opinion, seemed to support the argument that for regularly scheduled vacancies, the governor must make the appointments in the session before the vacancy occurs or wait until the next session. The opinion stated when a “term is about to expire and will expire by limitation before the next session of the Senate, the governor should nominate a person to fill the vacancy,” and “if he fails to do so, he cannot make a valid appointment to fill such a vacancy in the vacation of the Senate.” If the governor tried to do so, it “would be to limit and abridge the right of the Senate to advise and consent to the appointment.”
A 2015 document compiled by the Legislature’s Performance Evaluation and Expenditure Review Committee reaches essentially the same conclusion.
The PEER report said state law “requires” that the governor make the appointment in the session before any regularly scheduled vacancy set to occur within nine months of the legislative session. But the report goes on the say that in many instances, the governor has appointed someone after the session ended and that appointee began serving prior to being considered by the Senate in the next regular session.
“This practice is in direct contravention of” state law, the PEER report concluded.
A Mississippi Today analysis of previous appointments found that former governors Phil Bryant and Haley Barbour submitted their college board appointments to the Senate in the session before the appointees’ tenures began. Former Gov. Ronnie Musgrove made some college board appointments after the session ended, and they began serving before they were confirmed by the Senate.
In 1996, former Gov. Kirk Fordice made four college board appointments who were rejected by a Senate subcommittee in the regular session prior to when their terms were scheduled to begin. Fordice, arguing that the four had not been rejected because they were not considered by the full Senate Universities and Colleges Committee, called a special session, where they were then rejected by the full committee. Fordice later called a special session prior to the start of the next regular session where four new appointees were confirmed.