NASHVILLE - The Tennessee Board of Regents may not be properly constituted, but its decision to hire Deputy Gov. John Morgan as the higher education system's new chancellor nonetheless is legal, according to state Attorney General Bob Cooper.
"Tennessee case law provides that in cases where a court declares that a public body such as a board or commission is improperly composed, the actions of that body prior to such a declaration are still valid under Tennessee law," according to the legal opinion publicly issued Tuesday.
The opinion says the legal principles upon which members of public bodies are considered de facto officers "derive from Tennessee case law, rather than from the language of the Board of Regents statute."
Sen. Bill Ketron, R-Murfreesboro, and Sen. Jim Tracy, R-Shelbyville, who requested the attorney general's opinion, have been critical of the board's decision - made just before selecting Morgan - to change its requirement that all candidates for the top post have a doctorate degree. Morgan does not have a Ph.D.
Ketron said he felt "compelled to request that [opinion] just to make sure everything was legal based on the way that the board was structured. Being illegal, you would ask that question."
But he said "I was kind of hoping he [Cooper) would come back the way he did to answer that everything they did was legal because of the ramifications of having to go back."
If the board was found to be acting illegally, that could have affected not just the Morgan appointment but actions such as authorization of graduation certificates, Ketron said.
Ketron and Tracy also raised questions about the board's legally constituted authority, pointing out that Democratic Gov. Phil Bredesen flaunted a state law that requires at least three members of the minority party to be among the 12 publicly appointed members of the 18-member panel.
Bredesen said he had been unaware of the requirement but has promised to fix problems. The governor himself recently said he believed the board's action was nonetheless legal.
Republicans have scheduled two days of hearings on the Regents' actions and political backgrounds next week. But Senate Speaker Ron Ramsey, R-Blountville, and Ketron and Tracy indicated they have been largely satisfied by Bredesen's decision to name three Republicans to the Regents' board.
The Regents system oversees 45 institutions that have a total student enrollment of about 190,000. Institutions include Chattanooga State and Cleveland State community colleges.