ACCEPTED 03-15-00783-CV 11227410 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/20/2016 12:35:05 PM JEFFREY D. KYLE CLERK
No. 03-15-00783-CV
RECEIVED IN 3rd COURT OF APPEALS In the Court of Appeals for the Third Judicial District of Texas AUSTIN, TEXAS Austin, Texas 6/20/2016 12:35:05 PM JEFFREY D. KYLE Clerk WALLACE L. HALL, JR., in his official capacity as a Regent for the University of Texas System,
Appellant
v. WILLIAM H. MCRAVEN, in his official capacity as Chancellor for the University of Texas System,
Appellee
On Appeal from the 200th Judicial District Court of Travis County, Texas, Hon. Scott Jenkins, Presiding Trial Court Case No. D-1-GN-15-002473
BRIEF OF THE ASSOCIATION OF GOVERNING BOARDS OF UNIVERSITIES AND COLLEGES AS AMICUS CURIAE SUPPORTING APPELLEE WILLIAM H. MCRA VEN
MARTIN MICHAELSON BRUCE D. OAKLEY AMY FOLSOM KETT State Bar No. 15156900 HOGAN LOVELLS US LLP HEAVEN C. CHEE Columbia Square State Bar. No. 24087290 555 Thirteenth St., N.W. HOGAN LOVELLS US LLP Washington, D.C. 20004-1109 700 Louisiana Street, Suite 4300 Telephone: (202) 637-5600 Houston, TX 77002 Facsimile: (202) 637-5910 Telephone: (713) 632-1400 martin. michaelson@hoganlovells. com Facsimile: (713) 632-1401 amy. kett@hoganlovells. com bruce. oakley@hoganlovells. com heaven. chee@hoganlovells. com
Counsel for Amicus Curiae the Association of Dated: June 20, 2016 Governing Boards of Universities and Colleges IDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38.1(a), the following is a
complete list to the best of Amicus Curiae the Association of Governing Boards of
Universities and Colleges' knowledge of all parties to the judgment being appealed
from and of the names and addresses of all trial and appellate counsel.
Parties to the Trial Court Judgment:
Plaintiff: Wallace L. Hall, Jr.
Defendant: William H. McRaven
Trial and Appellate Counsel:
For Plaintiff-Appellant Wallace L. Hall, Jr.
Joseph R. Knight State Bar No. 11601275 EWELL, BROWN, BLANKE & KNIGHT LLP 111 Congress Avenue, 28th Floor Austin, Texas 78701 Telephone: (512) 770-4010 Facsimile: (512) 684-7681 jknight@ebbklaw. com
For Defendant-Appellee William H. McRaven
Patton G. Lochridge State Bar No. 12458500 Richard D. Milvenan State Bar No. 14171800 Kayla Carrick State Bar No. 24087264 MCGINNIS, LOCHRIDGE & KILGORE 600 Congress Ave., Suite 2100 Austin, Texas 78701 Telephone: (512) 495-6005 Facsimile: (512) 505-6305 plochridge@mcginnislaw. com rmilvenan@mcginnislaw.com kcarrick@mcginnis law. com
Wallace B. Jefferson State Bar No. 00000019 Amy Warr State Bar No. 00795708 ALEXANDER DUBOSE JEFFERSON & TOWNSEND, LLP 515 Congress Ave., Suite 2530 Austin, Texas 78701-3562 Telephone: (512) 482-9300 Facsimile: (512) 482-9303 wjefferson@adjtlaw. com awarr@adjtlaw. com
For Amicus Curiae Ken Paxton, Supporting Appellant:
Ken Paxton Jeffrey C. Mateer James E. Davis Nichole Bunker-Henderson Kimberly L. Fuchs State Bar No. 24044140 OFFICE OF THE ATTORNEY GENERAL OF TEXAS P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 475-4195 Facsimile: (512) 320-0167
11 For Amici Curiae Alex M. Cranberg, Brenda Pejovich, Charles Miller, and Wm. Eugene Powell, Supporting Appellant:
Jeremy C. Martin MALOUF & NOCKELS LLP 3811 Turtle Creek Blvd., Suite 800 Dallas, Texas 75219 Telephone: (214) 969-7373 Facsimile: (214) 969-7648
For Amicus Curiae the Association of Governing Boards of Universities and Colleges, Supporting Appellee:
Bruce D. Oakley State Bar No. 15156900 Heaven C. Chee State Bar No. 24087290 HOGAN LOVELLS US LLP 700 Louisiana Street, Suite 4300 Houston, TX 77002 Telephone: (713) 632-1400 Facsimile: (202) 637-5910 bruce.oakley@hoganlovells.com heaven. chee@hoganlovells. com
Martin Michaelson Amy Folsom Kett HOGAN LOVELLS US LLP Columbia Square 555 Thirteenth St., N.W. Washington, D.C. 20004-1109 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 martin. michaelson@hoganlovells. com amy. kett@hoganlovells. com
111 TABLE OF CONTENTS
Identity of Parties and Counsel .................................................................................. i
Table of Contents ..................................................................................................... iv
Index of Authorities ................................................................................................... v
Interest of Amicus Curiae and Rule 11 (c) Disclosure ............................................. vi
Statement of the Case .............................................................................................. vii
Issue Addressed by Amicus Curiae ......................................................................... vii
Statement of Facts ..................................................................................................... 2
Summary of Argument .............................................................................................. 2
Argument ................................................................................................................... 3
I. THE FIDUCIARY DUTY OWED BY A UNIVERSITY GOVERNING BOARD TO THE INSTITUTION IT SERVES IMPLICITLY LIMITS INDIVIDUAL TRUSTEES' ABILITY TO DEMAND INFORMATION FROM UNIVERSITY OFFICIALS ............... 3
II. REGENT HALL'S CLAIMED UNLIMITED RIGHT OF ACCESS TO U.T. SYSTEM FILES CONTRAVENES THE CLEAR PURPOSE OF THE BOARD OF REGENTS' ENABLING STATUTE AND RULES, WHICH IS TO FACILITATE PROFICIENT GOVERNANCE ..................................................................... 4
III. REGENT HALL IS NOT ENTITLED TO THE INFORMATION HE SEEKS ............................................................................................................. 6
Prayer ......................................................................................................................... 8
Certificate of Compliance ......................................................................................... 9
Certificate of Service ................................................................................................. 9
lV INDEX OF AUTHORITIES
Page(s)
CASE
Citizens Bank ofBryan v. First State Bank, Hearne, 580 S.W.2d 344 (Tex. 1979) ........................................................................................................... 5
STATUTES
TEX. EDUC. CODE§ 65.16(b), (c) ............................................................................. 5
TEX. Gov'T CODE § 311.023(1 ), (5) .......................................................................... 6
RULES
Board of Regents' Rule 10101, § 3.1 ........................................................................ 4
Board of Regents' Rule 10101, § 3.5 ........................................................................ 5
OTHER AUTHORITIES
Association of Governing Boards of Universities and Colleges, A GB Board ofDirectors ' Statement on the Fiduciary Duties of Governing Board Members (20 15) ...................................................................... 3
v INTEREST OF AMICUS CURIAE AND RULE ll(C) DISCLOSURE
Amicus Curiae the Association of Governing Boards of Universities and
Colleges ("AGB"), founded in 1921, is the premier national organization centered
on governance in higher education. Its members are some 1,300 boards of 1,900
colleges, universities, and institutionally-affiliated foundations. Through its
members, AGB serves more than 40,000 representatives of higher education
institutions, including trustees and regents, presidents and chancellors, senior-level
administrators, and college and university board professional staff. AGB's mission
is to strengthen, protect, and advocate on behalf of trusteeship that advances higher
education. AGB has a particular interest in presenting its views in this case
because the case involves an issue of substantial importance to college and
university governance in this nation. In addition, AGB notes that Appellant
Wallace L. Hall, Jr. ("Regent Hall") has attached to his reply brief an AGB
publication that is intended to educate board members about their fiduciary duties
and how to translate their fulfillment of those duties into effective board conduct
and oversight, from which he quotes one sentence. See Reply Brief of Appellant at
9 & Tab C. By so doing, Regent Hall may give this Comi to believe that AGB
supports his position, which AGB does not.
Pursuant to Texas Rule of Appellate Procedure 11 (c), AGB represents that it
is paying the fee for preparation of this brief.
VI STATEMENT OF THE CASE
AGB adopts Appellee William H. McRaven's ("Chancellor McRaven's")
statement of the case. See Br. of Appellee at xii.
ISSUE ADDRESSED BY AMICUS CURIAE
Whether an individual member of a university governing board has an
unlimited right of access to all information or documents created or maintained by
the institution.
Vll No. 03-15-00783-CV
In the Court of Appeals for the Third Judicial District of Texas Austin, Texas
WALLACE L. HALL, JR., in his official capacity as a Regent for the University of Texas System,
Appellant v. WILLIAM H. MCRA VEN, in his official capacity as Chancellor for the University of Texas System,
On Appeal from the 200th Judicial District Court of Travis County, Texas, Hon. Scott Jenkins, Presiding Trial Court Case No. D-1-GN-15-0024 73
BRIEF OF THE ASSOCIATION OF GOVERNING BOARDS OF UNIVERSITIES AND COLLEGES AS AMICUS CURIAE SUPPORTING APPELLEE WILLIAM H. MCRA VEN
TO THE HONORABLE THIRD COURT OF APPEALS:
The limitless right of access that Regent Hall claims to information
maintained by the University of Texas System ("U.T. System") is irreconcilable
with the fiduciary principles on which he bases the asserted right, and it
contravenes the manifest purpose of the Board of Regents' enabling statute and rules intended to foster proficient governance. This Court should reject Regent
Hall's untenable position and affirm the trial court judgment granting Chancellor
McRaven' s plea to the jurisdiction.
STATEMENT OF FACTS
AGB adopts Chancellor McRaven's statement of facts. See Br. of Appellee
at 2-10.
SUMMARY OF ARGUMENT
Individual university trustees do not have an unlimited right to all
information created or maintained by the institution. Trustees must be able to
inquire about matters relevant to the governing board's policy-making role. But
the board as a whole, and not any individual member, holds legal authority to
act. An information request, as here, can be so excessive that it amounts to
micromanagement, or even harassment, of the officials charged with administering
the university's affairs. Conflation of the trustee and administrative roles severely
undermines administrative authority and improperly places the trustee in the role of
prosecutor or grand jury. And a request by a single member in opposition to the
expressed will of the board distracts the board from fulfilling its fiduciary duties to
The exact line where an information request becomes excessive need not be
drawn to conclude that it is transgressed in this case by Regent Hall's demand for
2 hundreds of thousands of pages of documents contained in a third-party
investigative file related to a now-superseded University policy, and as to which
the U.T. System has bona fide student privacy concerns. Construing Texas law to
afford Regent Hall unlimited access to this and any other information he asks for
simply because he is a regent is manifestly contrary to the objective of the Board of
Regents' authorizing statute and rules, which is to facilitate proficient governance.
ARGUMENT
I. THE FIDUCIARY DUTY OWED BY A UNIVERSITY GOVERNING BOARD TO THE INSTITUTION IT SERVES IMPLICITLY LIMITS INDIVIDUAL TRUSTEES' ABILITY TO DEMAND INFOR- MATION FROM UNIVERSITY OFFICIALS.
Regent Hall roots his purported right of unlimited access to the U.T.
System's files in the fiduciary duties that he owes the U.T. System as a regent. See,
e.g., Br. of Appellant at 21; Reply Br. of Appellant at 9. This is incorrect.
An individual trustee has both a right and a duty to inquire into matters over
which the trustee has policy-making oversight. But the trustee's exercise of his or
her fiduciary role requires "careful attention to [a] balancing of interests." AGB,
AGB Board of Directors' Statement on the Fiduciary Duties of Governing Board
Members at 3 (2015) (attached to Reply Br. of Appellant at Tab C). University
board members "must understand that while they hold fiduciary duties individually,
they act collectively as a board." !d.
3 An individual trustee's information request can be so excessive or obtrusive
as to amount to self-aggrandizement, not stewardship. Consider, for example, a
trustee's insistence on being copied on all communications to and from a
university president's office, or a demand for the complete files that relate to every
decision a chancellor makes. Such second-guessing of university executives'
judgment confuses the roles of trustee and administrator, undermines
administrative authority, and hobbles university officials in their ability to carry
out their duties.
So, too, information requests pursued in disregard of the expressed will of
the board as a whole subvert the board's ability to perform its oversight
responsibilities. Controversies over the scope of an individual trustee's entitlement
to sensitive information distract from the board's strategic initiatives and, as this
case demonstrates, can lead to protracted and costly litigation. The law must
impose reasonable limits on the conduct of individual trustees to prevent overreach.
II. REGENT HALL'S CLAIMED UNLIMITED RIGHT OF ACCESS TO U.T. SYSTEM FILES CONTRAVENES THE CLEAR PURPOSE OF THE BOARD OF REGENTS' ENABLING STATUTE AND RULES, WHICH IS TO FACILITATE PROFICIENT GOVERNANCE.
Regent Hall also premises his asserted unlimited right of access on Board of
Regents' Rule 10101, § 3.1 ("Members of the Board of Regents are to be provided
access to such information as will enable them to fulfill their duties and
4 responsibilities as Regents of the U.T. System."). But the rule will not bear the
weight of his inflexible interpretation.
The clear objective of the Board of Regents' Rules, and of the Board of
Regents' enabling statute, is to ensure sound governance, including due
recognition of the respective policy-making and managerial roles assigned to the
Board and the U.T. System administration. See, e.g., TEX. Eouc. CODE§ 65.16(b),
(c) (requiring Board of Regents to "appoint a chief executive officer" who,
"[s]ubject to the power and authority of the board, ... is responsible for the general
management of the university system within the policies of the board"); Board of
Regents' Rule 10101, § 3.5 ("Members of the Board will at all times respect the
role of the Chancellor as the chief executive officer of the U.T. System .... ").
Regent Hall's insistence that an individual regent has an absolute unlimited
right to inspect the Chancellor's files cannot be squared with this objective because,
as explained above, unreasonable information requests impede both the
administration and the Board in fulfilling their respective duties. Because it is at
odds with the manifest purpose of the statute and rules, under settled canons of
statutory construction, Regent Hall's interpretation cannot stand. See, e.g.,
Citizens Bank of Bryan v. First State Bank, Hearne, 580 S.W.2d 344, 348 (Tex.
1979) ("It is recognized that a statute is to be construed with reference to its
manifest object, and if the language is susceptible of two constructions, one of
5 which will carry out and the other defeat the manifest object, it should receive the
former construction."). See also TEX. Gov'T CODE § 311.023(1), (5) ("In
construing a statute, whether or not the statute is considered ambiguous on its face,
a court may consider among other matters the ... object to be attained" and "the
consequences of a particular construction") .
III. REGENT HALL IS NOT ENTITLED TO THE INFORMATION HE SEEKS.
The Court need not in this case definitively draw the precise line at which an
individual trustee's information request offends principles of sound governance in
order to conclude that the line has been crossed here. This is not Regent Hall's
first excessive document request. He has never articulated a specific or legitimate
need to view the hundreds of thousands of pages of documents he now demands to
see, other than his conclusory speculation that the independent investigator's file
"may" contain evidence of "admissions irregularities or illegalities that are not
fully documented" in the investigator's public report. Reply Br. of Appellant at
22-23.
But unsupported hunches about potential improprieties cannot be the
standard for access to the Chancellor's files, or else there are no constraints at all
on an individual trustee's power perpetually to harass university officials carrying
out their duties in good faith. What is more, the investigative file Regent Hall now
6 wants to reopen relates to events that occurred several years ago, under a different
administration, and an admissions policy that has since been amended to remedy
the very defects the investigation identified. For these reasons, and because the
U.T. System is appropriately concerned to protect personally identifiable student
information, Regent Hall cannot meet his high burden of showing that he is
entitled to the information he seeks.
Recognition of reasonable limits on an individual trustee's right to inspect
university documents contrary to the expressed will of the board and
administration does not signify that a trustee lacks recourse when faced with
alleged wrongdoing by fellow board members or administrators who oppose his
request. For instance, the trustee is free to bring to law enforcement authorities a
belief that illegality occurred. What the law does not, and should not, permit are
information requests amounting to fishing expeditions that prevent the board and
university officials from fulfilling their statutorily mandated responsibilities.
7 PRAYER
For the foregoing reasons, this Court should reject Regent Hall's claim to an
unlimited right of access to U.T. System documents and affirm the judgment of the
trial court.
Dated: June 20, 2016
Respectfully submitted,
By: Is/ Bruce D. Oakley
MARTIN MICHAELSON BRUCE D. OAKLEY AMY FOLSOM KETT State Bar No. 15156900 HOGAN LOVELLS US LLP HEAVEN C. CHEE Columbia Square State Bar. No. 24087290 555 Thirteenth St., N.W. HOGAN LOVELLS US LLP Washington, D.C. 20004-1109 700 Louisiana Street, Suite 4300 Telephone: (202) 637-5600 Houston, TX 77002 Facsimile: (202) 637-5910 Telephone: (713) 632-1400 martin. michaelson@hoganlovells. com Facsimile: (713) 632-1401 amy. kett@hoganlovells. com bruce. oakley@hoganlovells. com heaven. chee@hoganlovells. com
Counsel for Amicus Curiae the Association of Dated: June 20,2016 Governing Boards of Universities and Colleges
8 CERTIFICATE OF COMPLIANCE
I certify that the foregoing Brief of the Association of Governing Boards of
Universities and Colleges as Amicus Curiae Supporting Appellee William H.
McRaven complies with Tex. R. App. P. 9.4(i), because the relevant portions of the
brief contain 1,599 words, as counted by Microsoft Word 2010.
Is/ Bruce D. Oakley Bruce D. Oakley
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Brief of the
Association of Governing Boards of Universities and Colleges as Amicus Curiae
Supporting Appellee William H. McRaven was served on June 20, 2016 on the
following attorneys of record via e-service in accordance with the Texas Rules of
Appellate Procedure:
Joseph R. Knight State Bar No. 11601275 EWELL, BROWN, BLANKE & KNIGHT LLP 111 Congress Avenue, 28th Floor Austin, Texas 78701 Telephone: (512) 770-4010 Facsimile: (512) 684-7681 j knight@ebbklaw. com
9 Patton G. Lochridge State Bar No. 12458500 Richard D. Milvenan State Bar No. 14171800 Kayla Carrick State Bar No. 24087264 MCGINNIS, LOCHRIDGE & KILGORE 600 Congress Ave., Suite 2100 Austin, Texas 78701 Telephone: (512) 495-6005 Facsimile: (512) 505-6305 plochridge@mcginnislaw. com rmilvenan@mcginnislaw.com kcarrick@mcginnislaw. com