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State law: UNC Press leader can stay on despite opposition from UNC Board of Governors

[1]Conservatives on UNC BOG want to remove Prof. Eric Muller, but legal experts say they lack the authority to do so

In a high-stakes game of political poker with the UNC Board of Governors, a state statute may provide the UNC Press with a trump card.

As Policy Watch first reported last month [2], the UNC Board of Governors refused to reelect UNC law professor Eric Muller to the governing board of the UNC Press [3].

The nonprofit press was established in 1922 as the first university press in the South and one of the first in the nation. Its mission is to advance “the research, teaching, and public service missions of a great public university by publishing excellent work from leading scholars, writers, and intellectuals and by presenting that work to both academic audiences and general readers.”

Under UNC Press bylaws, the group’s board members are elected through a process in which a slate of nominees is selected by the UNC Press board and that slate is then transmitted to the UNC Board of Governors, which is charged with formally electing them. The bylaws specify that a board member may serve up to three successive five-year terms.

Muller has served two five-year terms on the UNC Press board and was unanimously reelected chairman earlier this year. During that time, he was outspoken on the legality of the UNC System’s controversial handling of the Silent Sam Confederate monument [4], as well as what he said was UNC-Chapel Hill’s failure to deal appropriately with sensitive issues of race and history.

Though UNC Press board nominated him for a third term, the UNC Board of Governors has yet to act on the nomination. Sources directly involved in the appointment process told Policy Watch that enmity from conservatives on the Board of Governors derailed Muller’s approval.

Last week, UNC System President Peter Hans said he would like to see the issue resolved “as soon as possible.” [5] Hans said he would be speaking with representatives from the UNC Press and the UNC Board of Governors’ University Governance Committee, which has refused to hold a straight up-or-down vote on Muller’s reappointment, essentially killing it in committee.

David Powers, the chairman of the committee, declined to tell Policy Watch why Muller’s reappointment would be unacceptable.

Policy Watch asked Powers if Muller is still under consideration. “I can’t really answer that question right now,” Powers said. “I don’t think there is an answer.”

[6]
UNC law professor Eric Muller

Traditionally, names put forward by the UNC Press have always been approved at the UNC Board of Governors level. But Powers said his board has no intention of acting as a “rubber stamp” for nominations.

“I don’t think anything we approve is supposed to be a rubber stamp,” Powers said. “I almost find that a little offensive. We’re not doing our job if we’re a rubber stamp.”

Powers said it’s unlikely that the BOG’s governance committee will hold an up-or-down vote. “We’d prefer not to do that,” Powers said. “We’d prefer not to vote him down. I would prefer to have a positive, affirmative vote we can move forward with.”

By refusing to vote on nominees advanced to them, the governance committee would appear to be initiating a fundamental change in the process by which board members are selected. Its confirmation role, as outlined in state statute and the UNC Press bylaws, empowers the Board of Governors to approve or reject candidates — but not select them.

Instead, the governance committee is now informally rejecting candidates without a vote or public debate, insisting that the UNC Press send additional names until they find one acceptable.

In effect, such move would allow the UNC Board of Governors to indirectly choose nominees.

That’s against the spirit of the bylaws and state statute, legal experts told Policy Watch this week. And to the extent it’s designed to keep Muller from continuing to serve, it also likely bumps up against the state law that governs nonprofits like UNC Press.

[7]
Brooks Fuller, Director of the North Carolina Open Government Coalition

“The legal issues regarding the UNC Press board seem fairly simple,” said Brooks Fuller, an attorney and director of the North Carolina Open Government Coalition.

The relevant law is North Carolina State Statute 55A-8-05, subsection d. [8]

Under that statute, Fuller said, Muller remains on the UNC Press Board of Governors until he is replaced. And he can only be replaced if the UNC Press board puts forward a nominee to replace him. If the UNC Press board declines to do that, Muller retains his position despite his term having expired.

“In general, nonprofits in North Carolina can only deviate from the state’s Nonprofit Corporation Act where the statute specifically allows,” Fuller said. “The law lays out pretty clear rules about nonprofit directors’ terms of service and the law says that a director serves until they are replaced even if their term has expired.”

“The power to recommend directors originates with the UNC Press board,” Fuller said. “And until University leadership takes public action on the recommended slate of directors, North Carolina law appears to empower Prof. Muller to continue his service.”

Chris Brook, who previously served as a judge on the state Court of Appeals and as legal director of the American Civil Liberties Union of North Carolina, agreed.

“That subsection is pretty straightforward,” Brook said. “So long as that is the applicable statute, and it is based on what I know, Mr. Muller would remain on the board.”

[9]
Attorney Chris Brook

That would appear to give the legal advantage to the UNC Press board in what threatens to become an escalating conflict. Members of the board and its supporters have already been discussing the possibility of taking the nonprofit entirely independent to prevent any political party from determining its leadership.

Muller declined to comment this week on the ongoing conflict or the state statute that could keep him on the board.

Fuller said the Board of Governors should be holding an up-or-down vote on Muller’s nomination, as statute and the bylaws intend. Beyond those rules, he said, it’s a question of good governance.

“Now more than ever, it is critical for constituent institutions of the University of North Carolina to operate openly, honestly and transparently,” Fuller said. “That means following processes outlined in the bylaws of the UNC Press and in North Carolina law for electing new directors for the UNC Press. We don’t want our public institutions governing constantly by gridlock. That’s not healthy.”

In an effort to provide a rationale for refusing to reelect Muller, Powers suggested the UNC Press board could use greater diversity. The organization publishes works on Native American history, Powers said, but its governing board has never had a member from UNC Pembroke, which was founded in 1887 as an institution for Native Americans.

“We’re going to be taking a lot of factors like that into consideration. And I hope President Hans will work with them and they’ll send us a name they’ll unanimously approve quickly.”

In a previous interview, however, Muller rejected that explanation.

“If they wanted more diversity or to see someone from UNC Pembroke on the board, that’s something I would certainly have enthusiastically supported,” Muller said. “They never communicated that to us. They never said anything like that, as far as I’m aware.”

“During my time on the board, and under my leadership, the UNC Press Board of Governors became more diverse and represented more schools than it ever has,” Muller said. “During that time we did have a Lumbee tribal member, Malinda Maynor Lowery, on the board. If they want to see greater diversity on the board, getting rid of the chair who worked for greater diversity would seem a strange way to achieve that.”

Asked if the reluctance to reappoint Muller was about politics, Powers equivocated. “That’s more of a discussion of that than I want to have,” Powers said. “It’s not that simple.”