06/09/1992

 

UCCSN Board of Regents' Meeting Minutes
June 9-10, 1992








06-09-1992

Pages 131-139



BOARD OF REGENTS

UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA

June 9, 1992



The Board of Regents met on the above date in the Computing

Services Video Room on the University of Nevada, Reno Campus

and the University of Nevada, Las Vegas Campus, for a special

video meeting.



Members present:

In Las Vegas: Mrs. Carolyn M. Sparks, Chairman

Mrs. Shelley Berkley

Mr. Joseph M. Foley

Mrs. Dorothy S. Gallagher

Dr. Lonnie Hammargren



In Reno: Dr. Jill Derby

Dr. James Eardley

Mr. Daniel J. Klaich



Members absent: Mrs. June F. Whitley



Others present: Chancellor Mark H Dawson

President John Gwaltney, TMCC

Mr. Donald Klasic, General Counsel

Mr. Ron Sparks, Vice Chancellor

Assemblyman Bob Price

Ms. Mary Lou Moser, Secretary



Also present were Dr. John Swetnam, Vice Chairman, Faculty

Senate, UNLV and Mr. Joel Kostman, President, CSUN.



Chairman Sparks called the meeting to order at 1:40 P.M., stat-

ing the purpose of the meeting was for the Board to determine

a response to the letter it had received from Sentor John

Vergiels, Chairman, Legislative Commission. The letter is

filed in the permanent minutes.



1. Review of Legislative Commission Request



Chairman Sparks asked General Counsel Klasic to give the

Board an explanation of the legal authority of the Legis-

lative Commission and the Board on this matter.



General Counsel Klasic explained that the Legislative Com-

mission had voted to "... proceed with the inquiry into the

University of Nevada System."



General Counsel Klasic stated that this is a case of two

agencies with constitutional authority. The Legislature

has plenary authority to investigate for purposes of pro-

ducing legislation; that power is broad. In the Branhove

Case, the U. S. Supreme Court stated:



"Investigations, whether by standing or special com-

mittees, are an established part of representative

government. Legislative committees have been charged

with losing sight of their duty of disinterestedness.

In times of political passion, dishonest or vindictive

motives are readily attributed to legislative conduct

and as readily believed. Courts are not the place for

such controversies. Self-discipline and the voters

must be the ultimate reliance for discouraging or

correcting such abuses. The courts should not go

beyond the narrow confines of determining that a

committee's inquiry may fairly be deemed within its

province ...."



However, there are limitations upon the Legislative Com-

mission's authority. The Branhove Case also said: "To

find that a committee's investigation has exceeded the

bounds of legislative power it must be obvious that there

was a usurpation of functions exclusively vesting in the

judiciary or the executive ...." Although an investiga-

tion may be the function of the legislative branch, in

King vs. Board of Regents, the Nevada Supreme Court ruled

that the Board of Regents had exclusive executive control

over the administration of the State University.



General Counsel Klasic stated that if there was a challenge

to an investigation, the law would favor the Legislature

being able to investigate. But he stated there were three

areas to consider: The Legislative Commission is not the

Legislature itself, but is a quasi-executive agency, and as

such there must be standards set for an investigation. NRS

218.682 is a broad statute providing that the Legislative

Commission can set up committees to deal with problems and

Statewide issues. This particular investigation by the

Commission is very open ended; they have stated they will

investigate "anything that anyone wants to produce." That

statement is too sweeping, too broad and sets no standards

or criteria for guidance.



The second area is that of constitutional autonomy of the

Board of Regents. A member of the Legislative Commission

stated it would investigate for future legislation, for

instance to draft legislation to correct relationships

between the Legislature and the Board of Regents, or for

establishing policy controls for the System. There could

be a possible infringement of the autonomy of the Board.



The third area is that the matter could be turned over to

the Grand Jury, or facts could simply be released to the

public. That could infringe the functions of the judicial

or executive branches.



In summary, General Counsel Klasic stated that the legis-

lative body does have a wide range of authority to investi-

gate; the Board could challenge that authority on the basis

the investigation is vague and over-broad, infringement of

the Board's autonomy could be questioned, or the matter

could be referred to the Grand Jury and the courts for

consideration, thereby infringing judicial functions. Gen-

eral Counsel Klasic cautioned that it would be an uphill

battle if a challenge were issued.



Dr. Eardley asked if it was known how extensively the Com-

mission wants to proceed and if there are parameters.

General Counsel Klasic stated that it is not known, that

in the transcript of the Commission meeting there was a

reference to "... whatever material would be brought to

us". Dr. Eardley then asked how the Board could respond

if it does not know the scope of the investigation. Gen-

eral Counsel Klasic stated that a member of the Legisla-

tive Commission had initially referred to Jerry Tarkanian

and his resignation. Chairman Sparks stated that it was

her understanding that the Commission's original recom-

mendation for investigation was with the basketball pro-

gram; however, since that time, they have expanded that

to all issues connected with UNLV, which is a broad scope.



Dr. Hammargren stated that he had called for an independent

investigation last March, and that 5 Regents were in favor

of an investigation, but in March only 4 voted in favor.

The Clark County Grand Jury voted 17-0 in favor of an in-

vestigation. All Southern Legislators voted in favor of

an investigation, so he felt it was quite clear that there

should be one.



Dr. Hammargren moved to cooperate fully with the Legislative

Commission in its investigation. Mrs. Berkley seconded.



Chairman Sparks explained that there were not 5 votes (from

the Board) in favor of an investigation. Dr. Hammargren

stated that 5 members had spoken at the meeting for an in-

dependent investigation; that 4 wanted the Legislature to

investigate and 1 wanted the investigation by the Attorney

General.



Mr. Klaich stated that Dr. Hammargren's motion, as framed,

made it difficult to vote. He questioned where the as-

sumption had come from that the Board of Regents was not

going to cooperate fully. He stated that he had no prob-

lem with an investigation into the resignation of the

Coach, the acceptance of the resignation and the events

subsequent to that, but the Board has received an open-

ended request from Mr. Vergiels. He suggested that the

Board provide Mr. Vergiels and the Committee with a full

report about the resignation, the acceptance of that resig-

nation and the events subsequent to that incident and then

let the Commission pose specific questions to the Board,

should there be questions, and the Board could then re-

spond. He added that he did not feel it was prudent to

just state that the Board would "cooperate fully".



Mrs. Berkley stated that she felt it was less important to

argue the constitutional point, but that she felt the Board

needs to address the public on the matter. She added that

the Board cannot dictate to the Legislature about what it

wants to investigate. She pledged full cooperation of the

Board if the goal is to get to the truth. She suggested a

short letter be sent pledging full cooperation and then

await a response. She reminded the Board that the Legis-

lature provides the funds for the operation of the System,

and in order to fulfill the Board's responsibility to

students, it needs the funding from the Legislature, and

the Board should be mending fences with the Legislature.



Mr. Foley stated he disagreed with Mrs. Berkley's statement

that the Board cannot refuse Mr. Vergiels' request because

refusing would jeopardize all appropriations (for UCCSN)

in the future. He added, that even the Tarkanian people

were upset with Mr. Vergiels' handling of the matter be-

cause they feel Mr. Vergiels has a conflict of interest in

that he is an employee of UNLV. Mr. Foley stated that he

agreed with Mr. Klaich. He explained that the resignation

(Mr. Tarkanian's) came about with the involvment of "Perry

the Fixer". Mr. Tarkanian resigned, then attempted to with-

draw that resignation. He stated he felt the Board should

supply a paper, in detail, about the events before and after

the resignation.



Mr. Klaich suggested that the Board not pledge its coopera-

tion, but that it should start cooperating right now. He

added that he deeply resented any implication of Mrs.

Berkley's previous comments concerning the actions or

votes of the Board in getting to the truth of this matter.

He continued that other members have not done this, al-

though she may have.



Mrs. Gallagher stated that if, in Mr. Vergiels' letter, he

had not stated, "... and other matters concerning the Uni-

versity of Nevada, Las Vegas", she would be agreeable to

the motion; that she agreed that the UNLV basketball pro-

gram and the Tarkanian matter might be a matter for inves-

tigation. She stated she felt the investigation would be

setting a precedent and that in the future the Legislature

could decide it wanted to investigate officers, programs,

etc., where it did not have the expertise the Board would

have, and that would be a challenge to the Board. She

stated she was in favor of releasing everything the Board

has on the Tarkanian and basetball program matter and let

the Legislators see if they are finding what they think

is there. She stressed that the Board has not covered

up anything; that there may have been some things left

unsaid, and the investigation may prove it had been left

unsaid.



General Counsel Klasic interjected that in the Board "lay-

ing everything out", it should be aware there was currently

litigation in process with an Assistant Coach, and there

was a threat of the Coach filing a law suit as well. Some

of this material may be privileged testamentary information.

Under the Open Meeting Law, there may be some information

for which it would be required that the Board would have

to vote for its release, and it would also have to obtain

permission from all persons discussed in a closed meeting

before that information could be released.



Mrs. Gallagher stated she would not want to jeoparidize any

litigation, and questioned whether executive session infor-

mation could be deleted on those who might refuse its re-

lease. General Counsel Klasic stated he felt it could be

done.



Dr. Derby stated she was in favor of the motion because of

the perception by the public and the abuse the Board has

taken in voting against an independent investigation. She

stated that she felt a paper from the Board would not be

believed by the Legislature; that limiting cooperation is

not helpful; and that it is important to stress willingness

to cooperate.



Dr. Eardley stated that he felt cooperation with the Legis-

lature is best, but he would expect the Legislature to

clearly tell the Board what it wants. He stated that as an

elected official he was here for the protection of the

Constitution and the students. He added that attention has

been directed for one full year on this particular program

and that he felt it was the President's problem. He stated

he would "balk" at the Legislature evaluating the Board's

performance; that this was very questionable. He added

that he was not against an investigation, but that he did

not like the implication that the Board is trying to "stone-

wall" and is offended by that.



Chairman Sparks stated that this request by the Legislative

Commission is the only one the Board has received for in-

formation on the Tarkanian matter; but she felt the Commis-

sion's motion was as vague as the letter from the Chairman.

She stated she would be comfortable releasing the executive

session information if the intent is to get to the truth of

the resignation. She suggested the Board direct the Chan-

cellor to provide details of the resignation and related

matters. She expressed concern that the Legislature had

not provided funds for the investigation, adding that the

Board had spent a year in its deliberations on the matter.



Mrs. Berkley stated she did not think the Legislature was

asking permission, that the letter requests cooperation,

and she stressed that the Board would be "jumping the gun"

if it gave the Commission information now. She suggested

a simple letter stating full cooperation and then to wait

to hear from the Legislature. Chairman Sparks stated she

felt the letter does ask for information regarding the

resignation of the Coach and that it was not necessary to

put it off any longer since the Board had the information.



Mr. Klaich stated he would not be in favor of mentioning

the constitutional authority of the Board; that it would

serve no purpose. Additionally, he stated he did not mean

to limit the scope of the Legislature's investigation; that

the Board cannot tell the Legislature what to investigate.

However, he stated that the Board could provide information

on the specific item in the letter, then await further

questions from them.



Mr. Klaich moved to amend the motion to add ... by directing

the Chancellor to collate and deliver to the Committee such

information concerning the resignation of Coach Tarkanian

and events subsequent to that resignation; that the Board

does not intend to imply that it is limiting its coopera-

tion and that if there are other questions, the Legislative

Commission should get back to us. Mr. Foley seconded.



Dr. Derby stated she felt this would limit cooperation; that

she liked the simple motion. Mrs. Berkley questioned why

the Board should not cooperate fully.



General Counsel Klasic stated that the letter from Mr.

Vergiels was not an accurate rendition of the motion

passed by the Commission. The motion was to "... proceed

with an inquiry into the University of Nevada System" and

Mr. Vergiels' letter is not as broad. Mr. Klaich stated

that according to the transcript a letter had been read

into the the transcript, one that had been prepared before

its Commission's meeting, so that the members knew what

was in the letter. Mrs. Gallagher related that the letter

sent to the Board was different from either the letter

read into the transcript or the motion. Chairman Sparks

stated that the Board can only respond to the letter it

had received.



Assemblyman Bob Price asked to speak to the Board. He

stated he had been at the Legislative Commission meeting

and related that there was a great deal of testimony that

went beyond the resignation of the Coach, that it had in-

cluded discussion on the UNLV Foundation and the relation-

ships of the Foundation, and that is why the motion was

much broader. He urged a simple motion pledging Board

cooperation. He added that the Legislature can impanel a

State Grand Jury. Mr. Price asked that the Board reconsider

the amendment.



Mrs. Gallagher asked why the Commission would not have want-

ed to sit down with the Board of Regents and discuss this

situation. The Commission must also work under the Open

Meeting Law. Mr. Price stated he was surprised that Mr.

Foley was the only Regent present at their meeting.



Chairman Sparks agreed with the amendment and added that

she was concerned that with the simple motion the meetings

would go on and on.



Mr. Klaich withdrew the amendment, and Mr. Foley withdrew

the second, and Mr. Klaich presented another amendment,

seconded by Mr. Foley.



Mr. Klaich moved to reply as follows to the action of the

Legislative Commission as stated in the letter to Chairman

Sparks from Senator John Vergiels dated June 1, 1992:



"We agree to accept your invitation to cooperate with

the Legislative Commission. We will begin that cooper-

ation by directing the Chancellor to compile and forward

information in our possession regarding the resignation

of Jerry Tarkanian, the acceptance of that resignation

and related events subsequent to the resignation. If

additional information is desired, please contact the

Chancellor at your convenience." Mr. Foley seconded.



Motion carried on roll call vote:



Aye: Regents Eardley, Foley, Gallagher, Klaich, Sparks

Nay: Regents Berkley, Derby, Hammargren

Absent: Regent Whitley



Chairman Sparks then called for the vote on the motion as

amended. Mrs. Berkley stated she was concerned that a "yes"

vote would limit Board cooperation, and asked whether this

was "stonewalling". She asked to be reassured that the

Board would not withhold information, and wanted a clari-

fication as to what would be provided. Mr. Klaich stated

that it meant the Board would cooperate with the Commission,

that the Board was not limiting them in any way. Chairman

Sparks stated that a draft of the reply would be facsimilied

to the members of the Board. Mrs. Berkley asked if infor-

mation on the Foundations would be sent to the Commission,

with Mr. Foley replying that the Commission had not yet

asked for that information. Mr. Klaich explained that any

response to the Legislative Commission is a public document,

available to the media and the public. He stated that the

motion puts forth, in a concise response, what this scenario

is, that in so doing, it could not be picked apart by the

media, and that if the Commission wants something else, it

can make such a request.



Upon roll call vote, the motion as amended carried:



Yea: Regents Derby, Eardley, Foley, Gallagher,

Hammargren, Klaich, Sparks

Nay: Regent Berkley



Mrs. Berkley then changed her vote to "yea".



2. New Business



A. Regents:



None.



B. Public:



Mrs. Jackie Mc Call Singer stated that questions re-

garding the Foundations had been brought to the Board

of Regents at different times in different areas but

because of time restraints her questions had not been

answered. She stated the Legislative Commission had

"called us in" to testify before them at their recent

meeting. She added that in the beginning the Board of

Regents had given her more attention, then had stopped.



Chairman Sparks explained that if Mrs. Mc Call wished a

lengthy discussion, that topic should be made an agenda

item. Mr. Foley asked that Mrs. Singer write a letter

to the Chancellor giving specific details so the Board

could answer. Mrs. Singer agreed that she would do

that. She denied that she was a "Tarkanian radical".



Dr. Hammargren questioned whether there would be an

item at the June meeting regarding the Foundations,

with the Chancellor replying that the Board had reqest-

ed General Counsel Klasic to conduct a survey of all

the institutions on gifts, and that a Chancellor's

Committee was being appointed to oversee the survey.

When the survey is completed, it will be presented to

the Board. The Chancellor noted that General Counsel

Klasic set a September 1, 1992 deadline for this in-

formation. Mrs. Mc Call stated she would be willing

to wait until September.



Assemblyman Price thanked the Board for its cooperation.



The meeting adjourned at 3:00 P.M.



Mary Lou Moser

Secretary of the Board

06-09-1992