At their May 23, 2024, meeting, the Nevada Board of Regents will consider a resolution to delegate their authority in litigation matters to the Chancellor. While Nevada laws permit such delegation, and several public bodies have adopted similar resolutions delegating litigation decisions to executive leadership, this proposal gives the Chancellor and the NSHE Chief General Counsel blanket authority over litigation decisions with little, if any, oversight by the Board. It only requires the Chancellor to consult with the Board Chair. There is no mandate that the two must agree. Similarly, there is no requirement to keep the other members of the Board informed. Alarmingly, the resolution states that the Chancellor would have the authority to make any decision “consistent with the advice of the Chief General Counsel.” That is, it appears to delegate real authority to the Chief General Counsel, not the Chancellor.
There is no argument that delegation is often necessary. Nevada’s Open Meeting Law makes it untenable for Regents to confer as a body on all litigation within the deadlines set by courts. Previously, the Board delegated this authority to the Chair who was charged with seeking approval from the Chancellor and the General Counsel. The new proposal, generally, reverses those roles, delegating authority to make litigation decisions “to the Chancellor, after consultation with the Board Chair and consistent with the advice of the Chief General Counsel.”
As presented, this resolution would apply to all litigation, including lawsuits initiated by NSHE on behalf of the Board, not just those where NSHE is a defendant.
The NFA recommends that Regents amend the resolution to authorize delegation ONLY when time does not allow consideration by the full Board. It should also require that the Board Chair approve decisions by the Chancellor, not just be consulted, and that the full Board be informed once a decision has been made. The Board Chair should retain the right to seek additional legal counsel and not rely solely on the advice of the NSHE Chief General Counsel. If the Board Chair disagrees with a decision of the Chancellor pertaining to litigation, the matter should automatically go before the full Board. Furthermore, NSHE should not initiate any legal action without consideration by the full Board of Regents.
Regents have the fiduciary responsibility for the Nevada System of Higher Education. A blanket delegation of authority over litigation abdicates a significant portion of that responsibility. It should not happen. Once established, the delegation of authority would be difficult to reverse. Consider the consequences of the worst possible Chancellor and General Counsel, not the current ones, having authority over litigation under any possible circumstances effectively without Board oversight.
