If Elected Officials Cared about PASSHE Students, What Would be Different? - Part 3

We have previously described the first two fiduciary duties of university governance board members according to the Association of Governing Boards (AGB).  They are the Duty of Care and the Duty of Loyalty.  In today’s blog post, we will discuss the third duty of university governance board members.¹

The Duty of Obedience

The duty of obedience refers to the board member’s obligation to advance the mission of the college or university. It also includes an expectation that board members will act in a manner that is consistent with the mission and goals of the institution. Failure of this duty can result in a loss of public confidence in the institution.  (Emphasis added.)

 
Recall that PASSHE’s current governance board members—whether serving on the Board of Governors in Harrisburg, or on one of the Councils of Trustees at the 14 PASSHE universities—are currently not required to take a fiduciary oath of office.
 
Instead, PASSHE’s governance board members currently take the following oath² of office:  “I do solemnly swear (or affirm) that I will support, obey and defend the constitution of the United States and the Constitution of this Commonwealth and that I will discharge the duties of my office with fidelity.”
 
As noted previously, the object of their fidelity is not specified, meaning that the current oath taken by PASSHE governance board members doesn’t require, or even mention, that the object of their fidelity should be the PASSHE universities and the PASSHE students who rely so heavily upon them to provide “High quality education at the lowest possible cost to the students,” as promised by Act 188 of 1982.
 

The Pennsylvania Promise

From the text³ of Act 188, we see that the statutory purpose—i.e., purpose by law—of the 14 PASSHE Universities shall be “To provide high quality education at the lowest possible cost to the students.”
 
From the Merriam-Webster dictionary, when used in law the word ‘shall’ expresses what is mandatory.

Act 188 has been amended since its initial passage, but its statutory purpose remains unchanged.  
 

Therefore

“The Pennsylvania Promise”

is

A Promise Freely-Given

By the Commonwealth of Pennsylvania

To Current and Future Students of the 14 PASSHE Universities

 
“The Pennsylvania Promise: High Quality Education at the Lowest Possible Cost to the Students.”  

Note also that the Duty of Obedience requires governance board members to “advance the mission” and to “act in a manner that is consistent with the mission and goals of the institution.”

 

The Statutory Purpose of the PASSHE Universities

According to the literal text of Act 188—the enabling legislation that created and controls the PASSHE system of 14 universities—the statutory purpose³ of the PASSHE universities is “to provide high quality education at the lowest possible cost to the students.”

 
The fiduciary Duty of Obedience requires governance board members to “advance the mission” and to “act in a manner that is consistent with the mission and goals of the institution.”
 
So a Duty of Obedience would require PASSHE’s governance board members to advance PASSHE’s statutory purpose, and to act in a manner consistent with PASSHE’s statutory purpose.  
 
But PASSHE governance board members are not required to accept the fiduciary Duty of Obedience, meaning that they are not bound—at least not by their current oath of office—to deliver the “Pennsylvania Promise” which is to provide “high quality education at the lowest possible cost to the students.”  But that fact raises the following huge question:  
 

Do PASSHE Governance Board Members Have a Duty to Obey the Law?

 
The answer to that question is undoubtedly “Yes” for many reasons, including the following:  
 
Although their current oath of office doesn’t require PASSHE governance board members to accept the fiduciary duties of Care, Loyalty and Obedience—duties routinely accepted by thousands of governance board members across America—PASSHE governance board members do take an oath to “...support, obey and defend the constitution of the United States and the Constitution of this Commonwealth.”
 
This oath is very similar to the one required of those wishing to become citizens of the United States:  “That I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.”

It is well known that the U.S. Constitution explicitly enumerates many rights of U.S. citizens; but few responsibilities of citizenship are explicitly stated—while yet understood to be implicitly required.  

See the discussion of Responsibilities under the Constitution in which the following quote⁴ appears:

“For example, the Constitution presumes lawfulness. It is a responsibility, then, to obey the law. For those who do not, there are protections, but the presumption of lawfulness is apparent.”

“A government of laws, and not of men”

                                                                                                                     John Adams
 
That PASSHE’s governance board members are obligated to obey the law, even when they have not taken an oath to accept the fiduciary Duty of Obedience, is clearly required by the U.S. Constitution—to which each PASSHE governance board member has taken a public oath to “support, obey and defend.”

That is, all 20 members of the PASSHE Board of Governors, and all 154 members spread across the 14 PASSHE Councils of Trustees, have taken a public oath of office that requires them to obey the law.

 
The PASSHE Board of Governors has since 2002 openly and shamelessly failed to live up to that oath.

To be continued.

¹ http://agb.org/knowledge-center/briefs/fiduciary-duties.
² https://www.keepandshare.com/doc/6750603/oath-of-office-pdf-37k.
³ https://www.keepandshare.com/doc/6772880/act188-pdf-405k.
⁴ http://www.usconstitution.net/consttop_resp.html.