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Measure 3 holds many questions for North Dakota: Voters to decide on proposal to overhaul higher ed governance

The highly debated restructuring of North Dakota's higher education governance system will be placed in the hands of voters this November after years of tension between lawmakers and the State Board of Higher Education.

The highly debated restructuring of North Dakota’s higher education governance system will be placed in the hands of voters this November after years of tension between lawmakers and the State Board of Higher Education.
A proposed constitutional amendment, Measure 3, would eliminate the existing part-time, eight-member board and replace it with a paid, full-time three-person commission.
Both legislators and SBHE members agree Measure 3 was put on the ballot as a result of long-strained relations between the two groups.
“We made a policy decision that we needed to have full-time leadership for higher education and not a group that meets once a month,” said Sen. David Hogue, R-Minot, who carried the bill during the 2013 Legislature to put the amendment on the ballot. “That was the overarching policy decision.”
This comes after legislators pushed for the buyout of former Chancellor Hamid Shirvani last year in light of allegations of open meeting violations and friction between the chancellor and campus leaders. More recently, legislative staff investigated whether the board’s purchase of a struggling research facility at UND was legal and scrutinized putting money into a Bismarck nursing school run by Sanford Health.
In fact, the board has a storied history of making headlines.
Former Gov. William “Wild Bill” Langer tried to fire North Dakota Agricultural College employees in the 1930s, which led to the state constitution’s current definition of the SBHE in 1938.
Decades later in 1997, the Legislature overturned several constitutional measures that would have eliminated the state board. When possible campus closures were discussed a year later, voters decided the state should keep its 11 public universities.
Today, some worry Measure 3 could give the government too much power to meddle in higher education affairs, but Sen. Tony Grindberg, a Fargo Republican and co-sponsor for Measure 3, said these issues are outdated because everyone simply wants what is best for students in North Dakota.
“If a renegade legislator or governor was to come along in the future, how long would it take to be headlines?” he said. “The reality of anybody taking any kind of political risk in this day and age is an invalid argument.”
Different views
Measure 3 proposes a paid, full-time commission with an advisory board consisting of at least one faculty member and a student representative.
SBHE board chairwoman Kirsten Diederich said Measure 3 came about partially because of a lack of communication, which she said she would like to improve upon.
“I do feel like they have been frustrated with us and I don’t know if it is a power struggle or they don’t approve of what we’ve been doing in higher education, but when I look, I see very successful institutions,” she said.
Diederich also said she worries a paid commission could make decisions based on “keeping their jobs.”
“I think you need to make it very clear that the eight members are servant leaders,” she said. “We don’t get paid to do this. We get compensated for mileage and things of that nature, but the three members - their livelihood is going to be dependent on keeping that job.”
Sen. Tim Flakoll, a proponent of Measure 3 and a Fargo Republican, said the measure is all about changing with the needs of higher education in North Dakota. He pointed out the constitution’s definition of each university, for example, UND as a “school of mines,” is outdated.
“If you look at their original core purpose of each university in the constitution, they wouldn’t be what they are today if we had not allowed them to evolve,” he said.
Murray Sagsveen, the North Dakota University System’s chief of staff and ethics officer, said the current board is not legally supposed to take sides and can only convey “factual information” when asked, but most of the board’s comments have revolved around concern for losing accreditation.
This comes after the Higher Learning Commission released a report on Sept. 3 saying “While the team has not identified any provision of Measure 3 that, on its face, violates current HLC accreditation standards or assumed practices, the team is concerned that there are many details related to the implementation of the measure that, if not handled properly, could place the system’s accreditation status at risk.”
But in response to an inquiry from Flakoll, Assistant Legislative Budget Analyst and Auditor Brady Larson sent an email writing he was “unable to find any instances of accreditation being lost due to governance structure changes.”
“We also contacted representatives of the National Conference of State Legislatures regarding this question,” Larson wrote. “They were unaware of any state that has lost higher education accreditation due to a change in governance structure.”
Big changes
While there are many similarities between the existing form of higher education governance and Measure 3, there are also major differences.
Measure 3 makes it clear the three commissioners would be equal to each other, unlike the current system of having a chancellor and a board.
“By law, this position is not a chancellor,” Interim Chancellor Larry Skogen said of his position. “By law, this position is the Commissioner of Higher Education. Measure 3 is saying the commissioner of higher education will not be one person, rather, we will have three commissioners of higher education.”
Hogue, a supporter of Measure 3, said this “eliminates a redundant level of leadership,” but Skogen said he feels the position of chancellor has great value.
Another big difference would be the lack of a voting student member on the commission, but that’s where Measure 3’s “advisory board” comes into play.
The measure does not say how or through what channels an advisory board would be appointed, but simply states the “legislative assembly may provide for the appointment of an advisory board that includes a faculty and student representative.”
UND Student Senate President Tanner Franklin said representation isn’t a huge issue for students he has spoken with because the voting student member of the SBHE rarely acts as the swing vote for the group.
Flakoll said the measure’s ambiguity means that students could potentially be even more involved depending on the enacting legislation.
The details
The current board is appointed by the governor and selected from a list of at least three nominees agreed on by a five-member committee: the speaker of the House of Representatives, the president pro tempore of the North Dakota Senate, the superintendent of public instruction, a North Dakota Education Association representative and the chief justice of the North Dakota Supreme Court.
The new commission would be appointed in the same way, but the state Education Association isn’t named specifically and is instead replaced with a “representative of an educational interest group,” who would be selected by the majority of the other deciding parties.
Hogue helped write the current wording of Measure 3 and said this, and other vague language in the measure, is intentional.
“You don’t put that level of detail in the constitution because those things can change,” he said.
The constitution specifies that the “state commissioner,” which is currently referred to as “chancellor,” must be a college graduate and have experience in higher education. Board members must live in North Dakota for at least five years, according to the constitution.
Measure 3 states that one member of the commission must have private sector leadership experience, one has to currently hold a job in higher education and the third doesn’t have any job requirements.
The current board has members serving four-year terms no more than twice in a row, but Measure 3 states each member will serve four-year terms and can be reappointed three consecutive times. The initial people appointed will be staggered so their terms don’t all end at the same time.
The measure does not stipulate whether a commissioner could serve three terms, leave for one, and then come back, but Hogue said that’s a very unlikely possibility.
“If you stepped away and then tried to go back to the nomination process I’d expect you’d have a difficult time,” he said. “The nominating committee would want to know why they wanted to serve again. The intent would be no ... but it’s not explicit that you can’t come back.”
Flakoll said this four-year extension was made because the commission would be a paid, full-time group.
“It’s a job, not a board,” he said.
If Measure 3 passes, a commissioner could be kicked off by the board through the same process used to impeach the governor. This is a big change from current standards where board members or the chancellor can be removed by board vote as well as the impeachment process.

Related Topics: EDUCATION
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