60 OAG 158 (1969)
 
 
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University - Regent as Student

A regent of the University of Wisconsin is
not precluded by law from attending the
university as a student or from receiving
a degree from the university, but he must
guard against and refrain from any possible
conflict of interest.

The regents should establish policy and
guidelines to govern this situation.

October 30, 1969.

CLARKE SMITH, Secretary

The Regents of the University of Wisconsin

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You request my opinion on the following
questions:

1.   May a regent of the University of
     Wisconsin attend the University of
     Wisconsin as a graduate student
     taking courses for credit?

2.   May such a regent receive a graduate
     degree from the University of Wisconsin
     while serving as a regent of the
     University of Wisconsin?
 

Regents of the University of Wisconsin
have been held to be public officers.

Martin v. Smith, (1941) 239 Wis. 314.

Sections 946.12 and 946.13, Stats.,
are concerned with private interests
of public officers.

Section 946.12(3), Stats., prohibits a public
officer from exercising a discretionary power

     in a manner inconsistent with
     the duties of his office

and
     with intent to obtain a dishonest
     advantage for himself or another.

It is my opinion that this section does not
prohibit a regent from attending the
university as a student, nor from receiving a
degree while serving as such regent without
some indication that such attendance or
awarding and receipt of such degree was
done "with intent to obtain
a dishonest advantage."

Section 946.13, Stats., prohibits a public
officer from negotiating or entering into a
contract in which he has a private pecuniary
interest, whether direct or indirect.

The question which then necessarily arises is
what is the legal relationship of a student
to the regents, the ultimate governing body
of the university.

Courts have frequently used a contract theory
to describe the relationship between the
student and the university.

In Zanders v. Louisiana, (1968) 281 F. Supp.
747, 756, the federal district court for the
Western District of Louisiana after
dismissing "in loco parentis" as of little
use in dealing with the problems of students'
rights, alluded to the "contract"
theory as being mare valid in these words:

   On the other hand, the contract theory
   defines the basic relationship between
   university and student in terms of rights
   and obligations which naturally lends
   itself to a more fitting position
   within the judicial framework.

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   While most of the emphasis and interest
   in the field of student rights has
   occurred in recent years, concern for
   these rights was exhibited over sixty
   years ago in Koblitz v.
   Western Reserve University. . .

     The court went on to characterize the
     university-student relation as a
     contract and then stated:

     What then are the terms of such a
     contract?  He [the student], upon making
     that contract, agrees to submit himself
     to the reasonable discipline of the
     school. He agrees that his conduct and
     character shall be such as to in no
     manner be detrimental to the school;
     and this conduct and character he
     must bear in all his relations
     with the school and with
     other students.

     He agrees that he will conform to the
     customs of the school; if it is the
     custom of the school that the professors
     shall discipline the scholars, reprimand
     and inflict such punishment as is proper
     under the circumstances, then he has
     agreed that he will conform to
     that custom.

     And he agrees that when he fails in any
     of the duties devolving upon him, the
     authorities over the school may
     discipline him in such a manner as shall
     be proper under the circumstances.

     The University agrees with him that it
     will impart to him instructions; that it
     will aid him in the ordinary ways in his
     studies; that it will treat him fairly;
     that it will give him every opportunity
     to improve himself, and that it will not
     impose upon him penalties which he in no
     wise merits, and that it will deal with
     him impartially.

     21 Ohio Cir. Ct. R. 154, 155"

If the regent-student relationship is
therefore considered as one of contract,
such relationship would be prohibited by
Section 946.13, Stats., if the regent
entered into such contract and had a
private pecuniary interest therein.

Webster's Third New International
Dictionary defines pecuniary as

1:   taking the form of or
     consisting of money . . . ;

2:   of or relating to money . . .

It is clear that a college education and
degrees constitute a substantial aid to
achieving higher income, however, the amount
of income specifically related to such
education is so subjective that I do
not deem this to be a "pecuniary interest"
within the intent of Section 946.13, Stats.

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There is, of course, the pecuniary interest
of a student in the tuition and fees which
he must pay to attend the university.

Although these fees and charges are under the
regents' jurisdiction, they are determined
for the various groups of students as a
whole, and therefore the regent-student
participating in such determination
does not, in my opinion, have a "private"
pecuniary interest as such.

His interest in this respect is similar to
that of a regent who has children attending
the university at the time of determination.

For this reason I do not construe regent
activity of setting fees for university
attendance to constitute a private pecuniary
interest for a specific regent.

The regents of the University of Wisconsin
constitute a body corporate acting as an
instrument for performing one of the
functions of the state government.

Section 36.03, Stats.

The general rule regarding personal dealings
between corporate directors and the
corporation is that

    a director cannot place himself in a
    position where his individual interest
    clashes with his duty to his corporation.

    19 Am. Jur. 2d 695.

This general rule does not however
preclude all dealings of a director
with the corporation.

The bounds of such dealing are set forth in
Nonprofit Corporations, Organizations and
Associations, Howard L. Olek, Prentice-Hall,
Inc., 1965, at page 321 as follows:

     It is obvious that a director is to act
     for his corporation's  -  not his own -
     benefit.  He may not, directly or
     indirectly, profit personally from his
     fiduciary position. This does not mean
     that a director or officer may touch
     nothing connected with the corporation.

     If no contract relationship and no loss
     or disadvantage to the corporation is
     involved, he is as free to act as is
     anyone else.

Also in 36 OAG 552, 557, a predecessor of
mine opined as follows:

      We therefore advise that in our opinion
      it would not be unlawful for the
      commissioner of savings and loan
      associations to retain his connection
      with and accept salary as an officer
      from an association which is subject to
      his supervision, with the qualification
      that he must refrain from passing on,
      considering, or taking any action in
      his official capacity with respect
      to any matter involving the association
      with which he is affiliated.

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Powers and duties of the regents directly
related to students are set forth in
Sections 36.06 and 36.12, Stats., as follows:
 
 

36.06 . . .(1)

      The board of regents shall enact laws
      for the government of the university
      in all its branches; . . . and
      determine the moral and educational
      qualifications of applicants for
      admission to the various courses
      of instruction; . . .

36.12 . . .

      The immediate government of the several
      colleges shall be intrusted to their
      respective faculties; but the regents
      may regulate the courses of instruction
      . . . and also confer such degrees and
      grant such diplomas as are usual in
      universities or as they shall deem
      appropriate, and confer upon the
      faculty by bylaws the power to
      suspend or expel students for
      misconduct or other cause
      prescribed in such bylaws.

While most of the powers and duties accorded
the regents are normally and necessarily
exercised to relate to students as a group,
there are instances where regents can and
do exercise powers relating to
individual students.

See Section 36.161, Stats., authorizing the
regents to grant scholarships; Section
36.185, Stats., authorizing the regents to
grant loans to students of exceptional merit
and Chapter V of the Regent Bylaws at section
5 (a) which reserves to the regents the power
to review or investigate disciplinary
proceedings against individual students.

It is my opinion, based upon the above
discussion, that a regent is not precluded
by statute or common law from attending
the university as a student.

Nor is such regent thereby precluded from
receiving a degree from the university
while he is serving as such regent.

It is clear however, that the regents, as the
governing body of the university, have great
power over the operation of the university
and the probability is great that situations
could arise wherein duties as a regent would
clash with individual rights or duties as a
student.

In such situation the regent is of course
bound to keep himself aloof and must refrain
from voting or debating such matter.

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See 52 OAG 367 and 133 ALR 1257, 1258.

I therefore suggest that the regents, as
a group or by committee, consider the
implications of attendance of a regent as a
student at the university and establish a
policy and guidelines to internally govern
such a regent-student relationship.

You have provided me with a copy of the
Report of the Special Regent Committee
on Conflict of Interest Policies
dated June 9, 1966.

It, however, appears from such report that
the basic consideration of the committee
was whether there was "private pecuniary
interest, direct or indirect" and there
is no indication that the subject of
a regent attending the university
as a student was considered.

RWW WMS

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