Die Neuordnung der Leitungsorganisation der Hochschulen durch die Hochschulrechtsnovellen der Länder
Author: Sandberger, Georg
Source: Wissenschaftsrecht, Volume 44, Number 2, April 2011 , pp. 118-155(38)
Publisher: Mohr Siebeck
Abstract:The article deals with the reorganization of governance structures of higher education institutions in Germany.
The reorganization of the management of universities and colleges is directly connected with the strengthening of institutional autonomy in the context of the most recent state regulation in HE. It is due to the challenges of increasing competition between HE institutions on the national and global level.
Their goal is to combine management responsibility and management autonomy within the HE governance, the separation of the functions of management, super vision and decisions concerning fundamental issues. The model of the legislative reform is the governance of business corporations which, in some state legislation, is mirrored even in the denomination “Vorstand” (executive board) and “Aufsichtsrat” (super visory council).
The central focus of the recent reforms is on strengthening the competences of the executive board on the central and faculty level at the expense of the traditional terms of references of academic bodies (university senate and faculty senate). This is mani fested in the transfer of so called “catch all competences” (Allzuständigkeiten) for the affairs of the university or college, originally vested in the senate, to the executive board (Rektorat, Präsidium).
Its legal competences are complemented by a catalogue of terms of references concerning strategic planning, management of human resources, finance and facilities which includes management by objectives (Zielvereinbarungen), the linking of strategic and financial planning. The supervisory powers are vested in a university or college council with predominantly external (non university-) members, the equivalent to the board of governors in the Anglo-American system. Apart from advisory functions, the appointment and supervision of the executive board, the supervisory has to consent strategic and financial planning presented by the executive board. In contrast, the competences of the senate are reduced on consent to strategic planning, to the approval of statutes and to fundamental issues of research and teaching. The election and removal of the university or college management is carried out in a networked process between the university or college council and the senate; the final decision power shows striking differences in the state higher education codes.
There is also a big range as to the content of the powers and authority of the executive board related to other decision making bodies. The executive board is involved in numerous feedback processes with other bodies and subunits of the institution which include initiative rights, information rights and duties and accounting, but also in the case of the removal of the members of the executive board because of loss of confidence.
This organization of the appointment procedures and the decision making process is essential for the legitimacy of power entrusted to the executive board and the supervisory council. It is, according to decisions of the Federal Constitutional Court (Bundesverfassungsgericht), the Federal Supreme Court for administrative affairs (Bundesverwaltungsgericht) and State Supreme Courts (Landesverfassungsgericht), the prerequisite for the constitutionality of the new governance system. According to their decisions, the transfer of power in academic to the executive board and supervisory council need the legitimation of their appointment by a vote of the senate and suitable feedback and control processes in academic issues of major relevance.
There are numerous options for the design of the governance structure of the individual HE institution including options for monocratic or collegiate forms of leadership. Traditionally the collegiate organization of the executive board called Rektorat was dominant which conforms to the idea of the university as a collegiate system. But now adays increasingly the monocratic Anglo-American type of HE-leadership has been chosen as regular form.
Even in the collegiate type of leadership there are monocratic competences vested in the chief academic officer (President, Rector).
The article deals in detail with the variants of the governance, the division and interfaces of individual and collegiate responsibilities within the executive board, finally the role of the chief administrative officer (Kanzler). Originally the representative of the state, she or he later was, until the recent reform, the head of the central administration and responsible for the financial affairs. These functions have to be integrated into the new governance structure.
The article finally explains inconsistencies in the present state codes concerning the regulation of responsibilities within the executive board and tries to offer solutions and options for a systemic consistent organization which could be adopted by the charter of the individual institution.
Document Type: Research Article
Publication date: April 2011
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