Is Gov. Bevin's U of L Overhaul Legal?
Gov. Matt Bevin has overhauled the leadership of the University of Louisville — sacking the 17-member Board of Trustees and replacing it temporarily with a three-person interim board. In the coming weeks, Bevin will appoint a new 10-person board.
On Friday, state Sen. Morgan McGarvey, a Louisville Democrat, questioned the legality of the reorganization.
“We have to have reform at the University of Louisville, but I think there’s a question of whether the governor can unilaterally wipe out an entire university board,” McGarvey said. "The statutes seem to have safeguards in place to keep that from happening.”
McGarvey, an attorney, points to state laws that say university board members can’t be fired or dismissed without cause, and that the school’s board is required to consist of 17 members.
Those board members are appointed by the governor and serve for four-year terms; there were two vacancies on the board before Bevin’s executive order on Friday.
As part of the leadership shakeup, Bevin also said he reached an agreement with U of L President James Ramsey, who said he would offer his resignation to the new Board of Trustees once it reassembled.
“As I said to you, the members of a restructured Board compliant with state law should have the opportunity for a ‘fresh start,’” Ramsey said in a letter to Bevin and distributed by the governor’s office.
Bevin has been on a board reorganization spree in recent months, overhauling the Kentucky Horse Park Commission, the Kentucky Racing Commission, the Workers’ Compensation Nominating Commission and the Kentucky Retirement Systems Board of Trustees.
There’s a lot of precedent for board reorganizations prior to Bevin’s tenure.
In 2005, Gov. Ernie Fletcher replaced the entire seven-member Kentucky Athletics Commission and changed it to the five-member Kentucky Boxing and Wrestling Authority.
Fletcher was upset that the commission granted Mike Tyson a license to fight in Kentucky after the boxer served time for a rape conviction.
But when asked on Friday if there’s precedent for overhauling a university’s Board of Trustees by sacking all the members and then replacing them, Bevin said he doesn’t know.
“I truly don’t know," Bevin said. "Here’s what I know. In the last four administrations, there have been 357 board reorganizations. I have not looked at every single one of those. In the previous administration, there were 103 board reorganizations. Whether some of those were university boards, I truly don’t know. And it’s irrelevant, frankly, as it relates to this situation.”
In a statement issued late Friday, Attorney General Andy Beshear called Bevin’s move “unprecedented” and said his office is reviewing it. He said state lawmakers "mandated that these boards be independent" but did not comment further on the legal question.
Bevin's administration is currently being sued by labor unions for overhauling and replacing all the members on the Workers’ Compensation Nominating Commission, which nominates administrative law judges who rule on workers’ compensation claims.
Franklin Circuit Judge Phillip Shepherd issued a temporary block on Bevin accepting any nominations from the revamped commission, saying the case “raises important issues concerning the scope of a governor's reorganization power.”
Shepherd said despite the common practice of board reorganizations, the procedure hadn’t yet been tested in the courts.
“(W)hether the governor can effect a wholesale firing of duly appointed state officials serving in offices with a term of years, through the guise of an administrative reorganization, is a power that has never been upheld by case law, even if such a tactic has been commonly employed by past governors,” Shepherd wrote in his order.
On Friday, Senate President Robert Stivers praised Bevin for the revamp of the U of L board.
“As an alumni, a legislator and a parent of two current students, Gov. Bevin’s announcement today regarding the leadership of the University of Louisville was a bold step,” Stivers said in a statement. “It was something that needed to happen with all that has occurred.”
Ousted U of L trustee Craig Greenberg said he wasn’t sure if the governor’s reorganization of the board passed legal muster.
“We are unaware if this is legal or not," Greenerg said. "And we will let other lawyers, the administration and the court system weigh in on that.”
McGarvey said that even if Bevin’s reorganization passes legal muster, the governor shouldn’t have that kind of power.
“Should he have that power? I don’t think that’s a power that the legislature would want the governor to have — to go in and be able to wipe out an entire university board,” McGarvey said.
McGarvey said a legal challenge to Bevin’s move would put the board in a “holding pattern” just as school starts back at the end of summer.
“To have more uncertainty that could result in a court case from the action of unilaterally replacing the board members -- I’m not sure is the best way to get the reform we all want to see happen in place,” McGarvey said.