Court rules that Gov. Bevin overstepped authority in reorganizing University of Louisville board

09/28/2016 12:58 PM

FRANKFORT — Franklin Circuit Judge Phillip Shepherd ruled Wednesday that Gov. Matt Bevin exceeded his authority by abolishing and revamping the University of Louisville’s board of trustees in June, likely setting up a second battle between Bevin and Attorney General Andy Beshear before the Kentucky Supreme Court.

Shepherd, in his ruling, said that Bevin’s power to reorganize boards does not extend to the state’s public universities, which have fallen “outside the scope of the organizational structure of the executive branch of government” since 1952.

He called Bevin’s attempt to restructure a university board “entirely without precedent.”

“The Governor’s assertion of unlimited power, during the legislative interim, to abolish a Board, composed of members who can only be removed for cause, would completely defeat the protection of Board members from partisan political interference for discharging their fiduciary duties,” the judge wrote in his ruling.

“The unlimited power to ‘abolish and recreate’ this Board is wholly inconsistent with statutes that explicitly limit the Governor’s power to remove university board members. Such control would establish a dangerous precedent that invites the abuse of power.”

Shepherd’s ruling nullifies Bevin’s executive orders regarding the UofL board and enjoins his administration “from interfering with, or obstructing in any way, the lawful operation and governance of the incumbent University of Louisville Board of Trustees who were duly appointed.”

A copy of Shepherd’s order can be downloaded here: Shepherd University of Louisville board ruling.pdf

Bevin overhauled the 17-member board of trustees at UofL after first saying the board had become dysfunctional, then arguing that his predecessor, Democratic Gov. Steve Beshear, didn’t follow state law regarding proportional representation of political registration on universities’ governing bodies.

Shepherd later issued a temporary order reinstating the former board and barring Bevin’s board from taking future action. The panel had accepted the resignation of ex-President James Ramsey in July.

Bevin’s attorneys had relied on a Kentucky Court of Appeals decision in 2007 for the assertion that the governor could reorganize university boards under chapter 12 of state law.

However, Shepherd said the 2007 decision — which found that a governor could reject a list of nominees for university board vacancies and request another — didn’t apply because “the fact that the Governor retains one power related to public universities does not bring those institutions within the scope of KRS Chapter 12 for all purposes.”

Bevin’s office said it is still processing the trial court’s ruling.

“Our General Counsel is taking the time to properly review the ruling that just so happens to come out the day before the one-year anniversary of the Attorney General’s opinion that AG Beshear, and now the Circuit Court, ignored which clearly states, ‘KRS 12.028(1) specifies that these reorganizations ‘may include the creation, alteration or abolition of any organizational unit or administrative body.’ The Governor thus has the authority to reorganize the [University of Louisville] Board,’” Bevin spokeswoman Amanda Stamper said in an email.

During a Capitol news conference Wednesday, Beshear said he hoped to see the matter before Kentucky’s highest court, which ruled last week that Bevin exceeded his authority in cutting universities’ fourth-quarter allotments last fiscal year, sooner rather than later if the governor plans to appeal the decision.

“What our students and faculty need now is finality,” he said. “That’s why I’m calling on Gov. Bevin to accept this ruling and to go ahead and appoint the five open trustee slots to the board. If he does that, UofL can notify its accreditation agency that it is now in compliance, and student federal financial aid will no longer be at risk.”

If Bevin appeals the decision, Beshear says he’s confident that Shepherd’s ruling will stand.

Shepherd’s ruling “is well reasoned and well written, and I believe that there are other arguments that he did not address,” Beshear said.

“An appellate court could either affirm this decision on the grounds that are in it or on constitutional grounds,” he added.

Asked whether he had spoken with the governor about the Supreme Court’s decision and the $18 million in higher education funding in question, Beshear said his only recent correspondence with Bevin came in “a nasty text message” sent from the governor late Tuesday in which he called Beshear’s office “an embarrassment to Kentucky.”

“Being the adult in the room, I did not respond,” Beshear said.

Beshear’s office released a copy of the text message, but Bevin’s office said a hyperlink to a Lexington Herald-Leader story regarding an investigator in the attorney general’s office giving false testimony in court.

Amanda Stamper, Bevin’s spokeswoman, said the attorney general “manipulated” the message by omitting the link and reiterated that Beshear’s office “is clearly an embarrassment to the Commonwealth.”

She cited the federal bribery case against former Personnel Cabinet Secretary and Chief Deputy Attorney General Tim Longmeyer, for which he’ll be sentenced on Thursday, among the points against Beshear.

“AG Beshear is once again misleading the media and the people of Kentucky,” Stamper said in a statement. “The governor was correct. The deceitful behavior of the AG and a number of his staff are an increasing embarrassment to Kentucky. We all deserve better.”

Terry Sebastian, Beshear’s spokesman, said the attorney general received the link and the message separately.

“The governor can spin his actions all he wants,” he said in a statement. “The fact remains that instead of working with our office, the governor chose to spend his time sending an attacking text to the attorney general instead of governing the Commonwealth. This action is beneath the office of the governor and Kentuckians deserve better.”

The message released by Beshear’s office can be viewed here:

The message released by Bevin’s office can be viewed here:

Reporting by Pure Politics political reporter Kevin Wheatley and producer Madeline Janicki

About Pure Politics

Pure Politics airs Monday through Friday at 7 p.m. ET and again at 11:30 p.m. ET in all of cn|2's Kentucky markets. The program features political analysis and news, as well as interviews with officials, candidates, policy makers and political observers.

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