Gov. Bevin quotes opinion from former AG Conway, his gubernatorial opponent, in attempt to prove reorganization powers

06/24/2016 09:19 PM

UPDATED: FRANKFORT — The ongoing battle between Gov. Matt Bevin and Attorney General Andy Beshear took a turn for the surreal on Friday, as the first-year governor cited an opinion from his former gubernatorial opponent, ex-Attorney General Jack Conway, in his defense of reorganizing the University of Louisville Board of Trustees.

Republicans in the legislature quickly came to Bevin’s side as Conway sought to set the record straight and condemned the Republican governor’s actions as a re-write of state statute.

Bevin’s press office pointed reporters Friday to an opinion from Conway dated Sept. 29 regarding disproportionate minority representation on the UofL board.

In the opinion, Conway called on former Democratic Gov. Steve Beshear “should voluntarily undertake corrective action” to bring the board into compliance with state statute.

Bevin’s office highlighted a footnote inside the six-page opinion from Conway, where he writes “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…”

Conway also wrote in the opinion, but Bevin’s team did not include in the release, that then-Gov. Beshear should have the abolition of the board approved by the appropriate interim committee in General Assembly.

“… if such a temporary reorganization plan is first reviewed by the Interim Joint Legislative committee with appropriate jurisdiction,” Conway’s footnote began before outlining potential steps to come back into statutory compliance with minority representation.

The full opinion is available to download here: OAG15015.pdf

A 1984 court ruling makes the need to consult with the interim committee potentially obsolete. In the ruling, Legislative Research Commission v. Brown, the Kentucky Supreme Court held that part of the statute to be unconstitutional.

“[O]nce the General Assembly has made a determination that the power to reorganize state government in the interim periods between legislative sessions does exist, and determines that the power is in the hands of the Governor, such interim action is purely an executive function,” the court order reads.

“Implicit in this provision is that final approval of any plan is legislative in nature. … Having declared that there may be a need for interim reorganization and having declared that the Governor is the proper agency to undertake such action in the interim period and finally having declared that approval of such action is legislative in nature, the General Assembly cannot delegate such legislative authority to the LRC.”

Gov. Bevin did deliver copies of the executive reorganization orders to the Legislative Research Commission, for delivery to the joint interim legislative committees, but the precedent set in the 1984 case would essentially put the power in the hands of the governor when the General Assembly is not in session.

Bevin’s spokesperson called on current Democratic Attorney General Beshear, who is seeking an injunction against the governor, to “admit he is wrong.”

“Attorney General Andy Beshear should admit he is wrong,” Bevin spokeswoman Amanda Stamper said in a statement. “He has disregarded a recent legal opinion from his own office on this very issue. Attorney General Beshear should stop putting politics above the law and drop his frivolous, irresponsible lawsuit.”

Beshear defended his lawsuit against the governor and slammed Bevin for not working with his office under the orders of the Franklin Circuit Court.

“Yesterday, Judge Shepard asked the parties to work together on this issue. This is not a good start by the governor,” Beshear said in a statement. “Jack Conway has already said the governor is on ‘shaky legal ground’ because the governor cannot rewrite statutes. He further cannot use reorganization power to seize control of a university or the $16 billion managed by Kentucky Retirement Systems.”

Conway also sought clarification on the opinion he had written last year.

In a phone interview with Pure Politics, the former attorney general said the document should not be used in defense of Bevin’s reorganization of the UofL Board of Trustees.

“That opinion should not be read to say that governor Bevin can do what he attempted to do last week,” Conway said.

Conway said that the governor could abolish and reorganize boards that are attached to program cabinets, but he warned that any governor could not abolish governing boards of postsecondary institutions.

“It’s very clear that with regard to the minority representation to the UofL board that the governor can’t remove anybody because removing trustees can only be done for cause and pursuant to a hearing in front of the Council on Postsecondary Education,” he continued.

“If you read the opinion, I say they’re out of compliance with the statute, but you can see we’re struggling with what the remedy is. So we almost as an afterthought, we kind of put it in as a novel approach if you did in consultation with the General Assembly.”

Conway went on to say that his approach in the opinion is a “far cry” from Bevin’s use of executive powers to “re-write a statute.”

“I think they’re taking that little footnote and blowing it way out of proportion,” he said.

The General Assembly is not currently in session, and while the governor seems to be reinterpreting state statute, some in the General Assembly agree with the move.

Senate President Robert Stivers said Bevin “does have that ground” to reorganize the board. The Manchester Republican pointed to former Gov. Martha Layne Collins’ approach to a reorganization of the Morehead State University board during her term.

Collins threatened trustees with removal if they did not resign their posts.

“She took it over. It was a little bit different methodology, but she had the hammer hanging over their head so either you resign or I’m going to remove you,” he said.

When asked about Collins’ approach to reorganization and what Bevin could have done, Conway agreed her approach was legal, but he said it may not have worked for Bevin.

“That would have required diplomacy and tact,” he said.

When asked if diplomacy and tact were traits Bevin was lacking, Conway replied, “I’ll leave that open to your interpretation.”


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