Louisville Board Overhaul Blocked

Kentucky's governor improperly served as "judge, jury and executioner" in abolishing University of Louisville's Board of Trustees, a state court finds.

September 29, 2016
 
Commonwealth of Kentucky
A Kentucky circuit court judge ruled against Governor Matt Bevin.

A judge on Wednesday rejected Kentucky Governor Matt Bevin’s attempt to replace the University of Louisville’s Board of Trustees, issuing a strongly worded ruling calling the change inconsistent with state law and an invitation to future abuses of power.

“The governance of public universities has been carefully structured to insulate institutions of higher education from the direct influence of partisan politics,” Franklin Circuit Court Judge Phillip J. Shepherd wrote in a 17-page opinion. “The governor’s assertion of the right to unilaterally abolish and recreate the Board of Trustees during the interim between legislative sessions is wholly inconsistent with the statutory framework of higher education in Kentucky.”

The ruling is a major blow for Bevin, who in June called Louisville’s Board of Trustees dysfunctional while issuing executive orders to abolish the university’s 20-member board and create a new 13-member governing body. It is a victory for opponents of that move, many of whom had been concerned the executive action infringed on the university’s governance structure and academic legitimacy while imperiling its accreditation.

It is also a victory for Democratic Attorney General Andy Beshear, who sued to block the governor’s orders and has frequently been in conflict with the Republican Bevin.

Shepherd’s judgment follows a summer of uncertainty at Louisville. Bevin’s revamp of the Board of Trustees came with a deal under which the university's embattled president, James Ramsey, resigned in late July. Shepherd issued a temporary injunction July 29 blocking the new board. After several weeks of confusion, the university’s original board met in late August to formally approve a budget. But key administrative operations were slowed or curtailed -- the budget was passed nearly two months after the university’s fiscal year began July 1, and Louisville has not yet been able to launch a search for a permanent president to replace Ramsey.

Shepherd found in his judgment that the governor does not have reorganization power over public universities in Kentucky, where the Legislature placed public universities outside the executive branch’s organizational structure. The judge also found that the governor must hold to state laws requiring board members to be removed only for cause -- such as neglect of duty or malfeasance -- and entitling board members who are removed to a hearing in front of Kentucky’s Council on Postsecondary Education.

Previous governors have dealt with divided university boards of trustees by requesting resignations or by going through normal judicial and administrative processes, Shepherd wrote. They have not attempted to reconstitute troubled boards.

“There is no legal or historical precedent for the governor’s actions in abolishing and reconstituting the Board of Trustees of a public university,” Shepherd wrote.

Bevin had argued that laws requiring due process for board member removal applied only to individual board members, not to entire boards. But the judge rejected that argument.

“By this logic, the governor could abolish an entire department of state government and lay off all of its employees without giving any employee the right of appeal,” Shepherd wrote.

The judge continued by saying that one of Bevin’s executive orders “reads like a bill of particulars” alleging misconduct, neglect and malfeasance on the part of board members. The allegations “malign the integrity and competence of board members” without giving them recourse, Shepherd wrote. He called the move a “unilateral fiat” by the governor.

“He served as judge, jury and executioner of the incumbent board without any legal process to determine the merits of the charges,” Shepherd wrote.

The judge took further issue with the way Bevin apparently negotiated Ramsey’s departure. The ruling says that the governor improperly agreed to fire and replace Louisville’s Board of Trustees as a condition of Ramsey’s resignation. That violated state statutes giving governance power to trustees.

Bevin had argued the board’s makeup did not meet certain legal requirements for minority representation and political party balance. But Shepherd wrote that the governor could have corrected that issue by filling existing vacancies on the board with minority trustees and Republicans. His judgment noted that Bevin has not fulfilled a legal settlement from March requiring him to appoint additional minority trustees.

Shepherd wrote that he did not doubt Bevin’s intentions were good when he attempted to abolish and reconstitute the board. But he said allowing such action would set a dangerous precedent.

“If the court adopts his interpretation of the reorganization statute, there would be nothing to stop a future governor from employing it to destroy a university board as a means of political retaliation, or to extort some economic advantage, or for other motives that are not yet in the public interest,” Shepherd wrote.

The judgment enjoins the executive orders’ implementation and declares that public universities are outside of Kentucky governors’ reorganization power. It also declares that university board members cannot be removed except for cause and after hearings.

The governor’s lawyers are reviewing the ruling, Amanda Stamper, a spokeswoman for Bevin’s office, told the Louisville Courier-Journal. She declined to address whether an appeal is coming but said that the ruling ignores an opinion issued under a previous attorney general giving the governor reorganization authority.

Beshear issued a statement asking Bevin to move quickly after the ruling -- whether he decides to appeal or not. The statement noted the Board of Trustees has unfilled openings.

“What our students and faculty need now is finality,” Beshear said. “That is why I am calling on Governor Bevin to either accept the ruling and appoint trustees to the five openings, or agree to move this case immediately to the Kentucky Supreme Court.”

University officials offered their own statements.

“We look forward to the final resolution of this issue,” Acting University of Louisville President Neville Pinto said in a statement. “In the meantime, the University of Louisville continues in its commitment to providing high-quality education to our students, conducting groundbreaking research and being engaged in the community we serve.”

Larry Benz, who chairs the board that had its power upheld, said he would not make any comments on legal matters concerning trustees.

“It is an honor and a privilege for all appointed trustees to serve the University of Louisville,” Benz said in a statement. “We look forward to continuing with Dr. Pinto and the office of the president, students, faculty, and staff in the ongoing progression of student success, breakthrough research and community engagement."

The ruling Wednesday comes less than a week after Kentucky’s Supreme Court ruled in a 5 to 2 decision that Bevin overstepped his authority when he unilaterally cut the budgets of Kentucky community colleges and universities. The decision, which frees $18 million in appropriations for colleges and universities, was cited in Wednesday’s ruling.

Shepherd’s decision also referenced worries that Bevin’s Board of Trustees changes could affect Louisville’s standing with its accreditor, the Southern Association of Colleges and Schools. The accreditor wrote in August that the trustee overhaul appeared to put the university out of compliance with the agency's standards.

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