Bevin and Boards: Mix of Legal and Not Legal

Bruce Maples (bruceinlouisville@gmail.com)
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I had a chance to speak with Senator Morgan McGarvey after his talk to the Downtown Metro Dem group today, and he had some good insights into Governor Bevin and boards, including which recent actions are probably within the law, and which ones aren’t.

Here is a summary of the points Senator McGarvey made, both in the talk he gave and in our subsequent conversation.

Powers of the Governor

Our governor has broad powers, as given to the office by the legislature over the years. Not unlimited, but broad. Some of a governor’s actions might bother some people, or seem too far-reaching, but in many cases a governor actually has that power under statute.

Reorganization of Boards

laws photo
Photo by Woody H1

In general, the governor has the power to reorganize boards and other agencies within the Executive branch of our state government. Those power are in chapter 12 of KRS (Kentucky Revised Statutes). So, when this governor, or any governor, decides to reorganize something like the Commission on Human Rights, that is within the governor’s power to do.

However, the same is not true when it comes to the board of the University of Louisville, and here is why.

University of Louisville Board

In order to prevent the governor (any governor) from having undue influence over the boards of our major universities, the Legislature decided some years ago to create a special section of KRS dealing specifically with those boards. In the case of UofL, that is section 164.821, a part of the chapter on higher education (chapter 164). That section is very clear and specific about the makeup of the UofL board:

“The government of the University of Louisville is vested in a board of trustees appointed for a term set by law pursuant to Section 23 of the Constitution of Kentucky. The board shall consist of seventeen (17) members appointed by the Governor; one (1) member of the teaching faculty of the University of Louisville who shall be the chief executive of the ranking unit of faculty government; a member of the permanent staff of the University of Louisville who shall be the chief executive of the staff senate; and a student member who shall be the president of the student body during the appropriate academic year.”

Notice the use of the word “shall” in this paragraph. That is a specific directive included in this section. Why is that important? Because in considering the hierarchy of authority in the law, the power moves from the general to the specific. When you have a specific instruction like this, it overrides the general direction of chapter 12. In other words, the board of 10 members appointed by our current Governor was illegal on its face.

But there’s more. Here’s the subsection on removal of current board members:

“Board members may be removed by the Governor for cause, which shall include neglect of duty or malfeasance in office, after being afforded a hearing with counsel before the Council on Postsecondary Education and a finding of fact by the council.”

It’s very specific. A board member may only be removed by the Governor for neglect of duty or malfeasance, AND the board member has to be given a hearing with counsel. None of this happened before the Governor removed the board all at once. His actions were illegal.

Finally, if you look further down in the chapter, you see that the board members serve in staggered six-year terms, which is longer than the four-year term of a governor. Why? So that a governor could not stack a board with his or her own appointees, and gain control of the board and thus of the school.

We want our universities to be free of this sort of political influence and control. It doesn’t matter who is the governor or which party they are part of; it is bad for our schools to be under threat of interference from the Governor if they do something he or she doesn’t like. But that is what is happening. And what does that lead to?

Impact on Accreditation

grawemeyerIn order to have a great university, it has to be accredited by a nationally-recognized body. The Southern Associates of Colleges and Schools is the accrediting agency for UofL. One of the key things that an accrediting agency looks for is academic freedom and institutional sovreignty. In other words, is the school free of “undue political influence”?

Governor Bevin’s actions with UofL’s board (both of them), as well as his involvement in President Ramsey’s resignation, have caused SACS to begin a formal review of the University’s accreditation. This is serious, and has the potential to be very bad for the school, its students and graduates, its faculty, and the city and the state.

Bottom Line

We all know that there were issues at UofL; some of those had been in the news for months. That’s not the point. The real point is that the Governor assumed powers that he did not have, took actions that were not his to take, and by doing so he has caused turmoil within the University and damaged the University itself. I am hopeful that the courts will help him understand where the boundaries are, and that he will respect those boundaries.

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