Governor Bevin Continues To Block UofL Board of Trustees.

Recommendations for a path forward.empty-presidential--chair

In an exercise of stunning hypocrisy, Kentucky Governor Matt Bevin warned the remaining former UofL Board of Trustees members that should they meet against his advice, that anything they do will be invalid because they are illegally composed in terms of race, gender, and political party registration.  He obviously disagrees with the decision of Circuit Court Judge Philip Shepherd who granted a temporary injunction against the dissolution of the former UofL Board which Bevin replaced with 10 obviously hand-picked new appointees. The Governor has a right to disagree and the ability to appeal the judicial decision in an unthreatening prescribed manner. However, essentially giving Bevin or Ramsey-friendly former trustees an excuse not to show up is a disturbing way to proceed and does not inspire confidence that the Governor is not being driven by the political motivation he ascribes to others.  [Some of the former board were apparently listening. See below for today’s new developments.]

Show me a legally empaneled Board –any Board.
There is little doubt that the several statutes defining a required composition of the controlling boards of the state’s various academic entities has been much ignored for some time and by several governors.  I shared my opinion earlier that the entire system of University Board appointments is irretrievably broken and needs to be replaced in its entirety. If the governor is serious about his concerns, he needs to examine the current composition of all the relevant Boards, and to deem those out of compliance illegally constituted as well.  Governor, I believe you have been badly advised.  By your own words and logic, your own Governor’s Postgraduate Nominating Committee that you recently largely reconstituted, is on its very face more illegally constituted that of the UofL Board you compel to sit on their hands as their University burns. By your own words and logic, any of your Nominating Committee’s actions are equally illegal and invalid– including the nomination of the ten UofL trustees you recently attempted to seat.  The advice you have been given allows a reasonable person to perceive your motives to be more politically driven than in the name of efficiency, and makes your pronouncements sound less than gubernatorial. Let me explain.

The Governor’s committee seems to obey no laws at all!
I attended a meeting of the Nominating Committee in Frankfort last Monday.  To my knowledge, I am the only member of the public to have attended these meetings in the last year.  Perhaps this is why the Committee had not prepared itself to operate within the requirements of Kentucky’s Open Meeting laws.  I made the road trip because within a few days of Governor Bevin’s Board being sidelined by the temporary injunction, I received a notice from the Governor’s office that the Committee would meet on August 1.  I naively assumed that the substance of the meeting would be, at the very least, to generate nominees to fill the two currently open UofL slots with Trustees of minority race as the Governor had promised to do in accordance with a judicial settlement made many months ago. Additionally, the terms of office of two former Trustees expired in the middle of all the extended political and legal maneuvering, and at least one former Trustee expressed his intention not to serve further in the company of “troublemakers.”  The governor had a very real and currently legal opportunity to bring the Board towards statutory compliance as well as to move it in the direction of his policy priorities. Alas, I had made an unwarranted assumption.

Not my fault!
The fault however, was not entirely mine.  When I arrived at the Capitol, I was greeted by a member of the Committee who informed me that the meeting was a regularly scheduled one, and that the University of Louisville was not on the agenda. When I excused my misunderstanding by noting that I had seen no published agenda, he comforted me by stating that he had not seen one either.

I decided to stay anyway, because I wanted another opportunity to see how the Committee did its business. All but one Committee member arrived from their far-flung corners of the state. I asked the representative of the Governor, who was present and seemed to be directing the meeting, for a copy of the agenda but the absence of one was confirmed. I was told that an email memo had been sent to the committee in place of an agenda.  When I asked for a copy of the memo, I was told to do so through an open-record request.  When I asked if a copy of the approved minutes of the last meeting would be made available to me, I was told again to make an open-record request. (After apparent second thoughts or for simple courtesy, the Governor’s Director of Boards and Commissions did later provide me with a copy of the memo dated July 26, 2016.)  The Boards of 11 different Universities, Corporations, and Authorities were on the table, but not the University of Louisville. In fact, UofL was the only major state University not listed in the memo.

Did I have a valid reason to stay?
After initial greetings and some discussion and approval of the minutes of the last meeting, the Committee noted they were now in Executive Session and bid me goodbye.  At this point, I addressed the Committee and politely noted that I was leaving under respectful protest. I noted that I well understood that I had to leave when discussion of matters “which might lead to appointment, discipline, or dismissal of an individual employee, member, or student,” occurred, but that it was my belief that the Committee would have much to discuss that was not exempt from Open Meeting law; such as their current charge, the statutory requirements of the various Boards and Authorities, or for that matter whether they might have to present a panel to the Governor consisting of a single gender as directed by their own enabling statute should any  current individual Board be out of compliance in that regard.

I noted frankly that what they did was very important for the Commonwealth and that the public had a right to know that its interests were being dealt with in the transparent and accountable manner required not only by Open Meeting law, but by good governance.  I politely (I hope) pointed out that their own composition was badly out of compliance with their organizing statute consisting as it did of six men and one woman, five Republicans and two Democrats, and that all of them were all white. Within a margin of error that generated a chuckle, I characterized the Committee as a stereotypical white male group.  I noted that their own narrow composition was an additional reason why any general discussion of their task for the day should not be done behind closed doors alongside the privileged discussion of individual candidates. I indicated that I might ask for an appropriately redacted transcription of the executive session– if indeed it was recorded. [Do I have grounds to do so?]  I was thanked for being there and again politely bid goodbye.

I do not think I need a lawyer or judge to tell me that something was very wrong with Monday’s proceedings.  No published agenda for the meeting was issued allowing anyone to judge what matters were appropriate for executive session or even what would be discussed at all. Doesn’t even the action of withdrawing into Executive Session have to be listed on an agenda? If the committee was going to do their statutory job, it is clear there were more things to discuss than the qualifications of individual candidates. I will leave it to others to determine if Open Meeting law was followed.  However, as a citizen, I am left to conclude that the appointment process is opaque, intensely political, and proceeds in complete disregard for Kentucky law.  I suggest to the Governor, that if he wishes to continue to use the strawman of “illegality” to further control the governance of the University of Louisville, that he follow through by simultaneously reevaluating the Boards of all the other entities under the jurisdiction of his Nominating Committee, beginning first with the Nominating Committee itself.  To maintain his current posture is supremely hypocritical.

My unsolicited recommendations to the Governor and anyone else!

• Allow the judicial review process to continue to completion. Parties with standing can appeal any decision. Do not make a political playground fight out of this. You should assume that the Attorney General and the Judge are doing their jobs, and we should be allowed to assume you are doing yours.

• Allow the previous Board of 20 appointees to function without intervention or implied threat. It is the only Board that we have for now. Depending on if and who appeals any further judicial findings, resolution in the courts may take many months or even years to reach a final decision. To allow the University to wallow leaderless in its current state would be cruel if not unconscionable. The former and now current Board has indicated it will formalize the decisions made by your preferred Board. It needs to get on with the business of finding a new President for UofL, to approve a budget, and to oversee the growing assembly of legal, compliance and regulatory matters that are dragging the University down. Even if our current nightmare was not the result of the administration of former President Ramsey, it was not effectively managed by it.

• You should not allow a perception that you are protecting Dr. Ramsey as a potential leader of either the University of Louisville or the University of Louisville Foundation. He has become a divisive figure in the community and can no longer effectively lead.

• Fill at least two of the open Trustee slots promptly – as you agreed you would do – by minority race individuals. That should not be difficult. I applaud your willingness to have done so in the ten-member Board you attempted to seat.

• By all means replace the two trustees whose terms have expired in the past few months. One of these has been, by statute or custom, selected from a list presented to you by the UofL Alumni Society. That non-official group has no obligation to present you with candidates of any given race, gender or politics, thus limiting the options available for you to meet the statutory requirements of your appointments – including term limits. The current alumnae representative has been seated continuously on the Board for at least the last 14 years and has been there in the years before as well. I therefore suggest you select someone else from any list of nominations that might be presented to you. Board appointments are not supposed to be life-long entitlements.

• Begin a process to completely redo how the Trustees of our state Universities are selected. What we have now has demonstrated its inability to remain independent of the political process – or even follow existing process for that matter. We are already seeing how the independent governance required by academic accreditation is being threatened. I suggest that that assembly and evaluation of potential trustee nominations be done in a more structured, transparent, and accountable way than it is now. Searching for Board members is hardly less important that searching for Presidents. Even if false, it is too easy now to believe that people are being given appointments as political awards. I will be happy to help, as would any Kentuckian. I suggest that the process begin in the Kentucky Council On Postsecondary Education rather than in your offices or those of the legislature. It is recognized that statute, regulation, and culture will need to be changed for any new appointment structure.

I also offer recommendations to the Boards of Trustees of the University of Louisville and its quasi-independent UofL Foundation.

• The perils of allowing the same individual to serve as both President or Chairman of both your organizations and probably other affiliated ones have been abundantly revealed. Change your bylaws.

• You are expecting the results of an study by the state auditor of the fundamentals underlying the relationship of the University and the Foundation. No matter what it concludes, the entire concept of the current duality should be discussed openly. The idea that having a “separate” Foundation to enable the University to do things that are prohibited by state law seems unethical on its face. Furthermore, how can it be separate and accountable at the same time?  The assets of the University should remain exclusively under the supervision and responsibility of the Board of Trustees of the University. Behind-the-scenes financial rewards and maneuvering cannot happen. A situation where a retired or dismissed President can still control the assets of the University as he negotiates his or her separation is completely irrational and unacceptable. Shame on us all for setting this up to happen.

• Realizing that it will require a major redirection of precedent, and that it may prove awkward at times, you must change the way you do business in your meetings before the public. You are obviously not used to this. Former Chairman Pro-tem Junior Bridgeman gratifyingly appeared to move in this direction. Think about a way that the public can address the Board in a manageable way. You serve the public after all. If there really are “trouble-makers” on the board who do not have the University’s interests at heart (as some trustees have alleged) let the public decide who they are. They are obvious to me – and they are not those the critics identify.

• Perhaps it is necessary for the University to have so many associated corporations and foundations. If so, make that case better to the public. I suggest however, the Board of Trustees has allowed a system of governance of the various entities to evolve in a way that makes them overly susceptible to the control of a single individual and not the Board. To my inspection, the various Board members rotate from a limited pool to one corporation or foundation to another. Their members in recent years were found in at least two of the major corporations to be under the control of former President Ramsey. I suggest that such a system does not allow the “new blood” necessary for healthy corporate function, or the appropriate independence necessary to instill confidence in the public. These organizations should not comprise a club, but are supposed to be operated in the public interest. Make it more apparent that this is the case. Let’s see more and more varied representation from the public.

• Deal with the very real perception that preferred access to athletic events and social functions of the University has an untoward effect on the motivations or loyalties of a potential trustee. Allow rotating access to sporting events or require Trustees to access athletic events on the same terms as the general public. The perception that athletics trumps academics (doesn’t it?) damages our overall reputation.

What suggestions would you offer?

Still in the hole with no shovel to dig out with.
As I write these words, I learn that plans for a UofL Board of Trustees meeting tomorrow (Thursday) to confirm the actions of the Bevin Board and to get the ball rolling to recruit a new President have been aborted because of lack of a quorum. Instead, Acting Provost Nevil Pinto will hold a press conference and answer “media questions.” Perhaps it was simply impossible to assemble a quorum in a vacation month. However, one of the questions I will ask is who were the Trustees that were unavailable?  I may not get an answer, but I will make my usual Martini bet that they are the members who have been personally supportive of Dr. Ramsey, and who may have heard the warning of Governor Bevin not to meet as a request.

I admit and agree that the path forward will not be easy or free of disagreement.  However, we have allowed a growing sinkhole to develop out of which the University of Louisville is unable to climb.  Getting back on level ground should be our first priority.

Peter Hasselbacher, MD
Emeritus Professor of Medicine, UofL
3 August 2016.

 

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