New Board of Trustees at UofL.  A done deal?

Is it legal?  If so, where might it take the University?empty-chairs

Over the past few months The University of Louisville Board of Trustees has gone from 20 members to 20 sidelined members, to 3 “temporary” ones, and just last week to 13 possibly permanent members, 10 of whom were newly appointed by the Governor.  Although the sequence from dismissal to replacement was initiated by means of a questionable claim of illegal racial composition, none of the subsequent changes in Board powers or composition are authorized by existing Kentucky law controlling Board composition.  In its setting of a pending vote by the former Board of no confidence in President James Ramsey, the gutting and replacing of the Board can be reasonably interpreted as a way to protect the presidency of Dr. Ramsey, and to assert absolute control of the Board by the Governor.  I will suggest below that the method used for the recent appointment process and the fruits of its labor both reinforce these limited motivations. In my opinion, the outcome of the appointment process was never in doubt, and an attempt to legitimize the process through the Postsecondary Nominating Committee was a sham.

As a faculty member myself, I am not surprised that UofL faculty are also concerned.  The Faculty Senate just authorized a statement decrying the replacement Board and expressing concern that such a visible disruption of governance will jeopardize the University’s accreditation.  I am sure I am not the only citizen who urged the Office of the Attorney General to clarify the legal basis for Governor Bevin’s unilateral actions and to challenge an apparent belief that he has unlimited ability to ignore statute and change the structure of university governance.  As it happens, the legal issues related to this matter are currently before the Kentucky court system.   I do not expect a decision this summer.

In the meantime, and not surprisingly, President Ramsey has accepted the full legality of the new Board to which he has promised to offer his resignation and to which he plans to submit his budget containing a 5% tuition increase. He obviously joins the Governor is presuming the legality of the Board he is supposed to report to.  I wonder if his students support his sense of urgency.  I have no basis on which to predict the outcome of the Court’s decision in this highly politicized business.  I know very little about most of the 10 new people appointed to the Board last week.  I have, however, come to learn a few things about the way the nomination and appointment process of new Board members has worked in the past.  I was curious about how far the process of appointment had deviated from past statute or custom. I therefore made an open record request to the Governor’s Office for the application materials that were presented to the Governor’s Postsecondary Nomination Committee on behalf of the 30 individuals from which the Governor makes his picks. Here is what I asked for:

  1. The Application forms submitted to or considered by the Governor’s Postsecondary Education Nominating Committee and/or the Governor’s Office on Boards and Commissions by, or on behalf of the 10 new appointed trustees, together with supporting materials and required recommendations.  These would include a designation of political party affiliation and education.
  2.  The same information for the remainder of the 30 names (or however many were submitted to the Governor for consideration of appointment).

I must assume that based on my request, that the materials provided to me were all that the Nominating Committee had available to them on their meeting on June 28.  My conclusions include that statutory procedures were not followed and the ultimate appointees were handpicked by Governor Bevin’s office from the start.  Members of his equally handpicked and illegally-constituted Nominating Committee are free to elaborate on what happened during their closed door meeting, but in my opinion, they could not possibly have exercised the due-diligence upon this panel of candidates to anywhere near the degree that such an important position demands.

What did I get?
What I received in short order was some 140 pages of material that responded to the application process required by the Governor’s Office of Boards and Commissions.  These can be found on the website of the Governor’s Office.  They comprise a one-page application form that collects various demographic materials such as race, gender, political party affiliation, employment, education and the like.  It asks specifically if the applicant has ever been convicted of a felony and requests the names of two references who have known the applicant for at least a year.  A signature is required authorizing the Governor’s Office to conduct a complete check on the applicant’s background.  A second page collects information relevant to conflicts of interest in serving.  Applicants for appointment are asked to explain on a separate page why they would be willing to serve. Here are the applications of the 10 appointees.

And the result.
Most, but certainly not all of the nominees supplied the required information. To my inspection, the nominees in general have  been successful in their individual careers–  several spectacularly so.  I will not, indeed cannot at this point say much about their individual qualification to serve on the UofL Board of Trustees.  I can however comment on the process, and will express my concern that the ultimate choices of Governor Bevin reveal much about his personal vision for the future direction of the University.  A few of his picks are of considerable concern to me, and will be to many of my faculty colleagues.

How does the Panel of 10 stack up to Kentucky’s requirements?
First off, the number of  10 trustees over which the Governor has appointment control is less than the previous 17.  In a panel for which  gender balance is required, 7 of the appointees are male and 3 are female.  In a panel in which the balance of racial minority balance must reflect that of the state as a whole, there are now 4 such individuals instead of the required one.  I offered my congratulations to the Governor for this mold-breaking initiative and I do so again. In a panel in which the political affiliation of its members must reflect the proportion of registered voters in the state, the Governor has done well with 4 appointees claiming to be Republicans, 4 Democrats, and 2 Independents. (Note however that the Democrats received shorter terms of office than the Republicans.)  Several appointees are graduates of one UofL program or another, including its undergraduate School of Arts and Sciences.  All 10 are local, and live in Jefferson County (or just across the border).

Shoddy collection of data.
Despite the obviously successful careers of the appointees, it is clear that the nomination process was followed very unevenly or ignored. In fact, it appears to me that much of paperwork was filled out by the Governor’s office for both the 10 and the 20 runner-ups.  For half of the eventual appointees, the box declaring that the applicants had not been convicted of a felony was left unchecked, four applicants did not include the required information about conflict of interest, but at least two had direct external conflicts, and even more had obvious internal conflicts within the University.  Most of the 10 submitted a statement of why they wanted to serve or at least a resume, but surprisingly 3 of the 10 submitted neither, offering only a single partially filled-in first page of the application.  There were no letters of support from any of the offered references.  These incomplete materials are relevant to whether or not the Nominating Committee could possibly exercised due diligence in their considerations.  In fact, I offer that in the time frame available, it was impossible for the Committee to do so.

A rush into action.
Of the 10, only a single application was dated more than one month before the meeting date of the Committee – and that apparently was spontaneously submitted for more than a single possible board or commission.  A second application was dated 20 days before the meeting. The remaining 8 were dated only one or two days before the meeting – one on the very same day of the meeting. These dates suggest to me a last-minute rush job – not the way to pick the governance of our University.  The applications of those who were not appointed were dated modestly earlier in the month of June, and only 4 were of the last-minute variety that characterized the applications of the 10 appointees.

Were they ever seriously considered temporary?
The Governor sidestepped the independence of the process by requiring that the Nominating Committee include his three “temporary” Trustees in the panel of 30 to be presented to him.  All three were subsequently given permanent appointments. Only one of these had completed applications or was even dated.

Who was not appointed?
The panel of 20 passed-over included some well-prepared and credible applications.  Among them were 9 Republicans, 8 Democrats, 2 Independents, and one whose political affiliation was unstated.  Of the 19 who volunteered their racial background, 15 were white or Caucasian, 3 were Black or African-American,  and one was Indian-Asian.  Troubling was the gender balance of the 20.  Of all the statutory requirements the Nominating Committee must follow, gender balance is the one given most priority. This is evident in the direction that to the extent that the UofL Board is found lacking in its gender balance, the Committee must present to the Governor a panel solely composed of the lagging gender!   The initial panel of 24 males and 6 females is morally unacceptable and statutorily impermissible. More rules to be ignored?

The outcome was never in doubt.
My review of the applicaitons of candidates and the circumstances of the meeting of the Nominating Committee forces me to believe that the Committee did not, indeed, cound not have fulfilled its assigned responsibility of due diligence in presenting nominations for the Board of Trustees of the University of Louisville.  I continue to assume that the entire proccess of nomination and selection is controlled by the Office of the Governor, and that the present panel of 10 was preordained from the start.  One appointee  actually stated that the Governor asked him to serve! I remain willing to be convinced that the inclusion of the Nominating Committee in the appointment process of the present Board is something more than a sham.

Given all that, what do we have?
If we assume that the panel selected or preselected by Governor Bevin reflects a philosophy of the direction the University of Louisville will go in the future, what insights might we glean from his choices?  A couple things jump out at me.  Of the 10, the large majority are from the world of business, of Greater Louisville Inc., and more specifically, of individuals who have made their fortunes in venture capitalism, high finance, and entrepreneurialism.  This is a Board that will look favorably on the current commercial research and real estate development initiatives of the University, and by inference on the initiatives of President James Ramsey.

Should religion count?
Although this is a sensitive and personal matter, it is not possible to ignore that three of the appointees are members of Southeast Christian Church, as both the Governor and President Ramsey are also reported to be.  A fourth appointee whose depth of credentials does not match his fellows, is an anti-abortion physician who participates in related programs of Southeast Christian.  The University of Louisville has already made unnecessary problems for itself by aligning its medical center with the Catholic Church.  The last thing we need is to be perceived as aligning ourselves with another church heavily involved in divisive culture wars for which capture of the University would be a considerable prize.  I would like to believe that church membership is not a factor or would not affect governance of the University but that is not likely.  If Governor Bevin would not describe himself as a warrior for a greater role of religion in government, I will do so.  I have been reliably told that it was he and Catholic bishops that put pressure on University Hospital to sever its longstanding ties to Planned Parenthood.  I cannot ignore the information offered by one of the new appointees from Southeast Christian that he is part of an organization that helps “ministry and marketplace leaders understand what needs to be done to complete the task of world evangelism.”  This is the same appointee who is reported to have made comments expressing prejudice against homosexuals and is a science denier to boot.  Surely a possible religious agenda cannot be dismissed out of hand.  I cannot believe our faculty is happy with this particular appointment.  I am not.

Conflicts of interests?
Several of the appointees who made the attempt disclosed external conflicts of interest,  These included serving on the Boards of Trustees of other colleges and universities. One appointee has the University of Louisville Foundation as a Client.  Another is the senior officer in Advanced Cancer Therapeutics, a commercial research company profiting from University faculty and research.  Simply stating that they would not participate in any votes on related matters is an absolutely inadequate remedy for these conflicts.  These appointments should have been non-starters for the Nominating Committee.

Internal conflicts.
In my opinion there are other conflicts of interests that are of just as much concern.  The panel of 10 are already heavily involved in University Activities.  At least six of the 10 are serving in or have recently occupied leadership positions at the University of Louisville or the University of Louisville Foundation.  These include service on the Board of Overseers, Chairman of the James Graham Brown Cancer Center, the Board of Trustees of University Hospital, involvement in the Nucleus commercial research initiative, on advisory panels to the Business school, and more.  The most glaring internal conflict in my opinion is that of Mr. John Schnatter who has funded and largely controls by contract the Center for Free Enterprise at the Business School.  Now the individual who is largely responsible for establishing that program is in a position to further protect it and shape it’s output.  In my opinion, any claim of academic independence within the Center is badly undermined by this appointment.  I suspect this controversial program at the Business School is contributing to its difficulty in recruiting a Dean and retaining faculty.  This appointment will not help.

Has President Ramsey been friended?
I believe it goes without saying that the majority of these folks are of the kinds of people that President Ramsey himself might have appointed!  I suspect they will be very friendly to him and I will not be surprised at all if they do not accept his immediate resignation, or fail to endorse his tuition-raising budget.

I have little idea how all of this is going to play out.  I do know that my University has suffered greatly, and will continue to pay a heavy price for the controversies and scandals that occurred under the leadership of James Ramsey, his approach to dealing with them, and the manner in which Kentucky’s Governor has moved to protect and prolong the presidency of Dr. Ramsey. This has been a tragedy of more than Greek intensity.

Peter Hasselbacher, MD
Emeritus Professor of Medicine
University of Louisville
7 July 2016