The process of replacing a trustee who resigned to allow appointment of an additional racial minority to the Board of Trustees of the University of Louisville and replace a number of trustees whose regular terms in office are expiring is invalid on its face for exactly the same reasons that the UofL Board was neutered. Governor Bevin has not filled the open position with a minority candidate. Although my reading of the statute that controls gubernatorial appointments to our state Universities allows a Governor to fill unexpected vacancies without having to wait for nominees from the Governor’s Postsecondary Nominating Committee (Nominating Committee), the Governor has not explored that route but neither has he called for a meeting of the Nominating Committee to present him with names. A sceptic like myself might wonder if he was stalling to further protect his coreligionist, embattled UofL President James Ramsey. After all, it was by declaring the Board of Trustees was illegally constituted that Governor Bevin derailed an earlier attempted vote of no-confidence in Dr. Ramsey by the Board. By failing to appoint a replacement trustee and failing to involve the Nominating Committee, the Governor now finds himself in the happy place of being able to replace or reappoint five of the seven-member Nominating Committee itself, thus shaping it to his own policy and preference.
The composition of the Nominating Committee that is required to submit three names for each open trustee slot from which the Governor must choose is subject to its own statutory requirements. These are similar to those mandating the composition of state University Boards. Of its seven members, one must be from each of Kentucky’s seven Judicial Districts. Additionally, an even balance of political party, sex, and minority status is required. A Governor is also required to ask for advice from a specific list of higher education entities about who should serve on the Nominating Committee. (I am unaware if this latter procedure was complied with.) Two weeks ago, Governor Bevin appointed 4 new members to the Committee and reappointed a fifth. It has been reported that at least one member whose term was still current was unexpectedly discharged from the Committee. [I did not know a Committee member could be replaced at will by a new Governor!] Through an Open Records request last week, I asked for details of the Nominating Committee’s new roster including its racial make-up. Of the seven, 6 are men, 5 are Republicans, and – although racial minority status is not tracked in the official roster– to my knowledge all are white. This does not appear very balanced to me. Note also, that the political party balance of the committee is based not on which party holds the Governor’s office, but on the proportion of registered voters, giving a clear majority this year to Democrats! This white, male, Republican panel represents the antithesis of the Legislature’s intent to have diverse and representative bodies overseeing the higher education institutions of the Commonwealth.
The Governor was very clear that because the composition of last spring’s UofL Board of Trustees did not meet his interpretation of its statutory mandate, that any of its actions would be invalid and indeed illegal. I assert that by the Governor’s own words and logic, that the Nominating Committee he just appointed is illegally constituted and therefore cannot participate in this year’s round of new appointments to the Governance Boards any of Kentucky’s institutions of higher education. The University of Louisville is therefore left flapping in its demoralizing breeze.
As of last week, I am informed by the Governor’s office that no meeting of the Nominating Committee has been scheduled. Even if one is hastily assembled, it is hard to imagine how an essentially new committee would adequately be able to assemble and evaluate a panel of nominees for the Boards of UofL and the other universities – unless of course, the governor’s office already has in mind who is to be appointed. Appointments to Kentucky’s many Boards and Commissions is, after all, one of the most intensely political activities imaginable. This is how political supporters are rewarded, and more importantly, how a sitting governor – any governor – gets to shape his or her political agenda. In my exploration of the process of board appointments over this last year, I was often told by insiders, that despite the prescribed process, the sitting governor’s choice is the person who ultimately gets appointed. I have seen nothing yet to disabuse me from this assertion. The fact that the Nominating Committee seemingly does little to recruit potential board members and does less to evaluate them is compatible with this belief. I believe it is relevant that one of Governor Bevin’s new appointees to the Nominating Committee was himself the Executive Director of the Office of Boards and Commissions in an earlier Republican administration! I can see where this is going, can’t you?
Flapping in the breeze is not what I want for my University.
[Addendum May 12:
Did Governor Bevin improperly replace members of the Governor’s Postsecondary Nominating Committee?
It is clear to my reading that the intent of the controlling legislation of the Nominating Committee was to have staggered 6-year terms for its members so as to maintain continuity and institutional memory. The term of a committee appointment exceeds that of a Governor’s which mitigates against political capture. The desynchronizing result of the Governor’s recent appointments is to put 4 of the Committee’s members in the same track to expire in 2022.
I raised the issue in the article above whether any Governor is free to dismiss members of Boards and Commissions for which terms of memberships are defined in statute. In a similar vein, although initial appointments to at some panels like the Nominating Committee require consent by the House and Senate, is it necessary for that consent to be given every year of a given member’s term? It was reported that consent for one of last year’s Nominating Committee members was withdrawn by the Senate giving Governor Bevin an additional slot to fill with a preferred candidate.
Tom Loftus of the Courier-Journal recently reported that Governor Bevin “has scrapped, or significantly changed, the makeup of … important state board[s] that he inherited from his predecessor Steve Beshear. Other boards he recently changed include the Kentucky Horse Racing Commission and Kentucky Tourism Development Finance Authority.” It seems to me that allowing premature dismissal or withdrawal of consent renders these public bodies overly susceptible to political manipulation. If it is indeed acceptable to terminate a Board or Committee member at will irrespective of where they are in their term of appointment, what is to keep a Governor from replacing more than the UofL Board Trustees who resigned to enable the appointment of minority Trustees. Why might not Governor Bevin attempt to replace some or all of the Trustees that Board member and UofL Foundation Chairman Robert Hughes has publicly and quite disparagingly referred to as the “Chardonnay Set?”
(Dr. Hughes accuses some trustees of embarrassing Dr. Ramsey and rest of the Univerity Community. In my opinion Dr. Hughes, you have it backwards. The only unprofessional and inappropriate language I have heard personally in this matter has come from you and a handful of other Ramsey supporters. In my opinion Dr. Hughes, whether or not Dr Ramsey decides to step down from his positions, you should do so now. The name-calling and accusations against your colleagues are disgraceful.)
Who out there can give us a definitive opinion on this important issue? House Speaker Stumbo is suing the Governor over things that seem a lot more trivial or technical than this. What does the law say?]
Emeritus Professor of Medicine
University of Louisville
9 May 2016