UofL Board of Trustees Under The Microscope.

Kentucky Gov. Steven Beshear is taking some heat for not including an African-American among his latest round of appointments to the University of Louisville Board of Trustees. Criticism from the community included claims that by passing over three available African-American nominees for the positions, that the Board was without an African-American member for the first time in many years and in fact violated state law.  This is incorrect.  The Board currently has as its student representative a female African-American trustee who, if she follows precedent, will not be a potted plant.  Nonetheless, attention to the makeup of the Board is a matter that should be of considerable concern to the public.  The UofL Board itself has been regularly in the news for some time, and is likely to remain there a good bit longer given rising community concern over University governance (or frequent apparent lack of governance), executive compensation, tuition increases, political contributions by Board members, probation of academic units, lawsuits against major former partners, scandals and outright criminal activities involving a few employees and faculty, high-profile separations or dismissals– including some with golden parachutes and non-disclosure agreements, a troubled partnership with a religious organization that is tearing the downtown medical center apart, or whatever other story-of-the-week keeps the pot of concern bubbling.  I confess to helping keep the heat on.  Fueled by secrecy and non-stop controversial revelations, our University’s reputation is being damaged.  Demands for accountability have past the point that they can be ignored.  It is therefore useful to examine how it is that board members of the various state universities and the community and technical colleges are selected.  The process is defined in detail by state law but it is obvious to me that existing statutory requirements are being be followed loosely if at all.  Let me explain.

Postsecondary Education Nominating Committee.
The Governor does not have a completely free hand in selecting new board members or the reappointment of existing ones.  However, neither can it be said that appointments are completely free of the influence of political politics.  As directed by KRS 164.005, when an expired term of an existing board member of one of the Commonwealth’s institutions of higher education opens, or there is otherwise a need to fill an open position, the Governor gets to select a new trustee from a list presented by the Postsecondary Education Nominating Committee. The Governor is not permitted to appoint an individual who is not on the list. By statute, for each institution, the number of nominees presented must be three times the number of open positions for that appointment cycle. Thus, for the recent round at UofL there were three slots available to replace or reappoint Trustees whose terms of office had expired. A pool of 9 potential candidates for appointment was given to the Governor.

The Nominating Committee itself is appointed solely by the Governor for terms of 6 years subject to confirmation by the House of Representatives and the Senate.  Given the basic four-year term of a Kentucky Governor, the service of a Committee member spans two or more gubernatorial terms.  Eligibility to serve is constrained in a number of ways. Conflict of interest is addressed over financial interests, having no relative who is employed by a public postsecondary institution, and having no more than two members with an undergraduate degree from the same state institution serving at the same time. Other quite specific requirements are that the seven members of the Nominating Committee must reflect “inasmuch as possible, equal representation of the two (2) sexes and no less than proportional representation of the two (2) leading political parties of the Commonwealth based on the state’s voter registration and to assure that appointments reflect the minority racial composition of the Commonwealth. In filling vacancies to the committee, the Governor shall act so as to provide, inasmuch as possible, equal representation of the two (2) sexes by appointing a member of the sex that is the lesser represented at the time of the appointment. If the remaining membership already has an equal number of males and females, the Governor may appoint a member of either sex.”  On top of this, the 7 members must come from each of the 7 Supreme Court districts. The Governor is required to solicit advice for his Nominating Committee appointments from a list of 8 organizations and advocacy groups. Support services for the Committee are provided by the Governor’s office staff.

Current composition of Nominating Committee.
No doubt this is a tricky balance for any governor to make!  I was not able to find a list of current membership of the Nominating Committee on the Internet and was required to file an Open Records request to obtain one. The current composition of the Committee is five women and two men. As far as I can determine, all seven are white.  (I hope I am wrong.)  I have no information about the political affiliations of the current members, although attorneys are well represented and some committee members (or members of their families) are active in the political process. Current members are well distributed around the state.  A single individual from any of the Supreme Court districts would presumably have much influence on who serves on the Boards for Universities and Community Colleges in their regions. The terms of at least one member on the list provided expired Feb 20, 2015.

Nominating Committee constraints on their trustee nominations.
Compared to the several mandates about its own composition, the Nominating Committee has only a single requirement in its enabling legislation that would constrain the composition of their trustee nominations to the governor.  The Committee shall provide “inasmuch as possible, an equal number of male and female nominees. If the Governor needs nominees of a particular sex in order to make an appointment, the committee shall only provide nominees of that sex.” 

If the Governor does not make an appointment from the list within 60 days, the Nominating Committee selects the trustee to serve.  Aside from a requirement to balance the gender of trustees, there is nothing in the committee’s statutory charge that requires it to consider minority status, place of residence, or the political party of its nominations even though institutions such as UofL have their own additional statutory requirements for composition of their Boards of Trustees.  I must assume that as responsible citizens, the members of the Nominating Committee would be sensitive to and accommodate the needs of the schools and their communities.

Statutory Requirements for UofL Board of Trustee composition.
The make-up of UofL’s Board is also defined in some detail by state statute 164.821.  The Board must contain 17 members appointed by the governor from the list presented by the Post Secondary Education Nominating Committee described above, and additionally one each rising from the faculty, staff and student body for a total of 20 members. Terms of office for the governor’s appointments are for 6 years.  The governor is permitted to fill unexpected vacancies or resignations from the Board immediately for the duration of the specific term, subject to qualifications of the statute.

Other constraints on University Board composition.
Specifically, “The Governor shall make his at-large appointments so as to divide the citizen representation upon the board to reflect proportional representation of the two (2) leading political parties in the Commonwealth based on the state’s voter registration and shall reflect no less than proportional representation of the minority racial composition of the Commonwealth. The membership may include one (1) graduate of the institution who resides outside the Commonwealth, but he shall not be reimbursed for out-of-state travel.”  Despite the attention given to the gender of potential nominees presented to the governor within the statute constraining the Nominating Committee itself, there is no mandate in this UofL-specific statute for the governor to ensure equal gender balance on the Board– but what governor would not be paying attention to this factor over time?  Parenthetically, one might reasonably ask, given the existing gender representation within the at-large UofL Board, why the Nominating Committee did not present a list of nominees containing only women?

[Curiously, hidden away in the statute defining membership in the Board of Trustees is a clause that seems to me to throw a monkey wrench into the University’s initiatives in commercial research, generation of clinical income, and other financial endeavors within its myriad of non-profit and for-profit corporations.   “(7) Unless specifically approved by the board of trustees under the provisions of KRS 164.367, no member of the teaching or administrative staff of the university shall be directly or indirectly interested in any contract with the university for the sale of property, materials, supplies, equipment, or services, with the exception of compensation to the faculty, staff, and student members.”  Seems to me this gives the UofL Board broad jurisdiction and a mandate to oversee all of the University’s so-called “private” functions.  Who can tell us what this means, or for that matter if anyone is paying attention to this particular law?]

Current UofL Board composition.
According to today’s posting on the UofL website (which includes the addition of the three new members) the current Board of 20 individuals contains 6 women and 14 men.  I have no information about their political party affiliation or for that matter their possible independent voter registration status.  All three of the faculty, staff, and student Board members are women. While I admit is is presumptuous of me to attempt to identify the ethnic or minority status of individuals I do not even know, it appears to me that at least one member of the Board is African-American.  Another is being categorized as Hispanic.

Who were offered as nominees for the three new positions?
I obtained a list of the 9 nominees through an Open Records request. There were 7 men and 2 women. As far as I am aware, three were African-American.   All three incumbents were nominated for reappointment, including a woman and an African-American man. Of the nine nominees, three men were appointed— two white, and one characterized by the Governor’s office as Hispanic.

Why are things so out of whack in the Nominating Committee and UofL Board?
I am the first to admit that I am not very comfortable counting heads according to such criteria as sex, race, ethnic background, sexual preference, or other individual or personal characteristics.  However, the scientist and even the citizen in me says that if we do not do some counting, we will never be able to address and remove the structural barriers in our society that discriminate against individuals or groups.  No one can honestly deny that such discrimination exists all around us.  Just as I believe as a physician that we are as a society no healthier than the sickest living among us, so I believe as a citizen that we are no more empowered individually than the most disenfranchised of our brothers and sisters.

I do not believe that prejudice of any sort influenced the Governor in his appointments above. He being challenged with not having followed the law.  I suspect that he is uncomfortable with some of the criticism that is being voiced. Who would not be?  Clearly some of the requirements of the controlling statues have been ignored or overlooked for some time at UofL and elsewhere in the Commonwealth.  As a practical matter, is it even logistically possible to balance in any given year the 5 or more controlling factors constraining membership in the Nominating Committee?  I do not offer this as an excuse, but rather to keep in view the big picture over time.

Why would the Governor take the risk of criticism?
I do not know the Governor personally at all. Neither have I discussed this matter with anyone in his government. I admire him as a leader.  I believe he is not afraid to make difficult decisions.  In my opinion, in this matter there is an additional dynamic in play.  Over the few last board-appointment cycles during which I have been paying attention, Governor Beshear has been naming outside candidates to UofL’s Board of Trustees— individuals who have not been afraid to ask questions, request accountability, or otherwise shake up a recalcitrant and damaging status quo.  In my opinion, and in the opinion of many others, this has been exactly the right thing to do.  It is usually wrong and even dangerous to project one’s own thinking or feelings onto others, but I have to think the Governor is also unhappy with the direction UofL has taken in the past few years under the leadership of President James Ramsey.

What then were the Governor’s choices?
Three of the 9 nominees were incumbents.  One of these is a proponent of more openness and accountability and was reappointed.  Another appointment was the Governor’s current Secretary of Finance who likely will soon leave that office. No doubt he is a known quantity to the Governor and one who in my experience is not afraid to ask questions and to do the right thing for the community.  The third new trustee is a very successful Louisville businessperson, a designated “minority” of whom I know nothing.

Of the three African-American nominees, one was an incumbent Trustee, himself the President of a College and who has publically expressed his gratitude to President Ramsey and the University for their support of his institution.  A second was an earlier member of the Board of Trustees, who, along with the third nominee, was strongly affiliated with the University and its sports programs.  One of the remaining non-African-American nominees was a semi-retired faculty member like me seeking change.  I know nothing about the single non-incumbent woman nominee.  I am sure that any of the nine nominees have the qualifications to serve, but in my view, the appointment decisions were made with a mind to bring new independent blood into the Board of trustees and its University.  It should be no surprise to my readers that I think that such an emergency transfusion is badly needed.

I do not mean to imply that having a Board that looks and walks like our community is not of critical importance– it is.  I think the enabling statutes that shape both the Nominating Committee and the individual boards of trustees need to be carefully looked at to allow us to feel confident that there are no structural barriers that limit opportunity for anyone. We need to follow whatever guidelines are in force. I do not deny that appointment to state boards and commissions is an intensely political process. After all, how many other positions require the political party of the potential appointee to be disclosed?  These appointments are usually constrained by statute favoring one outside group or another, but are also often thought of as prize patronage items.  When I was interacting daily in Frankfort during the tenure of Governor Patton, the office that processed such appointments was the only one physically located within the Governor’s personal office suite.  Even the Chief of Staff had an office down the hall!   I have little doubt that now and in prior administrations when considering individuals for appointments to boards and commissions, that political contributions were considered.  I will be happy to be proven wrong.

In conclusion.
Since there are so many current exceptions to the statutes regulating appointments to university boards that create precedent and would also have to be undone, I do not see any of the recent appointments at UofL being reversed any time soon. Indeed, which imbalances would we have to fix first? Sex? Race? Political party?  This does not mean any of us do not have a right to be unhappy about the current situation at UofL or the process at other universities.  I am certainly not happy and I am by no means alone in this regard.  I want a fresh start in governance and priorities at the University of Louisville. Its Board of Trustees has ultimate responsibility in both matters. It appears that the currently appointed Board is ready to take the fresh looks necessary. I encourage them to do so.

Peter Hasselbacher, MD
President, KHPI.
Emeritus Professor of Medicine, UofL.
August 6, 2015