Is the long nightmare over, or has it just begun? The blockbuster announcement yesterday by Governor Matt Bevin that University of Louisville President James Ramsey had “resigned” shook the Louisville and Kentucky communities. The issues surrounding beleaguered President Ramsey’s tenure had effectively left the University rudderless. The possibility of change was received with relief by those wanting it, and surprisingly, accepted in concept by a few Ramsey supporters in the name of a clean sweep that included dismissal of the entire Board of Trustees of the University but which kept the UofL Foundation intact. However, as the executive orders that directed the dismissal of the Board and outlined the planned path forward were released for public examination, to some of us, no resignation was apparent and it appears likely that Dr. Ramsey will remain in place for the forceable future. Illegal as it certainly is but including a Catch-22 paradox, any efforts to challenge Governor Bevin’s fait accompli may prolong indefinitely Dr. Ramsey’s presidencies of both University and Foundation. Allow me to explain.
The facts surrounding the announcement of Ramsey’s change in status and the qualifiers attending it have been reported by the Courier-Journal, WDRB, and Insider Louisville although some of the initial statements will require clarification. Documents released to the public include a press release from the Governor’s office; a letter from Dr. Ramsey to the Governor describing the terms and conditions under which he is willing to tender a letter of resignation to whatever legally constituted Board of Trustees emerges from the process under way; an executive order dismissing the current Board of Trustees and defining a new smaller permanent Board; a second executive order appointing a “temporary” three-member Board, that unless challenged, will be a legally empaneled board; and an email sent by President Ramsey to the University Community.
Is it legal?
By way of outline, I offer the following comments suggesting that he path forward is fraught with uncertainty. First and foremost is the issue of whether any of the changes by the Governor are legal. Since Ramsey has promised to offer his resignation to a “legally reconstructed Board” with the potential of being accepted, everything ultimately hinges on this distinction. Several real lawyers have already opined that the statutes defining the composition of the UofL Board, how it is to be empaneled, and how existing Trustees may be removed are clearly enshrined in existing law that the Governor is not free to ignore. The UofL Board is not the first such governance or oversight body that the Governor has replaced wholesale while ignoring its controlling law. At least one of these has already been challenged in the courts. I have pointed out that the very committee that will present Governor Bevin with names of potential new Trustees was just reconstituted illegally.
Ironically, Governor Bevin precipitated in the current crisis and exacerbated the putative “dysfunction” of the Board of Trustees himself by declaring it illegal. One would think that he would have nailed down an unimpeachable legal position before proceeding. He could have easily appointed the minority Trustees that would have removed any taint of illegal Board composition. Instead, he has dug the hole deeper. If no one challenges his actions in court, his dismissals, present temporary appointments, and plans for a new permanent board become in effect the new legal. A challenge however, no matter how appropriate, dooms the University and its community to a more prolonged agony. Not legal? Ramsey can stay at his discretion. Comments by the Governor and Ramsey supporters already envisage that Ramsey might remain as President if his offer of resignation is rejected by a new Board– legal or not.
Where do the 10 new appointed Trustees come from?
There has been some confusion in reporting about the process whereby candidates for the position of University Trustee are selected. The process is well defined by statute. Governor Bevin himself appears not to be aware of the Board nomination and appointment process. Potential names are not presented to a Governor by the relatively independent Council on Postsecondary Education (CPE) as stated several times by the Governor, but by an entirely separate Governor’s Postsecondary Education Nominating Committee, which as its name suggests is entirely a creature of the sitting Governor. Governor Bevin has just terminated the unexpired membership of a few of the committee members and turned it into a hand-picked and clearly illegal white, male, and Republican entity.
Is the path to appointment greased?
The Nominating Committee is required to present three names to the Governor for each opening on the UofL Board. I attended the last meeting of the Nominating Committee. The Committee does not collect potential names itself. It is staffed by the Governor’s Office which collects and vets the names of nominees for the committee. Deliberation regarding the candidates is performed behind closed doors with the Governor’s representatives in attendance and participating. Individuals with knowledge of the process have told me that the Governor gets whoever he or she wants. I have no reason not to believe that is true.
Can this really all be done in two weeks?
The Postsecondary Nominating Committee is subject to Open Meeting law. That requires published notice of the date and place of the meeting. When I checked last week, no such notice had been given. It is not clear to me how much notice must be given. Even so, if we are to believe this entire process can be pulled off in the “temporary” two weeks that has been mentioned, this would imply that the ultimate nominees/Trustees have already been chosen. I would not be surprised.
The floor has been lowered.
In further irony, Governor Bevin rescued Dr. Ramsey from a vote of no-confidence by the Board of Trustees (that was expected to pass) on the grounds that the number of minority racial members on the Board was illegally underrepresented. That could have easily been fixed but was not. Governor Bevin wants the current Board of 17 potential gubernatorial appointees reduced to 10. No matter what benchmark is used to define the minimum number of racial minority members required, or how that qualification is defined, the absolute number of minority representatives is now less than it was. Fortunately a Governor is free to appoint as many as needed individuals to represent the community (I think), but why enshrine a minimum in the stone of statute?
This matter is still shaking itself out, and I cannot predict what will happen. Some individuals are assuming– if not hoping– that good will and implied intention will win out in the end. I wish I could do so too. I would like to believe that our Governor would not allow a sham resignation to proceed, or to permit or enable any of the shenanigans that I have come to expect from the UofL administration, but I must admit that I am worried. I liked it when difficult questions were being asked. Those who were asking– however professionally and politely they did so– have now been shut down. In his executive orders simultaneously delivered to the press and the dismissed Trustees, Governor Bevin stated he will be fully compliant with the law… and follow it to the letter. His actions belie his words.
Peter Hasselbacher, MD
Emeritus Professor of Medicine
University of Louisville
18 June 2016