Gov. Matt Bevin and Attorney General Andy Beshear will be back in court soon as the Kentucky Supreme Court weighs in on whether the governor’s attempted overhaul of the University of Louisville trustee board last summer was legal.
A trial court ruled last year that Bevin didn’t have the authority to remove members or abolish state university boards. The governor appealed the decision and the legislature passed a law giving the governor broader powers to retool university boards.
Beshear has characterized Bevin’s actions as a “power grab.”
In a motion filed with the Kentucky Supreme Court on Thursday, Bevin’s lawyer said “the only power grab here is on the part of the Attorney General.”
“[Beshear], as a subordinate executive officer, is attempting to second-guess a policy decision of the chief executive of the Commonwealth under the guise of trying to uphold the law,” Bevin’s general counsel Steve Pitt wrote.This will be the second time Beshear’s challenge of a Bevin action will be heard by the state’s highest court. Last year, the panel of seven justices ruled that the governor didn’t have the authority to make mid-year cuts to higher education budgets.
Bevin abolished the U of L board last June, citing dysfunction on the board. He later created a new board and appointed all new members. Beshear then sued Bevin over the moves.
Franklin Circuit Court Judge Philip Shepherd ruled that the governor’s power to reorganize state boards didn’t extend to public universities like U of L.
Bevin maintains he has the authority to reorganize state boards while the legislature isn’t in session, citing a state law that allows “the creation, alteration or abolition of any organizational unit or administrative body.”
The governor’s motion also says a recent scathing audit of the U of L Foundation shows that the governor needed to install a board that “was not dysfunctional.”
“The damaging failings and dysfunctionality of the Board that existed prior to the Governor’s reorganization are well known,” Pitt, Bevin’s general counsel, wrote. “The Governor used the power given to him in KRS 12.028 to fix these problems, not to grab more power for himself.”
Beshear argues that the reorganization law Bevin cites doesn’t apply to state university boards and that the governor removed trustees before the end of their appointed terms.
“In fact, the legislature has intentionally omitted the U of L Board and all other public university governing boards from this statute and similar statutes enumerating executive branch agencies,” Beshear wrote in a brief filed earlier this month.
Bevin also argues that the case is moot because the legislature passed — and the governor signed into law — a bill that reorganized the U of L board again after last year’s lower court ruling.
Beshear said the case should go forward to keep the governor from making similar actions.
“Without a decision, the Governor could therefore issue new executive orders tomorrow reorganizing a public university board, or even a university’s academic or administrative departments,” Beshear said.
The Kentucky Supreme Court hasn’t yet set a date for oral arguments on the case.