Legal issues cloud Matt Bevin's U of L order

Joseph Gerth

Gov. Matt Bevin's critics on Friday accused him of an illegal power grab after he announced what is believed to be an unprecedented dismantling of the University of Louisville's board of trustees, which he said he would replace with a board of his choosing.

But his backers defended the move, saying he acted within the law to fix a problem that has been festering at the school since the administration of Gov. Steve Beshear.

"I'm appalled by the apparently illegal maneuver by Gov. Bevin to remove all the members of the board of trustees without the legislatively mandated hearing before the Council of Postsecondary Education. I believe this is a politically motivated effort to undermine the independent governance of U of L,"  said Tracy K'Meyer, a history professor at the school who called the move a "coup."

But Senate President Robert Stivers, R-Manchester, praised Bevin's move as a "bold action," saying, "It was something that needed to happen with all that has occurred."

Despite the fact that state law is written in an effort to keep politics out of appointments to university boards, such positions have long been used by governors to reward givers. The spots are coveted because trustees receive access to season tickets for sporting events.

Last year, after former Gov. Steve Beshear removed the Rev. Kevin Cosby from the board at the end of Cosby's six-year term, every member on the board had contributed to the campaign of Beshear's son, Andy Beshear, who was running for attorney general.

Bevin announced at a press conference on Friday morning that he had issued executive orders essentially firing all the members of the school's board of trustees and appointing an interim board to operate the university until a new board can be constituted.

In the news conference, when asked if the positions had been used too much as political rewards, Bevin said, "No question. No question."

But those familiar with state law and higher education say they don't believe a governor has ever tried to reorganize a state university's board of trustees by using executive orders.

At least three governors have sought voluntary resignations in efforts to reorganize boards of trustees and one, former Gov. Brereton Jones, convinced the state legislature to pass a bill reorganizing all the state universities' boards so he could remove former Gov. Wallace Wilkinson from the University of Kentucky's board of trustees. Wilkinson had appointed himself to the board, just before leaving office.

This case could likely end up in court with the state Supreme Court deciding if Bevin, in fact, overstepped his authority in reorganizing the U of L board and the Kentucky Retirement Systems board of directors, which he did later in the day Friday.

Andy Beshear hinted at that in a statement.

“Today Gov. Bevin took unprecedented actions directed at two important governing boards," he said. "Lawmakers mandated that these boards be independent. My office is therefore closely reviewing today’s actions."


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And Craig Greenberg, one of the U of L trustees removed by Bevin, said that he and other former trustees spoke on the phone Friday about the option of taking legal action to block Bevin’s moves but that no decision was made.

Beshear already has sued Bevin over his reorganization of the Kentucky Workers' Compensation Nominating Commission. Franklin Circuit Judge Phillip Shepherd has suspended that reorganization until he can rule on the merits.

Sheryl Snyder, a Louisville lawyer who has litigated state government issues, said he believes Bevin's order on U of L will be struck down.

In Kentucky, the governor has traditionally exercised broad power to reorganize state agencies, but Snyder said no court has ever ruled that university boards can be reorganized under that statute.

"I think there are serious constitutional-slash-legal questions about whether he can do that," Snyder said.

Snyder said he doesn't believe state universities are among the state agencies a governor is allowed to reorganize. Additionally, he said, Bevin may have run afoul of another statute that says trustees can be removed only for cause and after they receive a hearing.

"In essence, he has removed all 17 trustees without following the statutory procedure for removing the trustees," he said.

Sam Marcosson, a law professor at U of L, agreed with Snyder.

"I believe the governor's action is blatantly illegal under state law that is as clear as it can be, so the only questions are whether someone will sue him. ... It's hard to predict the future, but I would be surprised if this plan, or anything resembling it, is ever implemented," he said.

Former state Rep. Bob Heleringer, however, said the case wouldn't be cut and dried. "All I know is I served under five governors and I never knew them not to be able to do pretty much damn near anything they wanted to."

Joseph Gerth can be reached at (502) 582-4702. Reporters Andrew Wolfson and Tom Loftus contributed to this report.