Kentucky Attorney General Andy Beshear and the general counsel of Gov. Matt Bevin faced off in oral arguments before the Kentucky Supreme Court on Friday, as Beshear’s lawsuit challenging the legal authority of the governor’s executive orders last summer reorganizing the University of Louisville’s board of trustees finally draws near a conclusion.
The University of Louisville has undergone significant changes and uncertainty since last summer, when Gov. Matt Bevin first issued executive orders abolishing its board of trustees and creating a new one with entirely new appointees, along with a pledge that UofL’s then-president James Ramsey would resign to the new board.
Beshear filed a lawsuit against Bevin and won that fall in a ruling by Franklin Circuit Judge Phillip Shepherd, which led to the old UofL board of trustees being placed back into power through the end of the year. However, that board was then replaced again when the Kentucky General Assembly passed a law in January once again abolishing the board and allowing Bevin to appoint his own trustees again.
Before the justices on Friday, Beshear argued that despite another law — Senate Bill 107 — passed by the General Assembly this year allowing Bevin to similarly abolish and replace public university boards, the governor was still asserting his authority to reorganize such university boards through KRS 12.028 as he did last year, a statute that Shepherd ruled did not apply to public colleges. He argued further that Bevin might attempt the same action with other university boards and imperil the accreditation of those schools, just as he had with UofL last year, which was placed on probation by its accrediting agency, SACS, due to the governor’s actions.
Steve Pitt, the general counsel for Bevin, argued that the matter before the court was now moot due to the passage of the legislation earlier this year. However, even if the court did not dismiss the case on those grounds, Pitt argued that Bevin was legally justified to reorganize UofL’s board under 12.028, as would any other governor in the future.
Near the end of the oral arguments that lasted just over one hour, Justice Lisabeth Hughes told Pitt that she was inclined to agree with Pitt on his arguments about the mootness of the case, but added that she was confused by his apparent assertion that a “governor can ignore that 2017 legislation that pertains to all universities” and use the 12.028 statute, which would suggest the matter was not moot.
Pitt replied to Hughes by stating that the language in 12.028 “did, and does, allow reorganization of university boards,” but with the adoption of SB 107 and its more specific language on reorganizing university boards, “I don’t think that there’s any reasonable expectation that any governor – this governor or any other governor – would ever use 12.028, nor would it get very far.”
Speaking to reporters after the hearing, Beshear referenced this same exchange between Hughes and Pitt, asserting “there’s a question of whether in court today the governor conceded that he cannot use the reorganization power as to universities. Now, none of their briefs state that. All of them state that he can still use that power. So I think the governor is a little bit confused at the moment about what his position is.”
Pitt later disputed Beshear’s interpretation of the matter, saying that while the old statute still applies, “our position is that new specific statute would be the one that this governor or future governors would use if circumstances came about that a board member had to be removed or a board had to be reorganized.”
Beshear also told reporters that while most of the accreditation issues of not just UofL, but all public universities in Kentucky would hang in the balance if the court ruled for Bevin, they would be resolved if the justices ruled in his own favor.
“As we know, SACS has stated that the majority of their accreditation issues stem directly from the governor using the reorganization power to wipe out the board,” said Beshear. “If the Supreme Court says that the governor never had that power, then that ought to satisfy SACS that this wasn’t the university’s fault, and that it still meets those guidelines.”
Pitt called Beshear’s interpretation of the accrediting issue “poppycock,” claiming that the SACS president had no problem with SB 107. While Beshear said that Gov. Bevin’s actions were to blame for UofL being placed on probation last year, Pitt said that a May letter from SACS to UofL cited “several other reasons why the University of Louisville is on probation now, relating to improper governance by the former board.”
The May letter from SACS that Pitt referenced — in addition to another one sent in June — actually makes no references to UofL’s probation, though, it did list several areas in which the university’s governance might be out of compliance with the accrediting agency’s principles and required corrective actions. The SACS letter to UofL in December that placed the school on probation clearly listed the four areas in which Gov. Bevin’s actions had put the university out of compliance and caused the 12-month probation.
Beshear said that even if the justices decided to dismiss the case on the grounds that it was now moot, “the last word on this case will be the trial courts’ ruling that Gov. Bevin violated the law, and that’s something that the administration will have to deal with.” Pitt countered that this would not happen, saying that recent case law is very clear that the Supreme Court would vacate the lower judgment.
Asked if UofL’s board of trustees could have yet another transformation if the court rules in the governor’s favor, Beshear said that would be possible if Bevin strongly disagreed with an action of the board and wanted to replace them using the same kind of executive orders.
“If (the trustees) were to bring back up that KFC Yum! Center lease and vote it down, and the governor really wanted that lease, he dissolves the board and you have all new members,” said Beshear. “What it would mean is that the membership of that board of trustees would always be in flux, at the whim of the governor.”
This is the fourth lawsuit that Beshear has filed against Bevin related to the governor’s executive orders, ultimately winning the first one before the Supreme Court last year, relating to Bevin’s higher education appropriation cuts. Bevin has repeatedly asserted that Beshear’s lawsuits are frivolous and politically motivated stunts intended to harm the governor and build his own profile before the next gubernatorial election in 2019.