The Council on Postsecondary Education, the Law and the Governor
Kentucky Attorney General Jack Conway* yesterday released an opinion finding that the Council on Postsecondary Education (CPE) violated Kentucky law when it hired Brad Cowgill as its chief without conducting a statutorily required national search. (The opinion is not yet of the AGs site so you can find it here). What is more interesting is the comment made by Conway in an interview with CJ reporter Stephenie Steitzer. He told her that if the CPE ignored his opinion, the matter could end up in the courts, or "without elaborating," he suggested that "Beshear has the authority to "reorganize" the council."
What he was eluding to was the governor's broad power to reorganize executive branch units under KRS 12.028, which gives him or her the authority to "between sessions of the General Assembly, temporarily effect a change in the state government organizationalstructure as described in subsection (1) of this section if such temporary reorganization plan is first reviewed by the interim joint legislative committee with appropriate jurisdiction." While such a reorganization would last only until the next meeting of the general assembly, Kentucky courts have given the governor a wide berth in these cases. The power was last exercised by Governor Fletcher in 2004 when he abolished the old Kentucky Racing Commission replacing it with a new Kentucky Horse Racing Authority.
The CPE, currently under the Department of Education, is among the units subject to the law (KRS 12.020). The governor could abolish the CPE, dismiss Cowgill (who does not have a signed contract), and establish a new board with a new interim director to handle the CPE's duties. The few judicial decisions and AG opinions on the reorg law suggest that the governor may or may not be able to dismiss the appointed members out of hand, but he can certainly ask them to resign (Fletcher's course in the racing commission case) or make them a minority on the new board by increasing its size and appointing new members (subject to the law that boards be evenly split between the top two political parties).
Clearly this would be a "nuclear option" but one available if the current jostling between the governor and the CPE ripens into a crisis. The reorganization law is rooted in the "ripper bill" of 1932, when Gov. Ruby Laffoon nakedly stripped the lieutenant governor and the auditor of much of their powers; in that case (as well as later cases), the high court found that law constitutional, implicitly acknowledging the plenary power of the executive to organize his branch when authorized by statute.**
* Pictured to the right in a poster supporting the ALA/Kentucky Library Association's READ campaign.
** Talbott v. Laffoon, 79 S.W.2d 244 (Ky.1934).
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