JUDGE HORNER’S ROUNDUP FOR WEEK OF APRIL 26, 2008
On the heels of the last-minute failure of an effort to reform the state’s public employee pension system, Gov. Steve Beshear has said that he might be willing to call a special session of the General Assembly if prior agreement can be reached by legislative leaders on a specific public pension reform bill, according to an Apr. 19 story by The Herald-Leader’s Jack Brammer. Beshear said on Apr. 18 that he would require legislative leaders to “get their act together and sit down with us and we come up with an agreed-upon piece of legislation that we all would stand up ahead of time and say we will support this and we will pass this.” Beshear said that he would only want one subject – pension reform – to be addressed and that he wanted a session no longer than the five-day legal minimum to pass such a bill. “I’m not going to waste the taxpayers’ money calling a special session just so we can come up and argue about it again,” he said.
Two of the five Democratic House leaders were immediately cool to the idea of a special session according to a story by The Associated Press’ Joe Biesk posted on Apr. 18 at The Cincinnati Enquirer’s nky.com. “It’ll cost $300,000 in a five-day session to do that,” House Majority Whip Rob Wilkey (D-Scottsville) said. “How much can you save by passing it now instead of January.” House Majority Caucus Chm. Charlie Hoffman (D-Georgetown) told Biesk that the issue was complex and needed even more careful study. “I would urge the governor to proceed with caution, and to talk to the interested stake-holder groups before rushing into something without proper study.”
Senate Pres. David Williams (R-Burkesville) supports the suggestion for a special session, according to Brammer’s story. House Speaker Jody Richards (D-Bowling Green) told Brammer that one might be needed but should be expanded to also address ethics reform and road projects.
The state Chamber of Commerce, the Prichard Committee on Academic Excellence, and state League of Cities are demanding that lawmakers return to Frankfort and resolve the pension issue. Factoring in the life expectancy of active and retired members – and their dependents – alive today of the Kentucky Retirement Systems, the unfunded liability of the systems is estimated at $26.6 billion. Experts estimate that the systems will be insolvent in about 10 years without a huge influx of cash. The $26.6 billion number is largely projected health insurance costs for these members and their dependents over their lives – not pension benefits. State government is self-insured for health costs liability for these covered active and retired teachers, state employees, many county/city employees, state police, and their dependents. These experts say that it is inevitable that lawmakers will have to eventually raise taxes to address a financial liability of such colossal proportions. The state budget itself for two years that lawmakers just passed was only about $19 billion.
Beshear announced on Apr. 21 that he was removing his predecessor’s chief of staff and Education Cabinet Secretary from state board appointments because they were not confirmed by the General Assembly according to statute. Former Gov. Ernie Fletcher – whom Beshear unseated by about 180,000 votes last November – appointed chief of staff Stan Cave to the Mine Safety Review Commission (“MSRC”) and Education Sec. Virginia Fox to the Council on Postsecondary Education (“CPE”) shortly before he left office on Dec. 11, but neither appointment was confirmed by the state House before the General Assembly adjourned. Both officials were confirmed, however, by the state Senate.
Beshear’s general counsel, Ellen Hesen, cites KRS 11.160(2)(i), as the authority under which both appointments have been rescinded. Statutes pertaining to gubernatorial appointments to both boards require both legislative chambers to ratify the Governor’s action for the appointments to be valid. Otherwise, the appointments are null and void, according to Hesen’s opinion.
Cave said his removal is illegal because the following-quoted Section 93 of the state Constitution says that only Senate confirmation is necessary, according to a statement that he read into the record of the MSRC when it met on Apr. 18: “Inferior state officers and members of boards and commissions, not specifically provided for in this Constitution, may be appointed or elected, in such manner as may be prescribed by law, which may include a requirement of consent by the Senate, for a term not exceeding four years, and until their successors are appointed or elected and qualified.”
Cave seems to be contending that the phrase, “in such manner as may be prescribed by law,” does not give the General Assembly to also require House confirmation in addition to that of the Senate. That contention was directly rejected by House Speaker Jody Richards (D-Bowling Green), according to an Apr. 22 story by The Courier-Journal’s Stephanie Steitzer, who said that the constitutional provision specifically authorizes the General Assembly, if it deems necessary, to involve the House in the confirmation process.
Cave also read the following comments into the MSRC record, according to Steitzer’s story: “This constitutional issue has ramifications beyond the Mine Safety Review Commission and will ultimately have to be decided by the Kentucky Supreme Court. While I know that I am correct in my legal opinion, whether I take action on this matter is a decision I have not made at this time.”
One other glitch may complicate Cave’s chances for legal vindication even if he is proven to be correct on his constitutional argument. The Senate confirmed Fletcher’s appointment of him at 12.46 a.m. on Apr. 16 – 46 minutes beyond the constitutionally-fixed Apr. 15 deadline for lawmakers to adjourn this year’s regular legislative session, according to a story by Brammer that was posted on Apr. 21 at the newspaper’s polwatchers.typepad.com. Other action by both chambers that occurred after midnight is now under review for legal sufficiency by state lawyers. Both bodies adjourned about 1:00 a.m. that evening after stopping the “official” clocks on their walls for about an hour.
Fox made no press comments about her removal. State GOP chairman Steve Robertson criticized Beshear saying that he had “improperly and illegally removed” both officials, according to Steitzer’s story. Robertson added, “The hypocrisy of this bunch never ceases to amaze me.”
Conway to CPE: Cowgill Perm. Appt. Violates Law
State Atty.-Gen. Jack Conway issued an Apr. 24 12-page formal opinion to Beshear that the CPE violated state law by deciding to award a permanent contract to its interim president, Brad Cowgill, without hiring a national search firm and conducting a national search, according to Brammer’s Apr. 24 story at polwatchers. Beshear made both of these legal points earlier when criticizing the CPE’s Apr. 14 action to hire Cowgill, a lawyer who has never been a professional educator. Conway said at a press conference that the CPE “was duty bound to conduct a national search.” Conway did not state what Beshear or the CPE should do next but noted that Beshear has the executive authority to re-organize the CPE.
Beshear held a press conference after Conway’s opinion was issued and said, “There seems over the last four years that an attitude has developed in state government that if you don’t like the law, you can just ignore it,” according to an Apr. 25 story by Brammer and Art Jester. “Well, the law is now clear ... and I am calling upon them – actually I am demanding of them – that they follow the law and that they proceed to conduct a nationwide search and find us the best candidate that we can find to head up our higher education system.” Beshear said that Cowgill’s name should be excluded from consideration. Otherwise, many possible candidates would not even apply by believing that a search would be only a ruse for Cowgill’s eventual selection again.
Beshear said that, if a national search is not begun by the CPE, he will explore other options. Beshear acknowledged that disbanding the CPE as it now exists and re-creating it all by executive order is an option, but would not address the likelihood of employing that measure. “I’m going to presume that they will follow the law,” the Governor said.
CPE chairman John Turner said his group would hold off on executing a contract with Cowgill until the objections to Cowgill’s appointment are cleared up. Turner also said that he hoped that Beshear would have a meeting with the CPE members, and Beshear said that he would.
Cowgill had no comment on Conway’s opinion or Beshear’s comments. Cowgill was Fletcher’s budget director until he was appointed CPE’s interim president on Sep. 1, 2007. At one time Cowgill, of Lexington, was outside counsel to the Fayette County Board of Education. He also served on an advisory board for the Lexington Community College. These are the only education-related activities that Cowgill ever had until he took over the CPE.
The CPE is the coordinating body for the state’s eight publicly-supported universities and the Kentucky Community and Technical College System (“KCTCS”). It has the power to fix the budgets and tuition rates for each educational entity within its governance.
Cowgill’s predecessor, Thomas Layzell, wrote a letter to Beshear last week in which he warned that the controversy over Cowgill could reverse the state’s higher education gains, according to an Apr. 24 story by Steitzer whose newspaper obtained the letter from the Governor’s office through an open records request.
“I have been following the articles about the disagreement between you and the Council, and I write out of profound concern for the potential it has to retard, perhaps even reverse, the progress Kentucky has made toward the achievement of its postsecondary reform goals,” wrote Layzell, who retired last year. While Layzell acknowledged that the legal cloud surrounding Cowgill’s status was important, Layzell said that that the resolution of the controversy in a manner that serves the state’s long-term higher education mission is “equally important.”
Layzell’s letter was written before Conway’s opinion was released, but Layzell makes reference to whatever it might be as follows: “Whatever the Attorney General may decide on the legal issues, I hope that it will be a starting, not an ending, point for you and the Council to discuss and resolve any differences you may have.”
Beshear spokesman Dick Brown said that Beshear had no comment on the letter.
Even as buzzards gathered overhead waiting to devour his job carcass, Cowgill took the unusual measure of publicly stating on Apr. 22 that tuition increases already announced by state universities for the next academic year will not be approved by the CPE, according to an Apr. 23 story by The Courier-Journal’s Nancy C. Rodriquez. Cowgill said that tuition hikes between 3% and 7% might be approved – less than UK’s 9%, EKU’s 8%, KCTCS’s 13%, and less than the expected announcements from Uof L and WKU at 9% each.
Cowgill said that the state is “clearly losing ground” in making higher education affordable. “I’m not supposed to be an advocate for the institutions. I’m supposed to be an advocate for the goals,” Cowgill said. “My concern is ultimately for the goals. … To achieve the goals for higher education outlined in House Bill 1, the state must find ways of gaining ground on every play, even when the amount of state appropriations is disappointing.”
Cowgill did stress, however, that he and CPE members will listen to and consider carefully the evidence in defense of the tuition increases that are presented by the institutions in Apr. 30 and May 1 hearings before the CPE, which afterward will make its decisions separately on each institution’s request.
During an interview with Alessi and Jester for their Apr. 17 story, Turner acknowledged that a “majority” of the eight university presidents oppose Cowgill’s appointment as permanent CPE president. Cowgill was selected by 10 of the CPE’s 12 members, with two members abstaining. It is unclear how Cowgill’s very strong public rebuke of the tuition hikes in the middle of his job controversy might affect his longevity in his position.
Four months after Fletcher left office, the state is still dealing with the personnel matters left over in the wake of the criminal scandal that engulfed his administration. The latest is a $500,000 settlement announced on Apr. 23 with former state Transportation Cabinet whistleblower Missy McCray who claimed that then-cabinet Sec. Bill Nighbert retaliated against her because she cooperated with investigators probing allegations of merit system abuse. McCray will be reassigned to a $62,500-per-year position in the Personnel Cabinet, according to Brammer’s story posted on Apr. 24 in The Herald-Leader.
McCray accused Nighbert of blocking a salary raise that she was legally entitled to and for threatening that, if it were 20 years ago, “I probably would have come back there and socked you in the mouth.” Nighbert actually admitted making the statement, but insisted that he was only joking. “I was personally willing to go there and testify to what had happened,” Nighbert said, according to a story by The Associated Press’ Roger Alford posted on Apr. 23 at nky.com. “I would have been surprised if she would have gotten anything at all when the whole story was told.” Nighbert, a former Williamsburg mayor, now works as a legislative aide to Williams in the Senate President’s office.
McCray’s case was scheduled to go to trial on May 12 in Franklin Circuit Court. Cabinet spokesman Chuck Wolfe said that the state’s research indicated that Franklin County jury verdicts have been very liberal when employees’ rights are interfered with, and that the state feared a much larger jury award than the settlement with McCray called for.
Beshear issued a press release that said in part as follows: “I appreciate how difficult this has been for Ms. McCray and applaud her pursuit of justice. It’s no secret that many state employees were mistreated over the past four years. This case is one of the most egregious examples of how many state workers came to work each day fearing for their jobs. It left us with the task of cleaning up the mess created by the previous administration.”
Another cabinet employee, Mike Duncan, won a $369,000 settlement in December for being illegally fired on May 13, 2005 by Nighbert. Duncan’s name was on a “hit list” that included the names of merit system employees who were accused of having supported Fletcher’s 2003 Democratic opponent, then-state Atty.-Gen. Ben Chandler. Dan Druen, a cabinet official in 2005, testified that the “hit list” document was shown to Fletcher at a meeting in Fletcher’s office in April 2005 and that Fletcher ordered the firings, demotions, and transfers called for in the document to be executed against the specified employees. Druen said that Nighbert and Basil Turbyfill, then an aide to Fletcher, also attended the meeting and were witnesses to Fletcher’s action.
State Rep. Greg Stumbo (D-Prestonsburg), then the state Attorney-General, commenced an inquiry on May 13, 2005 – the same day of Duncan’s firing – on whether Fletcher and his officials were illegally interfering with the statutory rights of state merit workers who have a sort of civil service protection. Fletcher and 14 of his administration’s officials were indicted by a special Franklin County Grand Jury for political interference into the state merit system during the scandal. They were all accused of allowing politics to influence the termination, demotion, or transfer of existing state merit employees, and to hire Fletcher loyalists to the merit system jobs to be opened up. Fletcher pardoned the 14 shortly after they were charged in the scandal, but never pardoned himself. He, too, was finally indicted during the 16-month criminal probe, but the charges against him were finally dismissed on Aug. 24, 2006 after the trial court decided that Fletcher’s criminal trial would have to wait until he left the Governor’s office. Stumbo, whose office led the prosecution, reasoned that it was pointless to continue the prosecution because Stumbo expected that Fletcher would just pardon himself if he were defeated for re-election or, if he were re-elected, at the end of his second term.
The scandal became the under-lying reason for Fletcher’s over-whelming rejection by the state’s voters last November as he became the first Governor in the state’s history to seek re-election and to fail.
US Sen. John McCain (R-AZ), the presumptive GOP presidential nominee-in-waiting, held a town hall meeting in Inez on Apr. 23. Forty-four years earlier this coming October former Pres. Lyndon Johnson visited the same Kentucky community to kick off his “War on Poverty” program that became the linch-pin of his land-slide presidential campaign that year, according to an Apr. 23 story by The Herald-Leader’s Ryan Alessi.
“I want them to know that I will not forget my responsibility to the American people,” McCain said, according to a story by The Herald-Leader’s Cassondra Kirby posted on Apr. 23 at polwatchers. “I will not make promises I intend to forget and I will not make this my last visit to Inez, Kentucky.”
Martin County is the home of GOP National Chairman Mike Duncan (who oddly has the same name as the fired cabinet employee (see segment above)), has a 3:1 GOP voter registration advantage, votes consistently as one of the most Republican counties in the state, and still has chronically high unemployment. “We have to earn rural voters in Eastern Kentucky and all over the country,” said Duncan. “We do that by the issues and our values. It’s significant that Sen. McCain is going to be on Main Street Inez, Kentucky, not Wall Street, talking about these things.”
Democratic National Chairman Howard Dean recently struck a similar chord, according to Alessi’s story. “I think it’s time to address the guys with gun racks on the back of their pickups,” Dean told reporters on an Apr. 21 conference call. “Those are our voters. Those are the folks who make America go. Those folks used to be Democratic voters ... And we need to talk to them. Rural America is up for grabs.”
The EKY region including Martin County has attracted an inordinate amount of attention from presidential candidates and their surrogates. Earlier in April, former Pres. Bill Clinton visited next-door neighbor Pike County on behalf of the candidacy of his wife, US Sen. Hillary Clinton (D-NY). Last year former US Sen. John Edwards (D-NC) visited Floyd County, another Martin County next-door neighbor, before finally dropping his presidential bid earlier this year. Clinton’s current opponent for the Democratic presidential nomination, US Barack Obama (D-IL), has not yet campaigned in Kentucky this year. According to SurveyUSA.com’s latest poll released on Apr. 15, Obama trails Clinton by 36% in Kentucky, and some observers believe that he won’t waste his time making appearances here.
SurveyUSA’s second poll released on Apr. 15 in the Democratic US Senate race indicates that multi-millionaire Louisville businessman Bruce Lunsford is increasing his margin over his opponents. Lunsford is now getting 47% compared to 42% that he received in the first poll released on Apr. 1. Greg Fischer, a millionaire Louisville businessman, now runs second at 9% – up from 6% in the first poll. Five other candidates are splitting 22% while 14% would prefer another candidate and 8% are undecided. The poll carries a 4.2% margin for error. The poll editor’s comments are as follows from SurveyUSA.com’s web site:
“5 Weeks to Democratic Primary for U.S. Senator from KY, Lunsford 5:1 Atop Nearest Challenger: In a Democratic Primary for United States Senator from Kentucky today, 04/15/08, 5 weeks until the votes are counted, businessman Bruce Lunsford’s is now 5:1 atop his nearest challenger, according to a SurveyUSA poll conducted exclusively for WHAS-TV Louisville and WCPO-TV Cincinnati. Today, it’s Lunsford 47%, businessman Greg Fischer 9%, frequent candidate David Williams 8%, and 4 others with 5% or less of the vote. Over the past two weeks, Lunsford’s support has increased by 5 points; Fischer is up 3 points; Williams is down 3. Lunsford takes 36% of the Democratic vote in eastern Kentucky, 47% in the north central portion of the state, and 49% in both the Louisville area and western Kentucky. No other candidate takes more than 11% of the vote in any region. The winner of the 05/20/08 closed Democratic Primary advances to face incumbent Mitch McConnell, the Republican leader of the U.S. Senate, who is running for his 5th term.” (Comment: The David Williams in this race should not be confused with the state Senate President of the same name.)
Both Lunsford and Fischer have started TV ad’s, but these might be quickly dwarfed throughout the more populated northern rim of Kentucky by ad’s likely to be run by Clinton and Obama who are competing in the May 6 Indiana primary as well as the May 20 Kentucky primary. Lunsford has already far greater name ID going into this race having altogether spent over $14 million during two failed runs for Governor in 2003 and 2007.
Apr. 18 – The Courier-Journal: “CPE is a mess; scrap it”
“Gov. Steve Beshear was right to ask for an attorney general’s opinion on the legality of the process through which Brad Cowgill became president of Kentucky Council on Postsecondary Education. He asked CPE members not to sign a contract with Mr. Cowgill under these circumstances – a reasonable request.
“It makes sense for the Governor to go even further…
“…current members decided to appoint a lawyer with minimal full-time experience in higher education, and they looked no further than Frankfort to find him. A council full of Ernie Fletcher appointees ignored the law and appointed the former Republican governor’s onetime budget director.
“Mr. Cowgill is a lawyer and former bureaucrat, articulate and quite capable. His ideas for changing the system through which public campuses are funded are sound. The problem is, he’s not an experienced academic administrator. For a salary like $275,000 per year, his background should fit the legal job description.
“Mr. Cowgill could prove that he understands the dynamics of success in such a position by stepping aside voluntarily. The CPE members who chose not to honor the law’s clear intent could give up their positions, too. But neither of those things will happen. In government these days, nobody sacrifices in order to ‘do the right thing.’…
“The Governor should, instead, put the CPE operation into receivership in the Education Cabinet, until a way forward can be sorted out. Gubernatorial intervention – as heavy-handed as that might seem – is preferable to weak-kneed acceptance of a bad situation. Mr. Beshear can re-invent the council by executive order…
“If nothing else, Mr. Beshear must respond to the CPE’s conduct forcefully so that every board and commission and all 30,000-plus state workers know he won’t let them ignore his requests to act according to the law’s intent.”
Apr. 20 – The Herald-Leader: “Priced out of the running”
“Many lawmakers are applauding themselves so loudly for not raising taxes that they can’t hear the door slamming on Kentucky’s future.
“By making college less affordable for families here than it would be in other states, Kentucky is committing economic suicide.
“The latest example is a proposed 13 percent jump in tuition at community and technical colleges. A student taking a full load of 15 hours of course work would pay $1,950 a semester.
“The two-year schools are supposed to be the gateway to a better future for working people, single parents, young adults who struggled in high school and those who can't afford to leave home.
“In other words, the very people who must upgrade their knowledge and skills if Kentucky is to have a chance of pulling itself out of poverty and competing.
“We should be making it easier for them, not harder…
“…college graduation rates are not rising appreciably, and cost has to be a factor, as students find they can’t work enough hours to pay tuition and have time and energy to study…
“Kentucky is losing ground on its goal of making college affordable, not just for low-income families but for all families, according to a recent report card by the state Council on Postsecondary Education…
“Preach all you want about government living within its means and how the current economic downturn is pinching everyone. This budget puts Kentucky on a detour to nowhere.”
Apr. 24 – The Courier-Journal: “Why tuition taxes?”
“The Council on Postsecondary Education should do what its president, Brad Cowgill, suggests – focus seriously, and skeptically, on the tuition increases being promoted at Kentucky’s public colleges and universities.
“It’s a refreshing change to have the CPE do something meaningful…
“Make no mistake about it. These institutions need the money they’re asking for in new tuition revenue – all of it, and more. If they got stuck with the 6 percent cuts already imposed this year, by Mr. Beshear and the General Assembly, that would set Kentucky higher education back a far piece.
“What’s needed is more state revenue, not only in higher education but across the state budget – not just now, through a cigarette tax boost, but consistently, over time, through a modernization of the state’s tax system.
“These tuition hikes are just tax increases in disguise, imposed on some of those least able to pay.”
Apr. 22 – Senior Care Inc. CEO and former state Finance Sec. Pat Mulloy, on The Courier-Journal’s op-ed page: “Kentucky fails without smart, bipartisan leadership”
“Kentucky is at a crossroads. I cannot remember a time in my adult life when Kentucky more desperately needs smart, thoughtful, progressive, bipartisan leadership. I also cannot remember a time when I have been more thoroughly disappointed in what our state government failed to accomplish in the recently completed session.
“To be blunt, we cannot afford failed leadership. We cannot afford petty squabbling. We cannot afford a House that will not speak to the Senate and a Senate that will not speak to the House. The leadership on the first floor of the Capitol must find a bipartisan way to address the important issues…
“…If we rush into a special session without our leaders stepping back and understanding exactly what is going wrong, we will be just like that old AA adage – doing the same thing over and over again and expecting different results.
“It has now been at least a decade since anything meaningful in terms of significantly moving this state forward has occurred. Not since Gov. Patton’s first term, when he reached across party lines to right a bankrupt workers compensation system, have we seen bipartisan leadership. That was a lifetime ago.
“To borrow a phrase, we have to be audacious enough to hope and believe that Kentucky can be a great state. That requires confronting our dysfunction and requires our leaders to talk.
“They don’t have to agree on every issue, but they must talk regularly and meaningfully about how we will fund an education and healthcare system and fix a broken pension system for starters. Our House needs to look inside itself and find the right leadership team. That team needs to talk to the Governor and the Senate leadership.
“This is not high school student council. Temper tantrums won’t educate one child. What is accomplished in Frankfort pays to educate our children and meet the healthcare needs of Kentuckians least able to afford it. The time for leadership is now!”
|
Lawreader: