Who gets to choose the people who sit on the boards and commissions that make decisions across Kentucky? The Kentucky Supreme Court heard two cases Thursday over the Republican supermajority legislature’s recent efforts to move powers away from the Democratic governor toward the other executive offices that are currently held by Republicans, like the agricultural commissioner or attorney general.
The governor’s office asked the justices to strike down laws that gave away some of his ability to appoint people to the State Fair Board and the Executive Branch Ethics Commission.
The two cases are closely linked, with Solicitor General Matt Kuhn defending both laws while the governor’s General Counsel Travis Mayo asked the court to strike them down. Kuhn told the panel of justices, who convened at the University of Kentucky in Lexington Thursday, that the legislature is allowed to delegate appointment powers away from the governor so long as it stays within the executive branch.
“In fact, for as long as our constitution has existed, we've had boards and commissions in the Commonwealth to which the governor does not appoint a majority of the members. At present, we have 28 such boards and commissions all across state government,” Kuhn said. “Kentucky is not a unilateral executive in which all power must flow through the governor. We are a divided executive, proudly so.”
Mayo argues the legislature was encroaching on the governor’s basic constitutional ability to uphold state laws and act as the state’s “supreme executive power.”
“Every four years, the people of Kentucky elect a governor to be the chief executive of state government to carry out the powers and duties that our constitution gives the governor to lead the executive branch,” Mayo said.
The debate underpins the ongoing tensions between Gov. Andy Beshear and the GOP-controlled legislature. Since his election, lawmakers have subjected more and more of Beshear's appointments to Senate confirmation, moved programs from under his purview and attempted to place limits on his emergency power.
The two cases have also received different rulings from lower courts. For the fair board appointments, Jefferson Circuit Judge Mary Shaw found the legislature had unconstitutionally stripped Beshear of his executive powers — a decision which the court of appeals upheld. In the case of the executive ethics commissions, the appeals court took a different stance, and decided that the changes to the commission’s appointments didn’t violate the Kentucky Constitution.
Here’s how the legislature changed the make up of the two boards:
- House Bill 334 kicked off all of the five existing members of the Executive Branch Ethics Commission appointed by Beshear. It allowed Beshear to appoint just two members and required the other executive officers — treasurer, auditor, agriculture commissioner, secretary of state and attorney general — to each select one commissioner, creating a new seven member board. Only the officer who selected the commissioner could fire them, with cause.
- House Bill 518 gave the agriculture commissioner the appointment power for nine of the now 16-member board. The governor, who previously appointed two-thirds of the board, appoints six members under the bill. It also added the leaders of the state House and Senate as non-voting members of the board.
Kuhn noted that there are several other commissions and boards, besides the ones at issue, where most of the members are appointed by someone other than the governor. He pointed, for example, to the Opioid Abatement Advisory Committee, which distributes half of the opioid abatement funds the state won through lawsuits — roughly half a billion dollars. Most of that committee is appointed by the attorney general.
“This Court has to think about the consequences,” Kuhn said. “Our constitution is not situational. It means the same thing for the fair board. It means the same thing for EBEC. It means the same thing for the opioid abatement commission. This court's decision on this issue is going to last longer than the dispute between Governor Beshear and the current legislature.”
Kuhn also questioned whether the governor should be allowed to appoint all of the members on the executive ethics committee, an independent board that enforces ethical standards across the executive branch — including the governor’s administration and each of the other executive offices, like the Secretary of State and Treasurer’s office.
Justice Kelly Thompson also questioned the logic of allowing the governor the authority to appoint all the members of a commission that is also tasked with overseeing him and his administration. He brought up an old case he argued in 1972 before the governor-appointed Board of Claims.
“I had a case that I knew was a loser, but Governor [Wendell] Ford had appointed every member of the Board of Claims, and I won that case,” Thompson said. “And I always wondered about that. Don't you think it's more fair to have the appointment authority dispersed around the executive branch?”
The lawyer for the governor’s office said the governor is elected, just as the legislature is, and the people can vote him out if they feel he is abusing his authority in board appointments.
Justice Angela McCormick Bisig asked the attorney general’s office to draw a line, saying the court needs to balance the legislature’s power with the governor’s to make sure checks and balances hold.
“There must be some balance,” Bisig said, addressing Kuhn with the Attorney General’s office. “I understand your argument as well that you don't want this important commission answering only to the governor. But there are no guard rails on that power if we interpret it the other way as well.”
