Gov. Fletcher violated KRS 164.005(5)(a) by refusing to appoint nominated Murray State University regent candidates.

KRS 164.005(5)(a) requires the Governor when filling an appointment to the Board of Regents of a Kentucky state university to make the appointment from the names of three nominees submitted by the
nominating committee.  Governor Fletcher has rejected all nominees submitted to him on behalf of Murray State University on two occasions.

KRS 164.005 Governor’s Postsecondary Education Nominating Committee –Membership — Terms — Duties.

(1) There is established the Governor’s Postsecondary Education Nominating Committee which shall consist of seven (7) members representing each of the Supreme Court districts who shall be appointed by the Governor with the consent of the House of Representatives and the Senate. If the General Assembly is not in
session at the time of appointment, the consent of the General Assembly shall be obtained during the time the General Assembly next convenes.
(5) (a) The committee shall be responsible for submitting three (3) nominations from which the Governor shall select each gubernatorial appointment to a university or Kentucky Community and Technical College System governing board made pursuant to KRS 164.131, 164.321, and 164.821 and to the Council on Postsecondary Education pursuant to KRS 164.011. The committee shall not make recommendations for alumni, faculty, and staff appointments made pursuant to KRS 164.131 and 164.821 and the student
appointments made pursuant to KRS 164.131, 164.321, and 164.821.

If more than one (1) equivalent gubernatorial appointment is being made to a governing board or the Council on Postsecondary Education at the same time, the committee shall submit a number of nominees equal to three (3) times the number of vacancies. The committee shall provide to the Governor, inasmuch as possible, an equal number of male and female nominees. If the Governor needs nominees of a particular sex in order to make an appointment, the committee shall only provide nominees of that sex. The Governor shall select
the appointees from among the nominees.


The Attorney General says Fletcher does not have the power to reject all candidates. We believe the definition of “shall” as used in the statute is mandatory.  The Governor has apparently been advised that “shall” means he has discretion.  That conclusion is contrary to the classic court ruling:

 Department of Revenue v. Oldham County, 415 S.W.2d 386 (Ky., 1967)
“As late as 1960 Clinton County Farm Bureau v. Clinton County Fiscal Court, Ky., 339 S.W.2d 930, we held that ‘shall’ was a mandatory word. In fact, the word ‘shall’ has been interpreted by this court in some fourteen different cases as mandatory.?
See the following AP news story:

FRANKFORT, Ky. – Gov. Ernie Fletcher’s decision to reject six candidates for the Murray State University board of regents may have been a violation of state law, the attorney general’s office said.

Fletcher turned down two separate lists of three candidates presented to him by the bipartisan Postsecondary Education Nominating Committee last week. The board is looking to replace regents Chairman Don Sparks, whose term ended on June 30.

In a letter to Marc Yussman, chairman of the nominating committee, Fletcher cited a law that allows a governor to decline from making a selection “where appointments to administrative boards and commissions are made from lists submitted to him.”

But Assistant Attorney General Rob Jones said Fletcher does not have the power to reject all of the candidates. State law requires the committee to submit a list of three candidates to the governor, who then chooses one of the nominees.

“The governor does not have the discretion to send three more names in,” Jones said. “A specific statue on a specific board would be controlling over any general law in any area.”

Edwin Orange, executive director of the office of boards and commissions, said in a statement last week that Fletcher didn’t think he found a suitable candidate on the list.

“While we are sure the nominees submitted are find individuals, the Gov. was not familiar with any of the Democrats on the submitted list,” Orange wrote. “Furthermore, none of the nominees have spoken with the Gov. expressing an interest to him in serving Murray State University.”

At least four of the six candidates were Democrats. Fletcher is a Republican.

Jones said the state will wait to see the outcome of the selection process before deciding to open an investigation.

It’s simply the latest brush between Fletcher and Stumbo. Fletcher is currently facing three misdemeanor charges stemming from allegations he awarded protected state jobs to political allies.

Acting Murray State president Kern Alexander said he believes Fletcher’s decision may have political overtones. Alexander said Fletcher wants to appoint a candidate who could aide the school’s former athletic director in a breach of contract suit against the school.

Alexander said former Murray State athletic director E.W. Dennison is friends with Robbie Rudolph, who is Fletcher’s running mate in the 2007 gubernatorial race. Rudolph has said he’s loaned Dennison $250,000 for legal bills and other costs. Alexander alleges Rudolph wants to have a say in who Fletcher chooses to join the board.

“It has much to do with that, the settlement of that case,” Alexander said.

Fletcher spokeswoman Jodi Whitaker did not respond to the charges, saying only that it is the governor’s “prerogative” to approve or reject a candidate.

Kenneth “Pete” Galloway, assistant superintendent of Graves County schools in southwestern Kentucky, was one of three candidates submitted by the nominating committee on July 6. He expressed frustration over the process.

“I would like to know what’s going on,” he said. “I haven’t heard a thing.”

Sharon Green, who was on the July 6 list with Galloway and J. Kenneth Shadowen, said she was surprised when she wasn’t contacted by the governor’s office about her interest in the position.

“I felt like I did contact them by submitting my application and letting them know I was interested in serving,” she said. “I thought they’d call and ask me my goals for the university, ask me why I wanted to serve.”

Whitaker said the nominating committee has not set a date to meet to put together a third list of candidates.

  

Also see:

Courier Journal editorial mistates the law regarding appointment of Murray State Univ. Regents

[Jul 26th, 2006]

The Louisville Courier Journal in an editorial published July 26, 2006, stated as follows: ?In l991, the Supreme court in Kentucky Association of Realtors v. Musselman, upheld nominating commissions. But that decision was contingent on a Governor?s power to reject the proposed names and ask for a new list.?  That conclusion by the Courier Journal is [...]

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