Posted on Tue, Apr. 22, 2008

Beshear blocks 2 Fletcher actions

VALIDITY OF CAVE, FOX APPOINTMENTS QUESTIONED

By Jack Brammer

JBRAMMER@HERALD-LEADER.COM

FRANKFORT --

Gov. Steve Beshear's administration is blocking two of Republican Gov. Ernie Fletcher's final appointments before leaving office in December: the appointment of top aide Stan Cave to the Mine Safety Review Commission and former Education Secretary Virginia Fox to the Council on Postsecondary Education.

Beshear's general counsel has said Cave's appointment wasn't properly confirmed by the General Assembly.

Fox's appointment was not confirmed by the state House, Dick Brown, Beshear's director of communications, said Monday night. He said Fox will be notified soon that her appointment is not valid. Fox was not immediately available for comment.

Cave, a Lexington lawyer who was Fletcher's chief of staff, has objected, saying that Kentucky's constitution should override the statute Beshear's administration is citing.

Cave has stepped aside "under protest" until the issue is resolved.

Cave said in a statement that the issue "will ultimately have to be decided by the Kentucky Supreme Court," but he has not yet decided what action, if any, to take.

Fletcher appointed Cave to the commission in the final hours of his administration on Dec. 10 for a term on the commission that would expire May 23, 2010. The Republican-led Senate unanimously approved the appointment at 12:46 a.m. on April 16, according to the roll call sheet.

But Ellen Hesen, general counsel for Democratic Gov. Steve Beshear, contends in an April 18 letter to Cave that the Democratic-controlled House did not act on the appointment, as required by a state statute -- KRS 11.160(2)(i).

As a result, she said, his seat on the commission has become vacant.

Cave did not return phone calls Monday to his Lexington office and home.

Beshear's press secretary, Dick Brown, said the governor's office of general counsel "is confident in its review of the law and believes it would be illegal to seat Mr. Cave on the board without approval of both chambers of the General Assembly."

Cave said to the commission at its meeting last Friday that his appointment was confirmed by the Senate in conformity with section 93 of the state Constitution.

It says: "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 said the attempt to remove him violates the state Constitution and "is contrary to well-known precedent of the Kentucky Supreme Court."

He said he has given his opinion to Hesen and C. Michael Haines, an attorney in the Natural Resources and Environmental Protection Cabinet, which oversees the mine safety panel.

"I have a deep love of the institution of government as well as a respect for the office of the governor, regardless of party affiliation," Cave said in his statement. "It is out of that respect I will step aside from the Mine Safety Review Commission until this issue is resolved."

Republican Party Chairman Steve Robertson also argued that the Beshear administration ignored the constitutional guidelines.

"The Kentucky constitution places the authority for confirming appointments with the Senate. The senate did its job," Robertson said. "It certainly seems improper. To me, it looks illegal."

Republicans and Democrats on the Senate State and Local Government Committee praised Cave during his confirmation hearing earlier this year after he told them that much of his law practice has dealt with commercial litigation and transactions in the coal industry.

Fletcher also re-appointed William D. Donan, a Democrat from Hanson, to the commission on his way out the door.

Donan's appointment, which was unanimously confirmed by the Senate early Wednesday morning, had been approved by the House in a separate resolution on March 18. Therefore, Beshear did not take issue with Donan's appointment, Brown said.

However, Senate leaders argue that the House action is meaningless. "Constitutionally, the Senate is the only chamber with confirmation power," said Lourdes Baez Schrader, spokeswoman for Senate President David Williams.

If challenged, both appointments might also be questionable under another provision of the constitution that requires lawmakers to finish their work on April 15. The Senate didn't confirm Donan or Cave until the wee hours of April 16.