Frankfort Attorney General Andy Beshear argued Wednesday in Franklin County Circuit Court that Gov. Matt Bevin does not have the authority to dissolve and reorganize several state education boards.
Beshear presented Judge Thomas Wingate with a flowchart laying out a list of five thresholds Bevin’s June executive order would have to meet in order to be ruled constitutional.
“If this court decides that it’s going to be the first to say the governor can suspend the law, will it be the first to say the governor can write the law?” Beshear said, illustrating the first two questions on his flowchart.
At its core, Beshear’s argument rested on whether Bevin has the authority to suspend a law. Beshear cited three previous cases in which the Kentucky Supreme Court ruled the governor does not have that power.
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Steve Pitt, the governor’s general counsel, called Beshear’s argument “bogus.”
He said the three cases Beshear cited dealt with fiscal law, not the reorganization of boards. When the legislature is not in session, the governor has the authority to temporarily reorganize boards until the legislature takes action, he said.
Pitt also argued that the governor had the support of the legislature because leaders of the House and Senate said they supported Bevin’s plan. Beshear, though, countered that the legislature’s leaders could not delegate the General Assembly’s authority to suspend and rewrite laws to the governor.
Bevin’s executive order restructured seven education boards: the Kentucky Board of Education; the Council on Postsecondary Education; the Standards and Assessments Process Review Committee; the School Curriculum, Assessment and Accountability Council; the Education Professional Standards Board, which certifies teachers; the Reading Diagnostic and Intervention Grant Steering Committee; and the State Advisory Council for Gifted and Talented Education.
The executive order added four, non-voting members to the Kentucky Board of Education and gave the governor the sole ability to appoint the executive director of the Education Professional Standards Board, among other things.
Jeff Walther, an attorney representing the Kentucky Education Association, argued that Bevin’s order did more than reorganize education boards. He noted that the executive order changed the way teachers appeal a revocation of their certification by the Education Professional Standards Board.
“This is more than moving bodies,” Walther said. “This is changing the substantive rights of teachers.”
Previously, a teacher could appeal a ruling of the standards board in circuit court. Under the executive order, any appeal first must go to the Kentucky Board of Education. If a teacher disagrees with the board, she can then appeal in circuit court.
Pitt argued that Bevin’s order does not affect teacher’s due process rights because they still can appeal in court.
“Nothing has changed there,” he said.
Wingate interjected with comments and questions throughout the hearing.
After Beshear presented his argument, Wingate said he learned in law school that if you can frame the question, you can win the argument.
“The attorney general has done a pretty good job of framing the question to win his argument,” Wingate said.
Later, he chimed in on Bevin’s decision to add four non-voting members to the state Board of Education.
“It seems to be fairly harmless,” Wingate said.
After joking that he should wait for the legislature to pass a bill affirming Bevin’s executive order before he ruled, Wingate said he would rule by the end of the month. From there, an appeal is likely.
“We all know this is going to the (Kentucky) Supreme Court,” Beshear said.