by RONNIE ELLIS, CNHI News Service –
FRANKFORT – When state lawmakers last spring signed off on Gov. Matt Bevin’s reorganization of the Kentucky Retirement System Board of Trustees, many thought that brought to an end a suit by a member of the board removed by Bevin’s earlier executive order.
Certainly that’s what Bevin and his attorneys thought, and that’s what Bevin General Counsel Steve Pitt argued in Franklin Circuit Court on Wednesday, seeking to dismiss a suit by Thomas Elliott who Bevin removed a year ago.
Elliott subsequently sought and received a temporary injunction from Franklin Circuit Court Phillip Shepherd to remain on the board, although in a non-voting capacity, while the litigation proceeded.
But the General Assembly ratified most of Bevin’s executive order, approving a new board and confirming the members appointed by Bevin — but not Elliott.
Given the General Assembly’s action, Pitt told Shepherd on Wednesday, the suit is moot and the court can’t act in any way that would have a practical effect on the board.
“So any question of whether Mr. Elliott was improperly removed would be just an advisory opinion,” Pitt said.
But Attorney General Andy Beshear and Elliott’s attorney, Kevin Chlarson, argue the General Assembly’s ratification of the executive order doesn’t settle the limits to Bevin’s authority under a statute that allows him to reorganize executive branch agencies or if it allows the governor to abolish a board or remove a board member whose term was set by law.
Chlarson noted that Shepherd said at the time he issued the injunction allowing Elliott to remain on the board that Bevin’s removal raised “serious legal issues,” including a lack of due process. Those issues, Chlarson said, are still before the court.
Shepherd, however, asked what “practical effect” any ruling he might deliver would now have after the legislature’s action.
Assistant Attorney General LaTosha Buckner argued that while the legislature may have signed off on Bevin’s new KRS board, it didn’t address the bounds of a governor’s authority under the reorganization statute.
By removing Elliott — whose term was set by law — Bevin essentially wrote new legislation and that violates the separation of powers, she argued.
She told Shepherd “there is a likelihood of future actions — there are rumors of pending reorganizations and (Bevin) claims absolute authority” under the reorganization statute.
Bevin and his attorneys have publicly claimed the governor has “absolute authority” under the reorganization statute that is limited only by the legislature’s power to review and then ratify or deny such orders when it is next in session.
“So the governor will continue to claim this power until the court rules otherwise,” she said. “There is a clear need for (judicial) guidance.”
Bevin has issued executive orders reorganizing the workmen’s compensation nominating committee, the KRS Board and the University of Louisville Board of Trustees.
Shepherd ruled Bevin acted beyond his authority in the U of L case and Bevin appealed and the issue is now before the state Supreme Court. But the legislature largely ratified Bevin’s moves in that case, too, and Bevin is arguing that issue is now moot as well. No hearing date has been set on Bevin’s motion to dismiss that case, Pitt said Wednesday.
Shepherd made no ruling Wednesday, telling attorneys,“I’ll try to get you a ruling as soon as possible.”