Franklin Circuit Court Judge Phillip Shepherd said Bevin’s executive order abolishing the Workers Compensation Nominating Commission and then re-creating it with new members “in many ways is kind of like a neutron bomb. It destroyed all the people but left the structure in place.”
“It kind of boggles the mind what the potential would be for mischief if there is not some limiting principle,” Shepherd said.
Kentucky’s administrative law judges decide if and how much employers have to pay workers who were hurt on the job. These judges are appointed by the governor, but Kentucky law says the governor can only appoint a judge that has been nominated by the Workers Compensation Nominating Commission. Last month —with an unprecedented six vacancies to fill — Bevin abolished that commission, rewrote the law that governed it and then re-created it with new members, all by executive order.
Bevin has used the tactic with several boards and commissions, including the Kentucky Racing Commission and the Kentucky Horse Park Commission. But his order reorganizing the nominating commission is the first to be challenged in court. Two labor unions and four injured workers sued Bevin last week, fearing that his new commission would nominate judges more likely to side with employers at the expense of workers.
Last week, Shepherd ordered the nominating commission not to make any recommendations to Bevin until after the lawsuit was resolved. Wednesday, the two sides argued in court.
Both sides seemed to agree the governor does not have unlimited power to change state law. The key question, Shepherd said, is “what are the limits of the governor’s authority.”
Stephen Pitt, Bevin’s attorney, said the limits are enforced by the state legislature after the fact. The legislature passed a law allowing the governor to abolish or alter laws governing state agencies when the legislature is not in session. The legislature can reverse Bevin’s order when it reconvenes in January if it so chooses.
“That power is ultimately in the hands of the General Assembly because the General Assembly can do something about that if it wanted to,” Pitt said.
But Eric Lamb, an attorney for the labor unions, said the state legislature has already set in place limits to the governor’s power, and Bevin is going beyond those limits by rewriting state law through executive order.
“This governor will have the opportunity in time to replace some of these individuals as their terms expire,” Lamb said. “It certainly puts the governor in the position to pack the workers compensation judiciary, and that’s why we are here. We want to preserve the system that was set up by the legislature.”
Shepherd did not rule on the case Wednesday, but said he was concerned with Bevin’s actions. He urged the two sides to resolve their differences outside of court, adding that any decision he makes will likely result in lengthy delays in the state’s workers compensation system. Shepherd said if Bevin loses the case and the old nominating commission is reinstated, he likely will not make any appointments.
“I can’t force the governor to appoint someone he doesn’t want to appoint,” Shepherd said.