When is a Kentucky Board of Education member Not a Board Member?

I thought I'd be writing a correction today on an issue related to the Kentucky Board of Education. But now - maybe not.

On Saturday, I wrote that Kentucky Board of Education members "typically serve until replaced."

Support for that statement came from information provided KSN&C by the governor's former Communications Director Dick Brown in April 2008. At that time, I was told that board members "continue serving until someone new is appointed."

That drew a response from a finicky KSN&C reader who knows a lot more about the law and how the Kentucky Board of Education really operates than I do.

The source tells KSN&C that

Any action taken by any putative Board member after his or her term expires would be invalid (the term is “ultra vires” in legal mumbo jumbo).

Ultra vires is Latin for "beyond the powers."

My legal dictionary suggests that government entities created by a state are public corporations governed by statutorily imposed grants of power. Historically, the ultra vires concept has been used to construe those powers of a government entity narrowly. Failure to observe the statutory limits has been characterized as ultra vires.

To prevent a contract from being voided as ultra vires, it is normally necessary for governmental groups like the Kentucky Board of Education to prove that the member actually had the proper authority to act. Similarly, where a government employee (like a commissioner) exceeds his or her authority, the government entity (the board of education) may seek to rescind the contract based on an ultra vires claim.

I wonder if a private citizen could make the same claim. So with apologies to former KBE Chair Joe Brothers, let me posit a scenario.

Suppose Brothers liked being on the board and didn't really want to step down. Suppose that KDE had some action that required the board chair to do something; sign a contract, perhaps, or otherwise attend meetings and act on behalf of the board. Could a disgruntled citizen bring a claim against the Board to nullify whatever actions he took? What if that action was really important to the children of the state?

KSN&C asked KDE for a ruling. Apparently after consulting with KDE General Counsel Kevin Brown, spokeswoman Lisa Gross told KSN&C,

The statute says that the terms expire on April 14, and although there is nothing in the statute that says the members whose terms have expired may continue to serve (or must not serve), the tradition has been to consider those whose terms have expired as “held-over” members if no new members are appointed before the next regular meeting occurs.

Tradition? I like tradition as much as the next guy, but when it comes to how the government functions, I've always preferred to be able to read the law and have some understanding of what it means. I do not anticipate a problem, but one wonders what an Attorney General might opine. But I should add that our finicky reader is not concerned, thinks we should leave the AG out of it, but also thinks the law is crystal clear - after April 15th the expired members are just that.

The Board of Education statute (KRS 156.029) states:

Each of the appointed members shall serve for a four (4) year term, except the initial appointments shall be as follows: the seven (7) members representing Supreme Court districts shall serve a term which shall expire on April 14, 1994; and the four (4) at-large members shall serve a term which shall expire on April 14, 1992. Subsequent appointments shall be submitted to the Senate and to the House of Representatives for confirmation in accordance with KRS 11.160...

Now contrast that with the other statutory language. When the legislature wants to allow members to continue to serve, they provide language to support it. Consider KRS 164.821(4) which provides for trustees at UofL:

The gubernatorial appointments shall serve a term of six (6) years and until their successors are appointed and qualified.

There is no language in the KBE statute about “The gubernatorial appointments shall serve … until their successors are appointed and qualified.”

Gross says she does not recall the last time a governor failed to make appointments before a regular meeting and if that has occurred, it’s likely been a few years. Well, I can't remember a time either and doubt it will be a problem this time. In fact, we hear that interviews with potential BOE members have already been taking place, so this is academic.

But KSN&C also hears that the issue of when a BOE member ceases to be one, may have come up this year. There were plans for a May retreat that presumably would have included those members whose terms have expired, but after some conversations, the May meeting got nixed. A special session is looming and the meeting was pushed to June. I suspect the two are somewhat related.

Gross tells KSN&C that over time,

governors have had to appoint one or two members because of resignations or term expirations, and I don’t remember if all of those were appointed before regular meetings occurred. When governors have appointed more than one member due to
term expirations, that has generally occurred prior to the board’s May retreat. This year, the board is not having its retreat in May, but will use one day of the June meeting for that purpose.

What is much more clear is that confirmation of appointments can come later and would not have to be added to the special session - indeed, should not clutter a special session.

Gross says,

Some past appointees have gone through the confirmation process months after their initial appointments. They do not have to be confirmed by the legislative bodies in the “current” session, but can go through the process at the next seating of the General Assembly.

That has occurred recently, and I think, regularly.

But what if the governor does not appoint new members by the June meeting? By my reckoning, there would only be four members qualified to meet and serve.

Gross says that if that comes to pass, the KDE general counsel "will work with the governor’s general counsel to determine the best course of action."

But for Joe Brothers, C.B. Akins, Kaye Baird, Jeanne Huber Ferguson, Austin W. Moss, Judy H. Gibbons and Doug Hubbard, perhaps this is the time to say, "Thanks for your service."