LOUISVILLE, Ky. (WDRB) – A judge has denied an effort to block Gov. Andy Beshear's complete reorganization of the Kentucky Board of Education, clearing the way for the newly constituted board to consider Education Commissioner Wayne Lewis's ouster.
Franklin Circuit Judge Thomas Wingate ruled against attorney Bart Greenwald's request for a temporary injunction after a hearing Wednesday, saying he wasn't swayed by Greenwald's argument that Beshear abused his power by removing board members without cause as required by law.
Greenwald represents 10 of the 11 board members replaced by Beshear, in one of his first acts as governor Tuesday, in a lawsuit filed in Franklin Circuit Court.
"Despite Plaintiffs arguments that the Governor has essentially 'fired without cause' sitting board members, the Governor has, in fact, temporarily reorganized an administrative instrument," Wingate wrote in his order denying Greenwald's motion for a temporary injunction.
"The Governor has acted within the scope of his temporary reorganization authority and has not violated Kentucky law."
Greenwald told reporters after Wednesday's hearing that he would take the issue to the Kentucky Supreme Court if necessary. He did not immediately respond to a message seeking comment on Wingate's ruling.
Beshear, who has relied on a Kentucky Supreme Court ruling that he lost as attorney general in defending his reorganization authority, said in a statement that Wingate's decision affirmed that ruling from the high court.
In the opening moments of Wednesday's hearing, Wingate handed both sides copies of the Supreme Court's July decision that Gov. Matt Bevin had the authority to reorganize various education-related boards, including the state board, by executive order.
"On my first day in office, I replaced the Kentucky Board of Education because we must have a board and commissioner that value public education," the Democratic governor said in a statement. "... Let’s move together as one Commonwealth to commence a national search for the very best commissioner of education."
Beshear is referring to a state education board meeting scheduled 10 a.m. Thursday in Frankfort.
The main topic of discussion will be the future of Lewis as Kentucky's education commissioner. The board is slated to meet in a closed session that "might lead to the dismissal" of Lewis.
Other items on the agenda include appointing an acting education commissioner, authorizing the board to solicit bids for a national search for a new commissioner, and setting special meeting dates for new board member orientation and the selection of a new commissioner.
Lewis declined to comment on Thursday's meeting.
David Karem, appointed by Beshear to serve as the new board's chairman, declined an interview request by WDRB News Wednesday.
Karem said he's "in a holding pattern" given that most former board members have challenged Beshear's executive order in court.
Beshear is the first governor to completely overhaul the state education board since the Kentucky Education Reform Act of 1990.
The former board members contend that they were removed illegally and against the spirit of KERA, which became law in part to depoliticize the education bureaucracy in Frankfort.
"What the state Supreme Court has said is that the governor generally does have the power to reorganize state boards, but what the courts have not ruled on is whether the governor can remove members of the Kentucky Board of Education without cause," former board member Gary Houchens said after Wednesday's hearing in Frankfort. "State law says pretty explicitly that the governor cannot do that."
While Houchens has previously said that the former board members are suing Beshear in their individual capacities and at their own expense, it's unclear when they began discussing the possible lawsuit.
Greenwald declined to say whether the 10 former board members talked about the possible litigation while they were still part of the Kentucky Board of Education.
"I don't want to talk about that because that's attorney-client privilege," Greenwald told reporters. He reiterated that when told such discussions could have violated Kentucky's Open Meetings Act.
House Majority Floor Leader Bam Carney, a Campbellsville Republican and former chair of the House Education Committee, said he believes Beshear has "clearly" broken the law with his reorganization order.
Carney told WDRB News in a phone interview Wednesday that Bevin tried to get him to alter a bill he sponsored to add three members to the state education board early in his administration. The GOP governor wanted control of the education board sooner rather than later, Carney said.
"I refused to do so because that was not the proper way to handle this," he said. "It's clearly set up in statute how the board appointments are to rotate, and again, if I didn't support that action in that manner, I certainly don't support the action here."
Carney says he's worried about that Beshear's order may set a "bad precedent" if it survives the ongoing legal challenge.
"I would certainly suspect that in four years or eight years whenever another governor comes in you will see an attempt to do the same thing, and I think that's bad for education," he said.
He declined to say whether the General Assembly will try to curb the governor's reorganization powers in the upcoming session, saying such definitive statements are premature before his caucus meets.
But House Republicans are "looking into that," he said.
Lewis, who makes $200,000 per year, has been education commissioner, both in interim and permanent roles, since April 2018 after the former board negotiated the resignation of former Education Commissioner Stephen Pruitt in a closed-door meeting. He has said a legal board can remove him without cause if they offer a 90-day written notice under the terms of his contract, which runs through Oct. 2, 2022.
Pruitt was paid for 90 days under the terms of his resignation, which came a day after Bevin appointed seven new members as terms came available. That gave him complete control of the 11-member panel.
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