LOUISVILLE, Ky. (WDRB) – The state Senate confirmed nearly all of Gov. Andy Beshear’s appointments to the Kentucky Board of Education on Wednesday, with only Chairman David Karem's nomination failing.
The confirmation resolutions for the 11 voting members appointed by Beshear were included in the Senate's consent agenda, so lawmakers had to register "no" or "pass" votes in advance. No roll-call vote was taken.
With 34 senators answering the final legislative day's morning roll call, 17 votes were needed to sink a confirmation. Karem's confirmation resolution received 17 "no" votes, all from Republicans, while resolutions for the 10 other voting members got nine or 10 votes each in opposition.
Beshear, who became the first governor to reorganize the board, has often touted the qualifications of his appointees to the state education board, which quickly negotiated the resignation of former Education Commissioner Wayne Lewis in December and embarked on a nationwide search for his replacement, and said stability on the panel is necessary during its hunt for a new education chief amid the global COVID-19 pandemic.
Neither Beshear's office nor Karem responded to messages seeking comment Wednesday.
Senate President Robert Stivers, who sponsored legislation this session that would have prohibited governors from reorganizing the Kentucky Board of Education, criticized Beshear’s decision to reconstitute the panel on his first day in office and questioned the credentials of some of his appointees, including taking jabs at Karem and Mike Bowling.
The former lawmakers “were both here when something that was universally despised by teachers and administrators and taxpayers was passed,” Stivers said on the Senate floor hours before the confirmation votes, referring to the Kentucky Education Reform Act of 1990.
“But because the governor says we need consistency at this point in time, that this is not the time and the place to take these individuals out, I'm going to support that so there can be consistency at this time,” said Stivers, R-Manchester. “But if it is truly a new day and consistency is needed in this time of the COVID-19 pandemic, to be consistent, no other boards should be reorganized for the next year.”
Senate Majority Floor Leader Damon Thayer, R-Georgetown, argued against confirming most of Beshear’s appointees, saying the new education board had “no balance whatsoever” with all Democrats on the panel.
Stivers’s Senate Bill 10 would have also require the board’s membership to reflect the state’s political registration statistics, and Thayer said he looked forward to maneuvering similar legislation through the General Assembly next year.
He said he would only vote to confirm Lee Todd, saying he couldn’t “in good faith” oppose a former president of the University of Kentucky. Voting records show he was among the 10 senators who voted against Todd's confirmation.
“I hope there are enough ‘no’ votes that these members are not confirmed, which means they will not be able to reappointed for two years and that the governor will reappoint a new board that more accurately reflects the education opinions around this Commonwealth,” Thayer said earlier Wednesday.
After the vote, Senate Minority Floor Leader Morgan McGarvey said he was "sorry" that Karem's confirmation was rejected.
"When it comes to this board, while many of us may not like what the governor did, it is confirmed by the Supreme Court he had the power to do it, so I think that these people were appointed in accordance with the statute and should have been confirmed by this body," McGarvey, D-Louisville, said in a floor speech after the vote.
Members in at-large seats — Todd, Alvis Johnson and Claire Batt — will serve until April 14, 2022, based on Wednesday’s confirmation vote.
Those representing Kentucky Supreme Court districts — Bowling, Vice Chair Lu Young, Holly Bloodworth, Patrice McCrary, Sharon Porter Robinson, Cody Pauley Johnson and JoAnn Adams — will serve until April 14, 2024.
Karem, a former state senator, held an at-large seat that must now be filled by someone else. Since his confirmation failed, he cannot be reconsidered for the seat for at least two years.
Kevin Brown, Kentucky's interim education commissioner, said he was happy to see 10 of the 11 voting members appointed by Beshear confirmed by the Senate, but the upper chamber's omission of Karm left him "stunned" given his service as a legislative leader and an author of KERA.
"We owe a great deal of gratitude to Chairman Karem’s leadership and dedication to improving public education in the Commonwealth over the past four decades," Brown said in a statement.
Their confirmations likely also deal a heavy, if not decisive, blow to a pending federal lawsuit filed by seven former board members who argued that Beshear overstepped his authority by removing them from the panel without cause and in violation of their rights to due process.
Attorney Steve Megerle filed a request for a telephonic status hearing before U.S. District Judge Gregory Van Tatenhove at his earliest convenience shortly after the Senate adjourned sine die Wednesday, contending that the board confirmations should be invalidated because they weren't also approved by the House as required by laws governing the state board.
"It is now a total snafu," Megerle wrote. "... Defendants were not lawfully confirmed in the manner prescribed by statute."
The Kentucky Supreme Court has held that the state's Constitution, based on a 1992 amendment, grants the Senate sole confirmation authority over inferior state officers and members of boards and commissions, a point Beshear's legal team made in a filing Thursday.
Megerle said Thursday that he did not believe the high court's ruling applied to Kentucky Board of Education confirmations because the General Assembly did not revise the governing statutes for those appointments and remove references to the House's role in the confirmation process.
Other confirmation processes have been revised in the aftermath of the 2010 ruling, Megerle said.
"I do not think that that case is binding precedent on this set of facts," he said.
Five of Megerle's clients -- lead plaintiff Gary Houchens, Kathy Gornik, Ben Cundiff, Laura Timberlake and Joe Papalia -- were confirmed last session through the same process employed by the Senate to approve most of Beshear's appointments Wednesday.
He does not believe a ruling in their favor will impact their positions on the board because they're only contesting the current circumstances of Beshear's reorganization.
"I'm not challenging anything retroactively, and even if they were appointed improperly, we offered a compromise to correct the situation so that the board of education is not dominated by one party, which has never been the case," Megerle said, referencing an offer to give Beshear control of appointments for six of the 11 voting seats on the board that the governor rejected.
In a joint statement, the seven former board members contend that the statuory requirement that both the House and Senate approve confirmations to the panel "has been ignored by the General Assembly for some time, including in the case of our own appointments."
"We would have objected earlier had we known of this conflict," the seven said in a statement. "Our purpose is not to advance our own positions, but to see that the law is enforced, and enforced consistently.”
"We’re asking the court to ensure the law is followed and to help us remove the political poison so that it doesn’t continue to infect the board-appointment process moving forward," they continued.
Beshear has relied on a Kentucky Supreme Court decision in a case he lost as attorney general against his predecessor, former Gov. Matt Bevin, in support of his power to reorganize the Kentucky Board of Education.
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