Request By:
Governor Steven L. Beshear
Opinion
Opinion By: Jack Conway, Attorney General; Tad Thomas, Assistant Deputy Attorney General
Opinion of the Attorney General
On April 14, 2008, the Council on Postsecondary Education (hereinafter "Council" or "CPE") voted to contract with Mr. Bradford Cowgill to become the next president of the Council with the contract to become effective May 1, 2008. Mr. Cowgill had previously been selected as an interim president by a three-person search committee. The interim term took effect on September 1, 2007, and the interim appointment is set to terminate on April 30, 2008. On April 16, 2008, Governor Steven L. Beshear requested an opinion of the Attorney General pursuant to KRS 15.020, asking "whether the Council on Postsecondary Education is required under the law to conduct a national search for candidates for the position of president of the Council who have significant experience and established reputations in the field of postsecondary education, and to propose three or more candidates for the position, and if so, whether the recent action of the Council taken on April 14, 2008 violates the spirit of the law." Pursuant to long-standing policy of this office, written requests were made to the Office of the Governor and the Council for their opinions on the matter as well as for supporting documentation. Both parties provided correspondence responsive to that request.
Background
The Council on Postsecondary Education was established in 1997 with the passage of HB 1, also known as the Kentucky Postsecondary Education Reform Act. The Council's mission, in part, is to lead the reform efforts envisioned by state policy leaders when they enacted the legislation. Its duties are enumerated in KRS 164.020. Among them, the Council develops and implements the strategic agenda and a system of public accountability for the effectiveness of Kentucky's postsecondary education system. The Council is composed of thirteen citizen members, the Commissioner of the Department of Education, a faculty member and a student member. 1 KRS 11.160 provides that citizen members of the Council are appointed by the Governor and confirmed by the Senate and House of Representatives.
It is clear from the plain language of the statutes establishing the Council that the position of president was intended to be a preeminent position in Kentucky's postsecondary education scheme. KRS 164.013 requires the president to possess "significant experience and an established reputation as a professional in the field of postsecondary education. " 2 The president "shall be the primary advocate for postsecondary education and advisor to the Governor and the General Assembly on matters of postsecondary education in Kentucky." 3 Further evidence of the high authority and importance of this position is the fact that the statute requires the president of the Council to be paid more than the base salary of any president of any Kentucky public university. 4
Since its inception, the Council has had two permanent presidents. Dr. Gordon Davies became the group's first president in 1998 and was replaced on April 15, 2003, by Dr. Thomas Layzell. Dr. Layzell announced his resignation on August 15, 2006, and served as president until Mr. Cowgill was hired as an interim president. The search to replace Dr. Layzell began on September 17, 2006, when the Council announced that it had formed a Presidential Search Committee. 5 In compliance with the Council's statutory requirements, the Committee hired a search firm, Academic Search, Inc., to assist in locating a qualified replacement. According to its minutes, the Committee met several times and interviewed at least six candidates for the position of permanent president. In correspondence provided to this office, the Council takes the position that none of the candidates interviewed by the Search Committee were considered "finalists," as none of those candidates were interviewed by the entire Council.
The Council's Search Committee held a meeting on June 25, 2007, and discussed taking a new direction in the search. It was suggested that the Council should consider naming an interim president to serve until after the 2007 elections. Apparently the Committee recognized the likelihood that it might be focusing on a much different applicant pool during the middle of a contested gubernatorial race than it might see after the election and the inauguration of the Governor.
According to documents provided by the Council, there was also a July 2, 2007, meeting of the Search Committee; however, a handwritten note indicates there are no minutes for this meeting. 6
On July 16, 2007, the Council met for a regularly scheduled meeting. Near the conclusion of that meeting, Council member Peggy Bertelsman reported that the Search Committee would be interviewing another candidate later in the day. Council member Ronald Greenberg then suggested that, due to the upcoming legislative session, if a candidate for the position was not found, the Council should consider appointing an interim to meet with legislators on behalf of the Council. Another Council member, Mr. Walter Baker, then suggested that it was premature to discuss an interim president when a candidate was scheduled to be interviewed later that day. At that time the Chair, Mr. John Turner, solicited a motion for the Council to enter into executive session to "discuss legal matters and a personnel matter" and stated that there might be action taken when the Council returned to open session later in the day. 7
According to the minutes, the closed session that day lasted approximately three hours. When the Council returned to open session, the minutes note, "Mr. Baker moved that the Council terminate the search for CPE president." [Emphasis added.] The motion was seconded by Council member Ryan Quarles and it is noted the motion passed.
Next, Council member Jim Skaggs made a motion authorizing the chair, Mr. John Turner, and two members of the Executive Committee to identify and hire an interim president with that person's term of service ending in April of 2008. This motion passed with a single Council member, Mr. Mark Wattier, voting "no." The minutes go on to state, "Mr. Turner asked Mr. Baker and Mr. Flanagan to serve with him on the interim search committee. He said they would identify someone as soon as possible and will report back to the Council when a person has been identified and agreed to serve." According to a press release on the Council's website, "On July 16, 2007, the Council on Postsecondary Education terminated the search for a new president and decided to appoint an interim president to serve through April 2008." 8 [Emphasis added.]
On July 19, 2007, the "Interim Search Committee," consisting of the Council Chair John Turner, Vice Chair Dan Flanagan, and Mr. Walter Baker, met in Mr. Turner's offices in Lebanon, Kentucky. Also present at this meeting was Mr. Bradford Cowgill. The purpose of this meeting was to discuss the selection of an interim president. "Chair Turner said that the committee should go into executive session to discuss a personnel matter." There is no other description of the matters discussed in executive session. 9
On July 20, 2007, the Council issued another press release stating, "The search committee to appoint an interim president for the Council on Postsecondary Education met late yesterday with Brad Cowgill but took no action following the meeting." 10 This press release reiterated, "The Council terminated its search earlier this week for a permanent replacement for Tom Layzell . . . ." 11
On July 26, 2007, the "Interim President Search Committee" again met with Mr. Cowgill in closed session at Mr. Turner's offices in Lebanon. The purpose of the closed session was to "discuss a personnel matter." 12 Upon returning to open session, the Search Committee voted to select Mr. Cowgill as an "interim" president. It appears from the minutes of the following Council meetings that the full Council never ratified this selection by the Interim Search Committee. Mr. Cowgill served in this capacity until April 14, 2008, when the full Council met and voted to name Mr. Cowgill as its "Permanent" president with his contract set to begin on May 1, 2008.
On July 27, 2007, the Council issued another press release stating, "The search committee to appoint an interim president for the Council on Postsecondary Education named Brad Cowgill, state budget director, to the position late yesterday. Cowgill's contract begins Sept. 1 and he is expected to serve through the next session of the general assembly. He will be paid $ 275,000 a year." 13 The Council again noted in its press release that it ". . . terminated its search last week for a permanent replacement for Layzell." 14
Between July of 2007 and April of 2008 there were no further meetings of the Council's Presidential Search Committee or the Interim Presidential Search Committee. There were no other interviews of candidates for the position of permanent president and the Council terminated the contract of Academic Search, Inc., after the July 16, 2007 meeting.
Discussion
KRS 164.020(27) requires Council members to select and appoint a president pursuant to KRS 164.013, which partially describes the scope and manner for conducting a search and prescribes minimum requirements for holders of the office. In relevant part, KRS 164.013 provides:
(1) The Council on Postsecondary Education shall set the qualifications for the position of president of the council. Except for the first president appointed under subsection (2) of this section, the council shall employ a search firm and conduct a nationwide search for candidates. The search firm employed by the council shall consider, interview, and propose three (3) or more candidates for the position of president. The council may seek additional names from the search firm or from other sources.
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(3) The president shall possess an excellent academic and administrative background, have strong communication skills, have significant experience and an established reputation as a professional in the field of postsecondary education, and shall not express, demonstrate, or appear to have an institutional or regional bias in his or her actions.
The Office of the Governor maintains that the Council violated KRS 164.013 in failing to conduct a nationwide search or to employ a search firm when it chose to convert Mr. Cowgill from an interim president to a permanent position. We agree.
In 1997 the Kentucky General Assembly recognized the fact that "[t]he general welfare and well-being of the citizens of the Commonwealth depend in large measure upon the development of a well-educated and highly trained workforce." 15 As a result, the General Assembly enacted landmark postsecondary education reform and set aggressive goals. By the year 2020 the University of Kentucky is to become a "major comprehensive research institution ranked nationally in the top twenty (20) pubic universities." 16 The University of Louisville is to become a premier, nationally recognized metropolitan research university. 17 These are only two of the several goals set by the General Assembly, which also recognized that the achievement of these goals would "lead to the development of a society with a standard of living and quality of life that meets or exceeds the national average." 18
The General Assembly also recognized that the leadership of Kentucky's postsecondary education system should be an individual with the experience and expertise necessary to accomplish these goals. The requirements of KRS 164.013 are clear. Each time the Council chooses a new president it " shall employ a search firm and conduct a nationwide search for candidates. " 19 [Emphasis added.]
The use of the term "shall" in a statute is "mandatory." 20 If the General Assembly had thought it best to allow the Council the discretion to conduct a search without a professional search firm or to refrain from engaging in a nationwide search, it would have used the term "may." In statutory interpretation and construction, "may" is permissive while "shall" is mandatory.
Carnes v. Parton Bros. Contracting, Inc., 171 S.W.3d 60, 68-69 (Ky. App. 2005). The use of the term "shall" in this statute is clear and unequivocal; therefore, the statute must be given its plain meaning.
McCracken County Fiscal Court v. Graves, 885 S.W.2d 307, 309 (Ky. 1994).
Like a court of law, in rendering our opinion this office must construe statutes to ascertain and give effect to the intent of the General Assembly.
Beckham v. Board of Education, 873 S.W.2d 575, 577 (Ky. 1994). The requirement for conducting a nationwide search is necessary to ensure that, in selecting an appropriate candidate, the members of the Council are able to identify highly qualified individuals that might be available to hold such a lofty position in Kentucky's educational system. There is nothing in KRS 164.013 that permits the Council to utilize a different and less expansive procedure when moving from an interim president to a permanent president.
The Council now submits the opinion of its General Counsel, Dennis Taulbee, which states that the Council was engaged in this nationwide search until July of 2007 when that search was "suspended" for the employment of an interim president. In a memorandum to Council members dated April 16, 2008, Mr. Taulbee states, "My reading of the statute and of the minutes of the July 16, 2007, meeting leads me to conclude that the Council, despite the use of the word terminate in the minutes, intended to suspend the search, not end it." 21
Indeed, the Council's minutes clearly state that the search was terminated, not suspended. Mr. Taulbee argues that the statement by one Council member at the July 16 meeting, in which he suggested that hiring an interim president would allow time to vet and scrutinize potential candidates, indicated an intent on the part of the Council to "suspend" the search as opposed to terminate it. Unfortunately, that view requires an overly broad and generous reading of the minutes and contravenes the clear meaning of the term "terminate. " Mr. Taulbee correctly points out in his memorandum, "The word terminate is defined in Black's Law Dictionary as 'To put an end to; to make to cease; to end.'" 22 The meaning of the term is clear and so are the actions of the Council.
First, it is important to acknowledge the long-held principle of Kentucky law that a public agency, such as the Council, can only speak through its official records. "A public agency which has a board and board meetings speaks through its minutes as to actions taken." OAG 80-421. See also
Gentry v. Ressnier, 437 S.W.2d 756, 757 (Ky. 1969) (internal quotation marks omitted) (referring to the "standard rule that a public body can speak only through its records"). It is presumed that administrative proceedings, such as meetings of the Council in this matter, are conducted in a regular manner and that administrative officials reach decisions only after considering the issues appropriately. Cf.
Louisville and Jefferson County M.S.D. v. Joseph E. Seagram & Sons, 307 Ky. 413, 211 S.W.2d 122, 125 (1948) (holding that a court will not set aside an action contained in an agency's official records absent clear and convincing evidence to the contrary).
The Council member's statement relied upon by the Council's General Counsel was made prior to the Council's entering into a nearly three-hour-long closed session. Immediately upon returning to open session, the motion was made to "terminate" the search and the motion passed. No mention was made after the closed session of suspending the search or using the hiring of an interim as an opportunity to scrutinize candidates.
The actions of the Council after the July 16, 2007, meeting constitute clear and convincing evidence that they sought to terminate and not suspend the search. After the meeting, the Presidential Search Committee never met again and no other committee sought to interview a permanent presidential candidate. The contract with the search firm was terminated and no other search firm was retained. 23 In fact, during this entire process not a single candidate, including Mr. Cowgill, was ever interviewed by the entire Council.
Despite the allegation that the Council sought to use the appointment of an interim president to allow more time to vet and scrutinize potential candidates, no additional interviews of other candidates were ever held and there is no indication other names of potential presidents were sought from any source. These subsequent actions of the Council completely dispel the April 16, 2008, written legal opinion offered by the General Counsel of the CPE.
In making its argument that it intended to suspend the search as opposed to terminate it, the Council tacitly admits that a termination of the search in July of 2007 would require it to restart or conduct a new nationwide search as required under KRS 164.013. There is nothing in the documents provided to this Office that would suggest that the Council ever reopened its "suspended" search or that the Presidential Search Committee established in 2006 was ever reconvened to discuss a national search. In fact, Mr. Turner told the Lexington Herald-Leader on April 15, 2008, that no search was necessary. 24
The failure of the Council to engage a new search firm and begin a new nationwide search for a qualified candidate, or to reinitiate the search that it had begun, may be seen as an attempt to evade the express language of the statute by hiring an "interim" president only to convert that person to a permanent position later. This is even more disturbing given the fact that the Council admits Mr. Cowgill was never a "final candidate" for the position prior to July of 2007. The Council states that there were no final candidates because none were brought before the full Council to be interviewed. In fact, Mr. Cowgill applied for the position of president yet was ruled out as a candidate. 25
Governor Beshear has also asked this office to opine on whether the actions of the Council violated the spirit of the statute. It is not necessary for us to render an opinion on whether Mr. Cowgill's qualifications are sufficient to comply with KRS 164.013(3), since we have found that the actions of the Council violated KRS 164.013(1). It is clear the intent of the statute is to ensure that the Council is searching the nation for the most qualified candidate to lead Kentucky's postsecondary endeavors and to lead the Commonwealth toward the goals outlined by the General Assembly in KRS 164.003. A statute should be interpreted with reference to "the objects to be accomplished" by the legislation.
Dougherty v. Kentucky Alcoholic Beverage Control Bd., 279 Ky. 262, 130 S.W.2d 756 (1939).
It is clear from the mandatory language of the statute, which requires a nationwide search for a person with "significant experience and an established reputation as a professional in the field of postsecondary education, " that the Council should attempt to identify a candidate capable of serving in this preeminent position. Statutes should be construed so as to accomplish the purposes for which they were enacted.
Reyes v. Hardin County, 55 S.W.3d 337 (Ky. 2001). It is worth noting that the statute allows the Council to receive candidates in addition to those identified by the search firm. Nevertheless, it is incumbent upon the Council to utilize the search firm process to at least identify outstanding candidates that may be available to lead Kentucky's postsecondary education system toward the goals identified in House Bill 1. Statements by members of the Council to the media reveal that initially they were looking for just such a candidate. On May 22, 2007, Council member Peggy Bertelsman told the Lexington Herald-Leader that six candidates were interviewed the prior week and "they [were] very well qualified," and that all had either led a statewide system or been a university president. Regardless of these initial good intentions, the failure of the Council subsequently to undertake a nationwide search when it was decided to move from an interim president to a permanent president is a violation of the statute.
Accordingly, it is our opinion that the Council on Postsecondary Education was duty-bound by the requirements of KRS 164.013 to retain a search firm and conduct a new national search for a permanent president. Having failed to undertake this search, the Council was in violation of the law.
Footnotes
Footnotes
1 KRS 164.011.
2 KRS 164.013(3).
3 KRS 164.013(4).
4 KRS 164.013(6).
5 The Committee consisted of Council members Peggy Bertelsman, who served as Chair, Kevin Canafax, Ronald Greenberg, Dr. James Ramsey, Joan Taylor, John Turner, Mark Wattier and Alois Moore. Council members Alois Moore and Kevin Canafax were added to the committee on November 6, 2007. Dr. Ramsey was present for advisory purposes only and was not permitted to vote.
6 In reviewing the minutes of the various meetings of the Council on Postsecondary Education and both its Presidential Search Committee and Interim Search Committee, this office has identified numerous violations of Kentucky's Open Meetings statutes. One of these violations was the failure of the Council's Search Committee to keep minutes of its July 2, 2007 meeting. KRS 61.835 provides:
The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body.
7 The Council and its various committees also repeatedly violated Kentucky's Open Meetings laws by failing to comply with the statutory requirements for going into closed session. The Supreme Court of Kentucky has described the procedural requirements of the Open Meetings Act regarding closed sessions as follows:
KRS 61.815 provides that prior to going into an executive session, the public body must state the specific exception contained in the statute which is relied upon in order to permit a secret session. There must be specific and complete notification in the open meeting of any and all topics which are to be discussed during the closed meeting.
Floyd Co. Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997) (emphasis added). Discussion in closed session of a matter not identified with the specificity required by the Act is unlawful. As such, "any action taken as a result of the secret discussions [is] voidable." Id. To void actions of a public agency for violations of the Open Meetings Act the aggrieved party must pursue such a remedy in a "court of competent jurisdiction." KRS 61.848(5).
This Office has consistently opined that "an agency complies with the requirements of KRS 61.815(1)(a) and KRS 61.810(1)(f) by announcing, in open session, that pursuant to KRS 61.810(1)(f) it is going into closed session to discuss either the appointment, or the discipline, or the dismissal of an employee or employees of the agency, indicating which of these particular actions is contemplated." 99-OMD-049; see also 07-OMD-059; 05-OMD-011; 04-OMD-179; 99-OMD-133. "While the public need not be advised as to the name of the specific person being discussed in connection with a possible appointment, dismissal, or disciplinary action, the public is entitled to know the general nature of the discussion which would be that it involves either a possible appointment, a possible dismissal, or a possible disciplinary matter relative to a specific unnamed person or persons." 97-OMD-110. It is not sufficient to refer merely to a "personnel matter." 04-OMD-179; Floyd Co. Board of Education, supra.
8 http://cpe.ky.gov/news/mediaroom/releases/nr_20070717.htm.
9 The Interim President Search Committee was in violation of Kentucky's Open Meetings laws during its July 19, 2007, meeting for the reasons discussed in footnote 7.
10 http://cpe.ky.gov/news/mediaroom/releases/nr_20070720.htm
11 Id.
12 The Interim President Search Committee appears to be again in violation of the Open Meetings law during its July 26, 2007, meeting for the reasons discussed in footnote 7.
13 http://cpe.ky.gov/news/mediaroom/releases/nr_20070727.htm
14 Id.
15 KRS 164.003(1)(a).
16 KRS 164.003(2)(b).
17 KRS 164.003(2)(c).
18 KRS 164.003(3).
19 KRS 164.013(1).
20 KRS 446.010(30).
21 Memorandum of Dennis L. Taulbee to Council members, Lisa Osborne and Ryan Quarles, April 16, 2008.
22 Id. at pg. 3.
23 Memo of Dennis Taulbee pg. 2, "Note: The contract with Academic Search, Inc. was canceled following the July 16, 2007, meeting so it would not be possible to seek additional names from the search firm."
24 Lexington Herald-Leader 4-15-2008.
25 This fact has been confirmed by CPE's General Counsel.