Court: Kentucky Governor Lacks Authority to Cut Universities' Funding

by | September 22, 2016

By Linda Blackford and Jack Brammer

The Kentucky Supreme Court dealt a decisive blow to Republican Gov. Matt Bevin's executive power Thursday, finding that he exceeded his statutory authority by cutting state universities' budgets by 2 percent this spring, after the General Assembly had already appropriated their funding.

The 5-2 ruling reverses a May 18 decision by Franklin Circuit Court Judge Thomas Wingate, who said the state's universities and colleges are part of the executive branch of government and that Bevin has the power to reduce budget allotments to units within that branch.

Kentucky's high court disagreed, concluding that whatever power Bevin has to reduce spending "does not extend to universities, which the legislature has made independent bodies politic with control over their own expenditures."

The ruling said Bevin's executive order "effectively intercepted the funds before they became available to the universities."

"By reducing the final quarterly allotment, the governor has essentially frustrated the overall appropriation by the General Assembly," the opinion says. "Money that the General Assembly made available to the universities through its appropriations was made unavailable by the governor's actions. Simply put, there is a difference between exercising an authority not to spend money once it has been made available and preventing the money from being made available to the entity that has the power to decide not to spend it."

Oral arguments were held last month. Attorney General Andy Beshear, who filed suit against Bevin, said the governor violated the state constitution's separation of powers by usurping legislative power over the budget, while Bevin's general counsel, Steve Pitt, said state law allows the governor to alter financial payments to state agencies through the State Budget Office.

Bevin had first ruled that universities should be cut by 4.5 percent to help prop up the state's ailing pension system, but later reduced the cut to 2 percent.

In his earlier ruling, Wingate ordered the state to put $18 million _ the amount of the 2 percent cut _ in a separate account until a final decision is reached.

Beshear called on Bevin Thursday to immediately release the money "he wrongfully withheld from our public colleges and universities."

The court noted that universities differ from the rest of state government because appropriations are made directly to them, instead of having their bills paid through the treasurer's office.

The decision also noted that "there is no question" the governor has the authority to make budget cuts specifically when there is a budget shortfall of 5 percent or less and there is a legislative budget reduction plan.

The court did not address the constitutional question that Beshear raised about the separation of powers, saying the issue could be dealt with through state laws.

The decision is the first resolution is a series of legal and personal skirmishes between Beshear and Bevin, including Beshear's challenge to Bevin's dissolution of the University of Louisville Board of Trustees. Bevin has also hired a private firm of lawyers to investigate the administration of Beshear's father, former Gov. Steve Beshear.

Beshear called Thursday's ruling a "turning point" for Bevin.

"It is time for him to stop attacking, and to instead join me in building a better Kentucky," Beshear said, citing Kentucky's numerous problems with child abuse, senior citizen scams and drug abuse. "These are the problems Kentuckians expect us to address, and they are problems that all of us _ Democrats, Republicans or independents _ can address together. So I would hope that after today, the nasty press releases and name-calling stop, and the governor joins us for the real work that needs to be done to help Kentucky families."

Bevin's office did not immediately respond to a request for comment.

(c)2016 Lexington Herald-Leader (Lexington, Ky.)