Could Kentucky's postsecondary education council make its interim president permanent without restarting a national search?

Plain-English summary

Kentucky's Attorney General concluded that the Council on Postsecondary Education violated KRS 164.013(1) when it appointed Bradford Cowgill, then its interim president, to a permanent term without reviving its nationwide search. The statute required the Council to retain a search firm, conduct a nationwide search, and have the firm propose at least three candidates for the permanent position. The AG said the Council had to reopen the search before making the appointment.

The Council had begun a search with Academic Search, Inc., but its July 16, 2007 meeting minutes recorded a vote to terminate that search. It then ended the firm's contract, made Cowgill interim president, held no further permanent-candidate interviews, and voted on April 14, 2008 to make him permanent. The Council's counsel later characterized the earlier search as merely suspended. The AG rejected that reading because the Council's official minutes said “terminate” and its subsequent actions matched that decision. The opinion did not decide whether Cowgill personally met the statutory qualifications.

The opinion also identified open-meetings violations during the selection process, including missing minutes for a committee meeting and closed sessions announced only as “personnel matters.” Its conclusion about the permanent appointment rested on the separate statutory search requirement.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could the Council simply make its interim president permanent? A: Not on the process described in the opinion. The AG said the Council had terminated its earlier national search and needed to retain a search firm and conduct a new or reinitiated nationwide search before selecting a permanent president.

Q: Did the earlier search count even though it had been stopped? A: The AG said it did not. The Council's minutes recorded a vote to terminate the search, the search firm's contract was canceled, and the permanent search committee did not meet again before the appointment.

Q: Did the AG find Cowgill unqualified to be president? A: No. The opinion expressly declined to decide whether he satisfied the qualifications in KRS 164.013(3) because the Council had already violated the search requirement in subsection (1).

Q: What did the opinion say about the Council's closed meetings? A: In footnotes, the AG identified violations of Kentucky's open-meetings procedures, including a committee meeting without minutes and closed-session notices that said only “personnel matter.” The opinion said an aggrieved person seeking to void agency action for an open-meetings violation had to pursue that remedy in court.

Background and statutory framework

KRS 164.020(27) directed the Council to appoint a president under KRS 164.013. At the time, KRS 164.013(1) required a search firm and a nationwide search for every president after the first, with the firm to consider, interview, and propose three or more candidates. The Council could also seek additional names from other sources. The AG read “shall” as mandatory and found no exception for converting an interim president to permanent status.

The Council's July 2007 minutes were central to the dispute. Its counsel argued that the search had only been suspended, but the recorded motion said “terminate.” The AG also relied on the cancellation of the search firm's contract and the absence of further interviews or permanent-search committee meetings. The opinion's separate open-meetings discussion appears in footnotes and does not supply the basis for its final conclusion that the permanent appointment violated KRS 164.013(1).

Citations and references

• KRS 164.013(1): search firm, nationwide search, and candidate proposal requirements.
• KRS 164.020(27): Council appointment duty.
• KRS 61.835 and KRS 61.815(1)(a): meeting minutes and closed-session procedures discussed in the opinion's footnotes.
• Floyd Co. Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997): closed-session notice discussed in a footnote.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_96ee74e2-bc17-4371-8132-43a5bcf2eeb8/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_96ee74e2-bc17-4371-8132-43a5bcf2eeb8

Original opinion text

OAG 08-002

April 24, 2008

Subject: Whether the Council on Postsecondary Education vio- lated KRS 164.013 by failing to engage a search firm and conduct a national search prior to hiring its in- terim president as a permanent president.

Requested by: Governor Steven L. Beshear

Written by: Tad Thomas
Assistant Deputy Attorney General

Syllabus: The Council on Postsecondary Education was re- quired by KRS 164.013 to reopen its national search prior to awarding its interim president a permanent position.

Statutes construed: KRS 164.013

OAGs cited: OAG 80-421, 99-OMD-049, 07-OMD-059, 05-OMD- 011, 04-OMD-179, 99-OMD-133, 97-OMD-110, 04- OMD-179

Opinion of the Attorney General

On April 14, 2008, the Council on Postsecondary Education (here- inafter “Council” or “CPE”) voted to contract with Mr. Bradford Cowgill to become the next president of the Council with the contract to be- come effective May 1, 2008. Mr. Cowgill had previously been selected as an interim president by a three-person search committee. The in- terim term took effect on September 1, 2007, and the interim appoint- OAG 08-002 Page 2

ment is set to terminate on April 30, 2008. On April 16, 2008, Gover- nor 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 signifi- cant experience and established reputations in the field of postsec- ondary education, and to propose three or more candidates for the po- sition, 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 pol- icy of this office, written requests were made to the Office of the Gov- ernor and the Council for their opinions on the matter as well as for supporting documentation. Both parties provided correspondence re- sponsive 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 re- form 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 sys- tem of public accountability for the effectiveness of Kentucky’s post- secondary education system. The Council is composed of thirteen citi- zen members, the Commissioner of the Department of Education, a faculty member and a student member. 1 KRS 11.160 provides that citi- zen members of the Council are appointed by the Governor and con- firmed 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 estab- lished reputation as a professional in the field of postsecondary educa- tion.”2 The president “shall be the primary advocate for postsecondary

1
KRS 164.011.
2
KRS 164.013(3).
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Page 3

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 presi- dents. 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 presi- dent 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 quali- fied replacement. According to its minutes, the Committee met several times and interviewed at least six candidates for the position of perma- nent 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 candi- dates 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 sug- gested that the Council should consider naming an interim president to serve until after the 2007 elections. Apparently the Committee recog- nized the likelihood that it might be focusing on a much different appli- cant pool during the middle of a contested gubernatorial race than it might see after the election and the inauguration of the Governor.

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. OAG 08-002 Page 4

According to documents provided by the Council, there was also a July 2, 2007, meeting of the Search Committee; however, a handwrit- ten note indicates there are no minutes for this meeting.6

On July 16, 2007, the Council met for a regularly scheduled meet- ing. Near the conclusion of that meeting, Council member Peggy Ber- telsman reported that the Search Committee would be interviewing an- other candidate later in the day. Council member Ronald Greenberg then suggested that, due to the upcoming legislative session, if a can- didate for the position was not found, the Council should consider ap- pointing 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 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 fol- lowing 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 re- quirements 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 OAG 08-002
Page 5

According to the minutes, the closed session that day lasted ap- proximately 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 sec- onded 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 mem- ber, 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 in-
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 re- quired by the Act is unlawful. As such, “any action taken as a result of the secret dis - cussions [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 require- ments 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 ap- pointment, 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 connec- tion with a possible appointment, dismissal, or disciplinary action, the public is enti- tled to know the general nature of the discussion which would be that it involves ei- ther 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. OAG 08-002 Page 6

terim 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 Ed- ucation terminated the search for a new president and decided to ap- point 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 per- sonnel matter.” There is no other description of the matters discussed in executive session.9

On July 20, 2007, the Council issued another press release stat- ing, “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 person- nel matter.”12 Upon returning to open session, the Search Committee voted to select Mr. Cowgill as an “interim” president. It appears from

8 http://cpe.ky.gov/news/mediaroom/releases/nr_20070717.htm.
9
The Interim President Search Committee was in violation of Kentucky’s Open Meet- ings 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. OAG 08-002 Page 7

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 Coun- cil 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 stat- ing, “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 can- didates for the position of permanent president and the Council termi- nated 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 re- quirements for holders of the office. In relevant part, KRS 164.013 pro- vides:

(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, inter- 13 http://cpe.ky.gov/news/mediaroom/releases/nr_20070727.htm 14
Id.
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view, and propose three (3) or more candidates for the po- sition of president. The council may seek additional names from the search firm or from other sources.

…

(3) The president shall possess an excellent academic and administrative background, have strong communication skills, have significant experience and an established repu- tation as a professional in the field of postsecondary edu- cation, 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 presi- dent 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 Common- wealth depend in large measure upon the development of a well-edu- cated and highly trained workforce.” 15 As a result, the General Assem- bly enacted landmark postsecondary education reform and set aggres- sive 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 be- come a premier, nationally recognized metropolitan research univer- sity.17 These are only two of the several goals set by the General As- sembly, 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 15 KRS 164.003(1)(a).
16
KRS 164.003(2)(b).
17
KRS 164.003(2)(c).
18
KRS 164.003(3).
OAG 08-002
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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 discre- tion 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 permis- sive 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 con- strue 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 neces- sary to ensure that, in selecting an appropriate candidate, the mem- bers of the Council are able to identify highly qualified individuals that might be available to hold such a lofty position in Kentucky’s educa- tional system. There is nothing in KRS 164.013 that permits the Coun- cil 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, Den- nis Taulbee, which states that the Council was engaged in this nation- wide 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

19
KRS 164.013(1).
20
KRS 446.010(30).
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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 de- fined 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 offi- cials 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 mo- tion passed. No mention was made after the closed session of sus-

21
Memorandum of Dennis L. Taulbee to Council members, Lisa Osborne and Ryan Quarles, April 16, 2008.
22
Id. at pg. 3.
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pending 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 consti- tute 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 inter- view 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 appoint- ment 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 presi- dents were sought from any source. These subsequent actions of the Council completely dispel the April 16, 2008, written legal opinion of- fered 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 ex-

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 ad- ditional names from the search firm.” 24 Lexington Herald-Leader 4-15-2008.
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press 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 qualifi- cations 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 postsec- ondary 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 re- quires a nationwide search for a person with “significant experience and an established reputation as a professional in the field of postsec- ondary education,” that the Council should attempt to identify a candi- date capable of serving in this preeminent position. Statutes should be construed so as to accomplish the purposes for which they were en- acted. 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 addi- tion to those identified by the search firm. Nevertheless, it is incum- bent upon the Council to utilize the search firm process to at least identify outstanding candidates that may be available to lead Ken- tucky’s postsecondary education system toward the goals identified in House Bill 1. Statements by members of the Council to the media re- veal that initially they were looking for just such a candidate. On May 22, 2007, Council member Peggy Bertelsman told the Lexington Her-

25
This fact has been confirmed by CPE’s General Counsel.
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ald-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 under- take 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 re- tain 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.

Jack Conway
Attorney General

Tad Thomas
Assistant Deputy Attorney General