Request By:
Rev. Clay Calloway, West Louisville Ministers Coalition
Rev. Milton Seymore, Justice Resource Center
Opinion
Opinion By: Jack Conway, Attorney General Matt James, Assistant Attorney General
Whether the University of Louisville Board of Trustees is in compliance with the minority representation requirement of KRS 164.821(5)
KRS 12.028; KRS 12.070; KRS 164.821(5)
Opinion of the Attorney General
Rev. Clay Calloway of the West Louisville Ministers Coalition and Rev. Milton Seymore of the Justice Resource Center have requested an opinion of this office on the following questions:
1. Whether KRS 164.821(5) requires that the Governor appoint citizen members to the University of Louisville Board of Trustees be reflective of no less than the proportional representation of the minority racial composition of the Commonwealth of Kentucky;
2. Whether by its own definition of race the Commonwealth of Kentucky recognizes "Hispanic or Latino" individuals as racial minorities;
3. Whether the Governor of the Commonwealth of Kentucky complied with KRS 164.821(5) by removing an African American racial minority from the University of Louisville Board of Trustees and appointing an identified Cuban-American to the University of Louisville Board of Trustees in lieu of other racial minorities;
4. Whether based upon the current U.S. Census Data and pursuant to KRS 164.821(5), the Governor is required to appoint more than one racial minority to the University of Louisville Board of Trustees or more decisively two or more racial minority members?
We advise as follows:
1. KRS 164.821(5) requires that the Governor's appointments to the Board shall reflect no less than proportional representation of the minority racial composition of Kentucky;
2. "Hispanic" qualifies as a racial minority for the purposes of appointment to state boards;
3. As both Hispanics and African-Americans qualify as racial minorities for the purposes of appointments to state boards, the appointment of Paul Diaz to a position formerly held by Rev. Kevin Cosby does not contravene KRS 164.821(5); however, the composition of the Governor's appointments to the Board currently is not in compliance with KRS 164.821(5);
4. Based on the current minority racial composition of Kentucky, the Governor's appointments to the Board should contain at least two minority members.
Recently, the term of Board trustee Rev. Kevin Cosby expired, and Governor Beshear nominated Paul Diaz, a Cuban-American, to fill Rev. Cosby's position on the Board. Rev. Cosby was the only African-American on the Board at the time his term expired. The Governor's appointees to the Board now consist of sixteen persons who are not minorities, and Mr. Diaz. At issue is whether the composition of the Governor's appointees to the Board is consistent with KRS 164.821(5).
KRS 164.821(1) provides that "the board shall consist of seventeen (17) members appointed by the Governor," one member of the teaching faculty, one member of the permanent staff, and a student member. KRS 164.821(5) provides that the Governor's appointments "shall reflect no less than proportional representation of the minority racial composition of the Commonwealth." The racial composition of Kentucky according to the 2010 census 1 is as follows:White87.8%Black or African American7.8%American Indian and Alaska Native0.2%Asian1.1%Native Hawaiian and Other Pacific Islander0.1%Two or More Races1.7%Hispanic or Latino n23.1%
Although there is no definition of "minority" in KRS Chapter 164, KRS 12.070 applies to the Governor's appointment powers generally. KRS 12.070(2) provides that "except as otherwise provided by law, the members of each administrative board or commission shall be citizens of Kentucky appointed by the Governor." In Galloway v. Fletcher, 241 S.W.3d 819 (Ky. Ct. App. 2007), the court held that "the phrase 'administrative boards and commissions' in KRS 12.070(3) includes the governing bodies of the state's universities," Id. at 823. KRS 12.070 therefore applies to the Board. KRS 12.070(1) provides that "'minority' means American Indian; Alaskan native; African-American; Hispanic, including persons of Mexican, Puerto Rican, Cuban, and Central or South American origin; Pacific islander; or other ethnic group underrepresented on state boards and commissions." 3 The definition of "minority" in KRS 12.070(1) expressly includes "Hispanic, including persons of Mexican, Puerto Rican, Cuban, and Central or South American origin." Accordingly, "Hispanic" qualifies as a racial minority for the purposes of appointments to state boards, including state university boards of trustees. Counting Hispanics, minorities make up fourteen percent of the population of Kentucky.
Given that the racial composition of the Commonwealth is fourteen percent minorities, KRS 164.821(5) requires that approximately fourteen percent of the Governor's appointees to the Board should be minorities. 4 Since the Governor appoints seventeen trustees to the Board, fourteen percent of those seventeen equals 2.38. Accordingly, at least two of the Governor's appointees to the Board should be minorities in order to comply with KRS 164.821(5), given the current minority racial composition of Kentucky.
As Mr. Diaz is of Cuban origin, he qualifies as a minority for the purposes of the minority racial composition requirement of the Board. There is therefore only one minority appointed by the Governor currently on the Board. In order to reflect the minority racial composition of Kentucky, at least two minorities should be appointed. The Governor's appointments to the Board therefore reflect less than the minority racial composition of Kentucky, and are currently out of compliance with KRS 164.821(5).
Although KRS 164.821(5) requires that the Board reflect not less than the minority racial composition of Kentucky, it does not specify any penalties to impose or remedies to take when the Governor's appointments to the Board do not reflect the minority racial composition of Kentucky. KRS 164.821(5) does not provide that appointments made in violation of it are void, nor does it mandate any action that must be taken to bring the distribution of the Board into compliance. 5 In Commonwealth ex. rel Stumbo v. Fletcher , No. 07-CI-1456 (Franklin Cir. Ct. filed Sept. 12, 2007), Attorney General Stumbo filed suit against Governor Fletcher for failing to comply with KRS 164.131(2)(c), 164.321(3), and 164.821(5), alleging that the boards of the state universities had a disproportionate amount of Republican appointees. Since the remedial options of the Attorney General in such a case are quite limited, Stumbo's lawsuit sought only a declaratory judgment that Fletcher had failed to comply with the statutes, and sought "to allow the Governor to voluntarily undertake corrective action. " (Complaint P 9(D)) (emphasis added). 6 Similarly, in this situation, we follow the example set by Attorney General Stumbo and advise that the Governor should voluntarily undertake corrective action to bring the composition of the Board into compliance with KRS 164.821(5). At a minimum, the Governor should make every effort to appoint another minority to the next vacancy on the Board. 7
In summary, we advise that KRS 164.821(5) requires that the Governor's appointments to the Board shall not reflect less than the minority racial composition of Kentucky. "Hispanic" counts as a minority. Given the current minority racial composition of Kentucky, at least two of the Governor's seventeen appointments should be minorities. As only one of the Governor's current appointees is a minority, the composition of the Governor's appointments to the board is currently out of compliance with KRS 164.821(5). We advise that the Governor should voluntarily undertake corrective action to bring the Board into compliance with KRS 164.821(5).
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