By Jamie Vinson & Gina Vaile/Editors
A Franklin County Circuit Court judge temporarily halted the controversial legislation signed by Gov. Paul Patton March 10 that essentially removed Eastern Board of Regents Chairman Fred Rice from his position. Under a temporary restraining order approved by Judge William Graham, Rice will be able to maintain his position on the Board. The decision came after Rice filed suit in Franklin County Circuit Court March 14 challenging that Senate Bill 152 is unconstitutional. Rice claims the bill, supported by Sen. Ed Worley and State Rep. Harry Moberly, was a personal attack to remove him from his seat.
Moberly said Wednesday that Rice “certainly is entitled to a temporary restraining order until his suit is settled.”
The legislation, which changed regulations for those who can sit on governing educational boards, immediately removed Rice from his position.
Regents can no longer reside outside the 50 United States and serve on a governing body of a state institution of higher education. Rice recently moved his residency to the U.S. Virgin Islands, but still has homes in Louisville and Florida.
The bill, which applies to all Kentucky universities and KCTS, except the University of Kentucky and University of Louisville, currently only affects Rice. SB 152 does not apply to UK and UofL because the schools are governed under separate legislation.
“You can’t single out one person and then make a law just to go get them,” Rice said Tuesday. “That’s special legislation,” adding he filed the suit after his attorneys pointed out a number of errors with the bill he felt responsibility to “at least protect the university.”
The suit said SB 152, as written, should only apply to “those Board members who ‘assume residency’ outside the fifty United States after March 10, 2003” the date the bill was signed and that Rice moved his residency to the U.S. Virgin Islands well before that date. The suit also claims SB 152’s requirement that all Board members reside in the 50 United States as “a condition of eligibility violates the equal protection clause of the Fourteenth Amendment to the United States Constitution” as well as violates the Kentucky Constitution.
In the hearing Tuesday, Rice’s attorney, Kevin Hable, asked Graham to grant the restraining order to prevent those named in the suit — Patton, the Council on Postsecondary education and CPE President Thomas Layzell — from removing Rice from his seat until a final solution is reached on Rice’s Board membership. Rice did not attend the hearing.
Under the guidelines in SB 152, the CPE would be required to serve Rice formal notification he is ineligible to serve due to his residency violation. The CPE had not served this notification as of Tuesday, thus Hable sought the restraining order to prevent the CPE from doing that so Rice could remain on the Board “pending legal notification and a final resolution to the situation.” Now, with the restraining order, neither the CPE nor Patton can take any action to remove Rice from his position on the Board at this time.
All parties unanimously agreed to the order. One of three representatives from the CPE present at the hearing said the order did not mean the CPE was agreeing to anything specific, and said the CPE was mentioned in the case simply because the bill’s wording required it to notify Regents who violate the residency requirements.
“Quite frankly, we don’t have a dog in this fight,” a representative said.
Monday however, Worley filed amendments to House Bill 252 (the bill that set original guidelines for national board certification of teachers) that if passed, would have eliminated mandating the CPE to issue Regents notice if they violate the residency guideline of SB 152 and make it OK for a Regent to reside in Washington, D.C. SB 152 originally had stated a Regent could not reside in territories outside the United States or in the District of Colombia.
Worley also introduced an amendment that permanently prohibits members of the General Assembly and who are full-time employees of universities to be presidents of universities. An amendment that reads: “A change in residency after the member’s eligibility for reappointment, except a member who is appointed after June 1, 2003, and assumes residency outside the 50 United States or the District of Columbia shall become immediately ineligible to serve” was filed. None of the amendments passed.
Worley did not return Progress phone calls.
Moberly also filed an amendment to HB 132 very similar to Worley’s outlining who could not serve as university president. His amendment passed.
Tuesday Rice said he had not seen copies of the amendments and declined comment.
Hable said after the hearing he expects the issue to be resolved soon as he plans to confer with representatives of the CPE and the Governor’s Office over the next few days.
“I expect it to be resolved in a way that is going to enable Mr. Rice to maintain his position as chairman of the Board at Eastern. If the issue cannot be resolved by discussions with the CPE and governor, the case will be argued before the judge,” Hable said, adding he expects the issue to be resolved before the April 25 Board meeting.
Hable said Rice deserves to sit on the Board.
“I’ve known him to be a person who is interested in public service and serving on this Board for all the right reasons,” he said.
Rice said Tuesday he has faith in the court system and that he does believe it will find in his favor.
The Governor’s Office declined comment and the CPE and Layzell could not be reached for comment. Eastern President Joanne Glasser also declined to comment on pending litigation.
The restraining order remains in effect, allowing Rice to serve on the Board, until a final resolution is reached by the parties or the issue is resolved in court, Hable said.
When news of the lawsuit filed by Rice hit the university community, some Board members and university faculty quickly responded.
Faculty Regent Pam Schlomann said she had concerns about the substance of the law.
“We have some very capable, committed alumni who live out-of-state,” she continued. “I would not like to restrict the kind of contributions they can make to the university simply because of their residence.”
Schlomann was instrumental in drafting a letter to the governor opposing the legislation before SB 152 was signed .
Staff Regent David Williams, one of seven Regents who signed the letter, said Tuesday he was pleased to learn the court issued a temporary restraining order.
“With all the critical issues the Commonwealth is facing, it’s hard to comprehend that these people continue to choose to spend their time and energy and our tax dollars on petty personal politics,” he said.
Faculty Senate Chair Keith Johnson, who signed the letter as well, said there will be a motion brought forth at the Senate’s next meeting April 7 in regard to the issue.