Ken Hare In Depth: Gov. Bentley has authority to remove two ASU - WTVM.com-Columbus, GA News Weather & Sports

Ken Hare In Depth: Gov. Bentley has authority to remove two ASU trustees

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MONTGOMERY, AL (WSFA) -

If he chooses to do so, Gov. Robert Bentley appears to have the legal authority to remove two Alabama State University trustees cited for alleged conflicts of interests in a forensic audit of the university commissioned by the governor.

What remains to be seen is whether Bentley will choose to exercise that authority.

When asked about the governor's intentions Thursday, a spokesman said only, "No decision has been made."

At the center of the audit were two current trustees and one former trustee -- Board Chairman Elton Dean, Board Vice Chairman Marvin Wiggins and former board member Lawrence Lemak, who resigned earlier this year. The preliminary forensic audit raises serious questions about business dealings of all three with the university.

But I suspect that it is the central role Wiggins and Dean are playing in the ongoing presidential search that could force the governor's hand in making such a decision. Wiggins is chairman of the search committee and Dean is a member.

It is clear from the letter Bentley sent to the other members of the ASU board of trustees (the Alabama governor serves as president of the ASU board, as well as other state universities) that the presidential search is a major factor in the timing of the release of the preliminary forensic audit.

In the letter, Bentley asked the board to delay the presidential search process until the issues raised in the audit could be addressed.

"The issues — and questions — raised by the FSS report are the basis for my request to temporarily halt the operations of the Presidential Search Committee.  I believe we can all agree the next president of ASU must be well-qualified as leader, with financial acumen, strong ethics, and a record of academic achievement," Bentley wrote.

But the search committee is continuing to meet despite the governor's request. At a meeting Thursday evening, the committee narrowed the list to 11 names. The identities of the 11 were not made public.

When I have written about the ASU controversy in past months, a continuing theme in responses from readers is that the governor "should just fire everyone involved" and start all over.

But neither Bentley nor any Alabama governor has unfettered authority to willy-nilly "fire" a public university trustee or executive.

As governor, Bentley names new ASU trustees when there is an opening, and his nominations must be approved by the Alabama Senate. But he cannot remove trustees without cause once they are confirmed.

As for key university officials, Bentley has just one vote on the board to remove them.    

But that doesn't mean Bentley does not have options in this case. At least two different sections of Alabama law appear to give him authority to deal with this situation.

One, Section 16-50-29, is in the part of the state code dealing with ASU trustees. It states: "It shall be unlawful for any member of the board to be financially interested in any contract or transaction affecting the interests of the university; to procure, or be a party in any way to procuring the appointment of any relative to any position of financial trust or profit; or to influence the appointment, nonreappointment, retention, dismissal or compensation of any employee of the university except through the prescribed procedures for such purposes, and the violation of this provision shall subject the member so offending to removal by the Governor or the board."

Please note that it states "by the Governor or the board." It appears that Bentley would rather the board deal with the issue. (The governor, who was working from home on Thursday following surgery, has said he will call a board meeting in the near future.) But that doesn't mean he couldn't act unilaterally if the board fails to act.

The other section of state law involves the Alabama Constitution.

Section 121 of the Constitution states that the governor "may require reports from officers of executive department and officers and managers of state institutions." That is what Bentley did when he opened the probe of allegations against ASU raised by it former president.

The Constitution goes on to state that "false reports or failure to file reports constitutes impeachable offense."

The section reads further: "The governor may require information in writing, under oath, from the officers of the executive department, named in this article, or created by statute, on any subject, relating to the duties of their respective offices, and he may at any time require information in writing, under oath, from all officers and managers of state institutions, upon any subject relating to the condition, management and expenses of their respective offices and institutions. Any such officer or manager who makes a willfully false report or fails without sufficient excuse to make the required report on demand, is guilty of an impeachable offense."

Again, it remains unclear whether Bentley will attempt to use either of these sections of the law to act against ASU officials cited in his probe.

But he should be concerned that having two trustees who are involved in this controversy also so critically involved in the presidential search could taint the entire process.

The credibility of ASU's board and administration have taken huge hits in recent months, starting with the forced ouster of former President Joseph Silver, who initially raised questions about financial dealings with the university. Another hit involved a successful lawsuit in which multiple women alleged sexual harassment and failure to respond to the harassment by key ASU administrators. ASU has taken no public action against those involved, and even issued a statement disagreeing with the findings of a federal appeals court.

In that context, having Wiggins and Dean involved in the search could throw a cloud over whoever is chosen to lead the university. That certainly would be true of anyone who might be chosen if they have any connections to those involved in either of these controversies.

Frankly, it is difficult to see how any nationally recognized and academically strong college administrator would apply for the ASU presidential post after the way the board forced out former president Joseph Silver. The ongoing controversies serve only to make the post even less attractive to those truly qualified.

If Wiggins and Dean have the best interest of ASU at heart, they would at least resign from the presidential search committee, if not the board of trustees.

If they don't -- or if the search committee does not suspend its process until these issues are resolved -- they may force Bentley into the position where he feels he has no choice but to act to protect ASU's declining credibility and to ensure that the next ASU president is not chosen primarily to protect those under fire.

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Ken Hare was a longtime Alabama newspaper editorial writer and editorial page editor who now writes a regular column for WSFA's web site. Email him at khare@wsfa.com.

Copyright 2013 WSFA 12 News.  All rights reserved.

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