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

MONTGOMERY, AL (WSFA) - If he chooses todo so, Gov. Robert Bentley appears to have the legal authority to remove twoAlabama State University trustees cited for alleged conflicts of interests in aforensic audit of the university commissioned by the governor.

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

When asked aboutthe governor's intentions Thursday, a spokesman said only, "No decisionhas been made."

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

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

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

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

"The issues — and questions — raised bythe FSS report are the basis for my request to temporarily halt the operationsof the Presidential Search Committee.  I believe we can all agree the nextpresident 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 continuingto meet despite the governor's request. At a meeting Thursday evening, thecommittee narrowed the list to 11 names. The identities of the 11 were not madepublic.

When I have written about the ASUcontroversy in past months, a continuing theme in responses from readers isthat the governor "should just fire everyone involved" and start allover.

But neither Bentley nor any Alabamagovernor has unfettered authority to willy-nilly "fire" a publicuniversity trustee or executive.

As governor, Bentley names new ASUtrustees when there is an opening, and his nominations must be approved by theAlabama Senate. But he cannot remove trustees without cause once they areconfirmed.

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

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

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

Please note that itstates "by the Governor or theboard." It appears that Bentley would rather the board deal with theissue. (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'tmean he couldn't act unilaterally if the board fails to act.

The other sectionof state law involves the Alabama Constitution.

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

The Constitution goes onto state that "false reports or failure to file reports constitutesimpeachable offense."

The section readsfurther: "The governor may requireinformation in writing, under oath, from the officers of the executivedepartment, named in this article, or created by statute, on any subject,relating to the duties of their respective offices, and he may at any timerequire information in writing, under oath, from all officers and managers ofstate institutions, upon any subject relating to the condition, management andexpenses of their respective offices and institutions. Any such officer ormanager who makes a willfully false report or fails without sufficient excuseto make the required report on demand, is guilty of an impeachable offense."

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

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

The credibility of ASU's board and administration havetaken huge hits in recent months, starting with the forced ouster of formerPresident Joseph Silver, who initially raised questions about financialdealings with the university. Another hit involved a successful lawsuit inwhich multiple women alleged sexual harassment and failure to respond to theharassment by key ASU administrators. ASU has taken no public action againstthose involved, and even issued a statement disagreeing with the findings of afederal appeals court.

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

Frankly, it is difficult to see how any nationallyrecognized and academically strong college administrator would apply for theASU presidential post after the way the board forced out former presidentJoseph Silver. The ongoing controversies serve only to make the post even lessattractive to those truly qualified.

If Wiggins and Dean have the best interest of ASU atheart, they would at least resign from the presidential search committee, ifnot the board of trustees.

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


Ken Hare was a longtimeAlabama newspaper editorial writer and editorial page editor who now writes aregular column for WSFA's web site. Email him at

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