FRANKFORT, Ky. — Democratic Kentucky Gov. Andy Beshear has issued an executive order overhauling the board overseeing the state’s broadband network KentuckyWired, throwing another wrench into a contentious lawsuit the network is entangled in.
In his Wednesday order, Beshear cited a Kentucky Supreme Court decision in June as authority to invalidate a state law passed this year by the Republican-controlled state legislature that overhauled the leadership and board for the Kentucky Communications Network Authority, or KCNA.
That state law, House Bill 314, removed the majority of Beshear appointments from the board and replaced the majority of the board with appointments made by Republican state constitutional officers. Beshear’s order would revert the board to its previous makeup before the passage of HB 314.
During a Thursday press conference, Beshear said the board under HB 314 was an “unconstitutional board.”
He said the state’s highest court had ruled — in a case involving appointment power over the state fair board — that “a governor has to appoint the majority of members of a board.” He said under HB 314, he only appointed two members of the board which is “far from the majority.”
“That is the law, and it’s the law under two sections of the Constitution,” Beshear said. “An unlawful, unconstitutional board isn’t going to be able to settle any major lawsuit — won’t be able to take that action, just simply doesn’t have the authority.”
Republicans argued HB 314 was needed to provide better oversight over the network that’s been entangled in a lawsuit for years with the private company Accelecom, or Open Fiber Kentucky Company LLC, which it partnered with to manage and find commercial use for the internet capacity of the network. The ongoing contract disputes before Franklin Circuit Court Judge Phillip Shepherd include Accelecom seeking permission to connect certain customers to the “middle mile” network.
In a statement provided Thursday evening through a spokesperson, Kentucky House Speaker David Osborne, R-Prospect, said HB 314 “follows the roadmap” provided by prior court rulings.
“Now the governor has gone clear off the map, declaring laws void at his whim, a power section 16 of the constitution reserves only to the General Assembly. This is the inevitable result of courts repeatedly giving him free rein to disregard the law. Taxpayers deserve better,” Osborne said.
Osborne said the state broadband network has been “plagued by years of delays, millions in cost overruns and costly contract disputes” and has estimated long-term obligations of more than $1 billion.
“Kentucky needs the right leadership and oversight to protect its interests and hold those responsible accountable,” Osborne said.
Dustin Issacs, a spokesperson for the Republican caucus in the Kentucky Senate, declined to comment because of the pending litigation.
Years-long lawsuit hurdles toward a trial
Beshear issued the executive order ahead of a Thursday morning court hearing in Shepherd’s courtroom for the lawsuit between the state and Accelecom, the last scheduled hearing before a planned trial date in November.
KCNA is the agency administering the network of hundreds of miles of fiber optic cable built across the state to provide high-speed internet connection to every county seat.
That network serves as a “middle mile” of internet connection, and private companies then build a “last mile” of internet connection directly to homes and businesses. The network serves the school districts, court system, executive branch offices, public universities, and community and technical colleges.
In a Wednesday afternoon email, one of the board members appointed after the passage of HB 314 pushed back on the authority of the executive order to remake the board.
Russ Hensley wrote the Kentucky Supreme Court decision that Beshear relies on in his executive order does not allow for “replacing KCNA’s statutory Board by executive order.”
Jim Barnhart, the chief information officer within the Commonwealth Office of Technology, had sent an email to Hensley and other board members telling them that they were terminated from their board membership and that an upcoming Friday board meeting was canceled because of the executive order.
“I do not accept that this executive order lawfully ends my service, and I reserve my objections to its validity,” Hensley wrote.
Shepherd during the Thursday morning court hearing also questioned the authority of Beshear’s executive order. He said he believed HB 314 still had “full force and effect”.
“I know he’s a very good lawyer. And I think I also know that he realizes he can’t declare statutes unconstitutional,” Shepherd said about the order. “If the governor disputes that, he’s welcome to come in here and file a motion to intervene and to raise the arguments that he’s made,” Shepherd said.
In response to Shepherd’s comments, Beshear said Shepherd was a “good judge” but that Shepherd knows “he’s bound by Supreme Court precedent.”
During the court hearing, Shepherd said he did not believe the circumstances involving the KCNA board — a network that has had “controversy” over its implementation stretching back to former Gov. Steve Beshear’s administration — were “in the same category as the cases that were decided by the Kentucky Supreme Court.”
“I’m not sure that this is the situation that the governor would want to make a test case for how he exercises his reorganization authority under the recent Supreme Court decision,” Shepherd said, mentioning there’s probably a “legitimate dispute” over how HB 314 reorganized the board.
Regardless of constitutionality questions, Shepherd said he still believed the contract disputes could be decided without weighing in on the constitutionality issue. He gave attorneys for the state until Oct. 19 to see if there is any chance for the parties to go into mediation before the November trial.
“It is not a fully operational program now, and the longer it stays in litigation, the more the public interest is going to suffer,” Shepherd said. “It seems to me like that the consequences of not reaching an agreement could be catastrophic to all sides.”
This story has been updated with a statement from Kentucky House Speaker David Osborne. Additionally, this story has been updated to clarify who received an email sent by Jim Barnhart.
This story was originally published by the Kentucky Lantern.
