Background
During the 2021 and 2022 legislative sessions, the Kentucky General Assembly enacted two statutes that restructured appointment authority over major executive branch entities. House Bill 518 (the “Fair Board Act”) reorganized the Kentucky State Fair Board by transferring majority appointment power—eight of fifteen voting seats—from the Governor to the Commissioner of Agriculture, while also designating the President of the Senate and Speaker of the House as ex officio nonvoting members and declaring the board “accountable” to the General Assembly. House Bill 334 (the “EBEC Act”) expanded the Executive Branch Ethics Commission from five to seven members, allocating only two appointments to the Governor and one each to the Attorney General, Agriculture Commissioner, Treasurer, Auditor, and Secretary of State, with each officer holding exclusive removal authority over his or her own appointee.
Governor Andy Beshear vetoed HB 518; the General Assembly overrode the veto. He subsequently filed suit in Jefferson Circuit Court challenging both statutes on separation-of-powers grounds. The Franklin Circuit Court found the EBEC Act unconstitutional, but the Court of Appeals reversed. On the Fair Board Act, the Franklin Circuit Court similarly invalidated key provisions, and the Court of Appeals affirmed on narrower grounds. The conflicting results prompted the Supreme Court of Kentucky to grant discretionary review in all three related dockets.
The core constitutional question was not whether the General Assembly may participate in shaping the composition of statutory executive bodies—it may—but whether it may do so in a manner that so fragments executive appointment and removal authority that the Governor loses the supervisory capacity necessary to discharge the constitutional duty to ensure faithful execution of the laws.
The Court’s Holding
In an opinion by Justice Keller, the court reversed in part and affirmed in part as modified, holding that both HB 518 and HB 334 unconstitutionally intrude upon executive power in violation of Sections 27, 28, 69, and 81 of the Kentucky Constitution. The court grounded its analysis in the “double-barreled” separation of powers recognized in Legislative Research Commission v. Brown, 664 S.W.2d 907 (Ky. 1984): Section 27 affirmatively confines each department to its own sphere; Section 28 categorically prohibits one department from exercising power belonging to another. Section 93, which permits the Legislature to prescribe the “manner” of appointment of inferior officers, is procedural. Sections 27 and 28 are structural. Structure controls procedure, not the reverse.
The court held that Section 81’s command that the Governor “shall take care that the laws be faithfully executed,” read together with Section 69’s vesting of “supreme executive power” in the Governor, requires that executive governance preserve a chain of accountability through which the Governor retains meaningful supervisory authority over those who execute the law. The Governor need not personally hold all appointments, but the constitution does not permit the Legislature to design a structure in which the Governor lacks both majority appointment control and removal authority over the members of an executive body. A constitutional duty without corresponding supervisory power is, in the court’s phrase, “ceremony”—not accountability. Both statutes failed that test: HB 334 distributed appointment and removal authority across six independently elected officers, and HB 518 stripped gubernatorial majority appointment while embedding the Legislature’s own structural proximity to the board through ex officio membership and “accountability” language directed at the General Assembly.
The court further held that the Fair Board Act’s self-governance provision allowing voting members to elect their own chair could not stand independently because the voting membership itself was unconstitutionally constituted. The transition provision in HB 518 barring the Governor from filling certain expiring terms was likewise struck as part of the same unconstitutional design to transfer effective appointment control away from the executive.
Key Takeaways
- Section 93’s grant of legislative authority to prescribe the “manner” of appointment is limited by the structural separation-of-powers provisions of Sections 27 and 28; the Legislature may regulate appointment mechanics but may not redistribute appointment and removal authority in a manner that eliminates meaningful gubernatorial supervision of executive entities.
- The Governor’s Section 81 duty to ensure faithful execution of the laws requires, as a constitutional matter, supervisory authority sufficient to direct, discipline, or remove those charged with executing the law—appointment authority alone, without corresponding removal authority, does not satisfy that requirement.
- Legislators may not sit ex officio on executive boards, and statutory “accountability” language tethering an executive board to the General Assembly raises equivalent structural concerns when combined with the removal of gubernatorial appointment and removal power.
- The presumption of constitutionality does not override express structural constitutional limits; where a statute’s design eliminates the chain of executive accountability, the court will strike it regardless of the Legislature’s broad authority to create and define statutory offices.
Why It Matters
The decision is a significant state-level separation-of-powers ruling with direct implications for legislatures that use appointment restructuring as a tool to shift policy control away from a sitting governor. The Kentucky Supreme Court drew a firm line between permissible legislative prescription of appointment mechanics—requiring Senate confirmation, mandating qualifications, structuring staggered terms—and impermissible structural redesign that eliminates executive accountability. The court’s framework, which asks whether a sufficient chain of accountability survives rather than whether the Governor retains any role at all, provides guidance for evaluating similar schemes in other states with analogous constitutional provisions.
The ruling also underscores that structural separation-of-powers violations can arise from legislative design even without a single legislator sitting on the challenged body. The court rejected the argument that nonvoting legislative members or indirect “accountability” mandates are constitutionally benign, holding that executive power is compromised by structural proximity to legislative influence—not only by outright legislative control. Attorneys advising state agencies, governors’ offices, or legislative counsel on the design of executive boards should treat this decision as a cautionary benchmark for the outer limits of appointment-power redistribution.