In January 2012, Chas Roemer offered a contract for employment as superintendent of education to John White, on behalf of BESE. The contract included a $275,000 salary, and a provision allowing White to continue to serve in that capacity, even after the contract terminates on January 11th, 2016, until the succeeding BESE appoints someone to fill the position.
As is the case in all appointments, the law states that the term of an appointment ends with the term of the person, or official, making the appointment. In this case, BESE. Per Revised Statute 1:10, unless clearly indicated, the word “person” includes a body of persons, whether incorporated, or not.
When John Bel Edwards assumed the role of governor on January 11th, 2016 the makeup of BESE changed, as well. Three BESE members had secured reelection. Five members were newly elected, and three members were new governor appointees. Even if only one member had been replaced, the board is considered a new board. The new board is tasked with the duty and responsibility of appointing a superintendent. The newly selected president of BESE, Jim Garvey, announced at his first meeting that while White’s contract had expired, he would stay on as a month to month employee because the new board members hadn’t had enough time to get to know the superintendent.
Six months later, at the June meeting, Garvey announced that the superintendent’s evaluation that would normally be conducted in June would be pushed back a month to give the new board members more time. When the evaluation was finally conducted, there was still no mention of making an appointment to the position of superintendent; whether it be a reappointment of White, or a new appointment. Now, we are seventeen months after the expiration of White’s contract, and still, no mention of an appointment by the BESE board. The board has even undergone a change in command. The new president of BESE is Dr. Gary Jones.
After asking BESE member, Kathy Edmonston to request the appointment be placed on the agenda, and not getting the response I’d hope for, I reached out to Dr. Jones to remind him of the duty and responsibility of BESE to appoint a superintendent. The response I received from Jones, though I believe was with the utmost sincerity, is a blatant denial of the democratic process.
“Having discussed it many times over the past 15 months, I’m convinced that there is little appetite for this item among board members at the current time. To my knowledge, there has been no change in the initial positions of the board members on this issue. Consequently, I personally see no value in placing such an item on the agenda.”-BESE President, Dr. Gary Jones
This is a clear indication that BESE, or at least some of BESE, has no intention to discuss, or appoint, a superintendent. The only reason for this is that certain members want White to remain as superintendent to finish what he has started, but they know they don’t have the 2/3 majority vote to appoint him. Their answer to this problem is to avoid the appointment altogether.
Some people I’ve talked with are convinced that BESE is within their right to not appoint a superintendent, and that White can serve, indefinitely, on a month to month basis. Fortunately, when the Louisiana Constitution was revised in 1974, the delegates were very clear on how political appointees would be treated.
Now, one might think that the superintendent of education is not a political appointee because it is a position that isn’t actually appointed by the governor. Per the constitution, the superintendent of education is, in fact, a member of the governor’s cabinet; even though appoint by BESE, and not the governor. If you recall, the revised constitution originally left the superintendent as an elected position, but left the option for it to be made appointive. Here is the actual statute that was established per the constitution.
Notice in Section C, it clearly states that the length of an appointed superintendent’s contract cannot extend past the term of the board making the appointment. This is something that applies to all appointments, but had to be included in this statute because when introduced bills, can’t amend multiple statutes. To ensure that the superintendent is held to the same laws applicable to all appointments, the language was included in the statute. However, if you read further, you see in Section E that it states that if the position is made appointive, it shall be pursuant to Article IV, Section 20 of the Constitution of Louisiana. This particular article is articulated in RS 24:14, seen below.
There isn’t anything particularly interesting in Section B of the statute. It pretty much iterates that all appointments requiring Senate confirmation, whether an initial appointment or a “reappointment” of the same person, the appointing official must submit the appointment to the Senate for confirmation. To date, BESE has not submitted a name to the Senate for confirmation.
If you read the statute further into Section H, it states that if a person is not submitted for confirmation, reconfirmation, or submitted and not confirmed per Section K, the position is considered vacant.
Below, is the highlighted Section K which clearly states that if an appointing official (BESE) fails to submit a name for confirmation, the previous appointee may serve in that capacity until the last day of the second legislative session after their appointment expires.
To put all of this in simple layman’s terms, yes, BESE has neglected its duty and responsibility to appoint a superintendent in an effort to thwart the democratic process; however, the law does allow for White to continue in the capacity of his appointment; just not indefinitely. The statute originally did not include specific time limits regarding the filling of appointments; however, in 2008, Senator Rob Marionneaux introduced a bill to allow incoming governors and officials until October 31st to fill appointments. The bill passed but not without an amendment on the House floor to extend the time by none other than Representative Noble Ellington, current Policy Advisor to Gov. John Bel Edwards.
In short, the time in which John White can legally serve as superintendent without being reappointed by BESE is drawing near. If BESE doesn’t vote favorably to reappoint and submit his name to the Senate for confirmation, White must vacate the position by June 8th, the end of this legislative session. On that day, the position of superintendent of education will be considered vacant.