Out with the baby, or just with the bathwater? Now that Governor Herbert won’t assemble a USBE nomination committee, what next?

Due to a 2014 court case, Governor Gary Herbert won’t be putting together a state board of education recruiting and nomination committee this year, even though it’s required by law.

Out with the baby, or just with the bathwater? Now that Governor Herbert won't assemble a USBE nomination committee, what next?
by Daniel Burton

Under Utah law, the governor is required to assemble a committee for the purpose of recruiting and preparing a list of candidates for the Utah State Board of Education (USBE). The committee narrows down the candidates (after recruiting and reviewing applications), then, sends to the governor a list of at least three of the candidates for the USBE, along with pertinent information about them. The governor then forwards two of the names for each board district to the ballot. Voters select one during the general election.

However, according to US District Judge Clark Waddoups’ opinion last year, the “criteria used for selection are completely discretionary[,]” which means that some parts of the statute establishing the nominating committee violate both the First and Fourteenth Amendments of the Constitution.  (Find the full opinion at the bottom of the post).

“As the statute is written and applied it appears to be a mechanism where a certain class of candidates is excluded from the election process,” said Waddoups.

To wit:

“[T]he statute essentially is a standardless one because there is no measuring stick by which to determine why one candidate is selected over another. As a result, Utah’s ballot for these positions is not genuinely open to all under reasonable requirements. For these reasons, the court concludes that Section 20A-14-104(5)(b) through (6)(k) of the Utah Code is facially unconstitutional. The court further concludes that Section 20A-14-105 is also facially unconstitutional.”

(Emphasis is mine)

Although several ways to remedy the problem were proposed during the 2015 Utah Legislative Session, all failed to pass, leaving the statute unchanged and, still, unconstitutional.

In a statement through spokesman Jon Cox, the Governor said that he was going to wait on the Utah Legislature to fix the law.

“The governor will not assemble the nominating committee because of last year’s court ruling that the current process is unconstitutional. Several legislative solutions to this problem were proposed during the 2015 general session, but none of them passed both the House and Senate. The governor encourages legislative leaders to continue working together to find a resolution to this important issue.”

Out with the baby, or just the bathwater?

Without an fix by the legislature,  the governor is, in some ways, between a rock and a hard place. He remains obligated under 20A-14-104(2) to by, November 1 before a general election year, assemble a nominating commission. However, parts of that law are unconstitutional.

But what if the law could be tweaked to account for Waddoups concerns? Despite pervasive complaints that the nomination process is ripe for favoring allies of the governor, perhaps there’s a simple fix that the Utah Legislature could apply. Rather than a completely new process–such as the convoluted, hybrid system proposed by the Sutherland Institute–what if the legislature could account for the ambiguity in nomination criteria to prevent, or at least limit, favoritism in the nomination process?

The crux of the issue leans on Utah Statute Section 20A-14-104(5)(b) through (6)(k), the section that describes the nominating committee’s process of candidate evaluation, and 20A-14-105, which describes the governor’s selection of the two names to go on the ballot. Neither contain specific and objective criteria for selecting candidates for the ballot, but vest in the nominating committee and the governor “with authority to decide which ‘individuals are entitled to exercise First Amendment rights’ before the electorate[.]”

What if, on the other hand, the criteria was narrowed down to specific qualifications, such as previous experience in education, administration, business, finance, public service, or some other similar board, weighted by the importance the Utah Legislature for which ever criteria is most important? It would not be difficult for the Utah Legislature to change the criteria into a list of weighted measures, the review and certification by the nomination committee and governor of which would certify a candidate for the ballot, regardless of view-point.

By narrowing the language, it allows candidates to measure themselves against specific criteria, and to challenge the nominating commission when candidates are dismissed–or selected–on criteria that do not match that in statute.

This would also have the added benefit of pushing back on accusations of favoritism by the governor in who is selected for the ballot. Yes, the folks the governor knows are going to get further in the process–but it’ll be harder to appoint people without appropriate experience and qualifications.

It has the added benefit of saving us from a fight over a new fangled selection method, including whether board member elections should be partisan, appointed wholly  by the governor…or some other convoluted method.

The governor didn’t give his policy preference in his statement (which has got to drive legislative leaders nuts), but if the Utah Legislature tweaks the law to make the criteria objective rather than subjective, perhaps weights the criteria, and leaves the commission in place, Governor Herbert might have to appoint a recruiting and nominating committee. Not hard to do–I’m sure he’s got a file full of qualified individuals he’d like to put on the USBE (again, he does not appoint the UBSE), as well as another file full of smart people to review the applicants.

Waddoups-Decision on Board Nomination Committee

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