In 1996, former Gov. Kirk Fordice said the debate over whether to confirm the four white males he appointed to the Mississippi college board should not be a black and white issue but a matter of competence.
After Sens. Gray Tollison and Grey Ferris voted with the African American members of the Senate Universities and Colleges Committee to block those appointments, then-Sen. Tommy Robertson of Moss Point ventured to the Capitol press room to proclaim it was not a black and white issue, but “a gray issue” — alluding to the first names of the swing vote senators.
Later that year, Fordice appointed four new members: two white males, a white female and an African American male. He called a special session where the four were confirmed.
The four did not try to serve prior to the special session. And the governor did not try to seat the four and let them serve unconfirmed until the next regular session. Fordice was adhering to what appears to be the letter of the law, ensuring the appointees were confirmed by the Senate before they began serving.
But instances of gubernatorial appointees serving on the college board and other boards and commissions prior to Senate confirmation occur regularly. It is another gray issue.
Earlier this month, Gov. Tate Reeves appointed four new members to the college board, three members to the Mississippi Community College Board and two members to the Board of Education. The nine members already are serving and presumably will not be confirmed by the Senate until the 2022 session.
Issues surrounding the appointments, primarily by the governor, to the roughly 200 boards that govern various agencies — ranging from big ones like the Board of Education to smaller ones like Board of Cosmetology — are the black hole of state government.
More than two weeks ago, both the offices of Secretary of State and of the governor were asked for a list of appointees made recently to some of the smaller boards. Neither agency has provided that list. The appointments might not be available until they are provided to the Senate during the 2022 session when their confirmation will be considered. Yet, they already are serving on public boards that are funded with taxpayer funds.
Then there is the question of when the appointees can begin serving. The attorney general, in a 1977 opinion, said when a “term is about to expire and will expire by limitation before the next session of the Senate, the governor should nominate a person to fill the vacancy,” and “if he fails to do so, he cannot make a valid appointment to fill such a vacancy in the vacation of the Senate.”
A 2015 document compiled by the Legislature’s Performance Evaluation and Expenditure Review Committee reaches essentially the same conclusion.
The PEER report adds that in many instances, the governor appoints someone after the session ends and that appointee begins serving prior to Senate confirmation.
“This practice is in direct contravention of” state law, PEER concluded. Other opinions and interpretations reach a different conclusion — that appointees can serve before Senate confirmation. Remember we are talking about gray issues.
Fordice followed what appears to be the law in 1996 after the debacle that occurred with his four white men. But in 1992, only one of his college board appointees was confirmed. After the session, he appointed three new members who began serving immediately. They were not confirmed until the 1993 session.
Part of the reason that legislators and governmental entities do not challenge the practice of appointees serving before their confirmation is that many of the boards operate short-handed. Once a new appointee is named, his or her services are needed as soon as possible for multiple reasons, including the most basic need of having a quorum to conduct business.
This past session, two bills were filed that would have taken appointments from the governor not made in a timely manner and would have given them to the lieutenant governor. State Rep. Timmy Ladner, R-Poplarville, said he filed the bill because of the long delay in filling multiple vacancies.
Sen. David Parker, R-Olive Branch, filed similar legislation. He said he was hoping to spur action on vacancies on the State Workforce Investment Board. Reeves was supposed to appoint two members to the board recommended by Speaker Philip Gunn, but the governor thus far has not.
Overall, Parker said he understands the issues Reeves had making appointments to the various boards and commissions while he was consumed with COVID-19 issues.
Still, it seems a basic function to ensure people are in place to govern the various agencies of state government. But multiple governors, not just Reeves, have struggled with that basis function.
Former Gov. Phil Bryant proposed a program to consolidate and eliminate some of those boards and commissions. Limited progress was made on Bryant’s goal, but in general the black hole remains.