Appointing Lawmakers to Executive Boards Violates the State Constitution

Virginia constitutional convention, 1830

The boards of 21 state entities are exempt from the state law prohibiting legislators from serving on boards, commissions and councils within the executive branch. They include:

Branch Pilots
Southwest Virginia Higher Education Center
Southern Virginia Higher Education Center
New College Institute
Teacher Education and Licensure
Virginia Interagency Coordinating Council
Board of Veterans Services
Roanoke Higher Education Authority
Online Virginia Network Authority
Virginia Geographic Information Network Advisory Board
Standards of Learning Innovation Committee
Virginia School for the Deaf and the Blind
Substance Abuse Services Council
Criminal Justice Services Board
State Executive Council for Children’s Services
Virginia Board of Workforce Development
Volunteer Firefighters’ and Rescue Squad Workers’ Service Award Fund Board
Secure and Resilient Commonwealth Panel
Forensic Science Board
Southwest Virginia Cultural Heritage Foundation
Virginia Growth and Opportunity Board

Not every one of these organizations has a member of the General Assembly serving on its board, but many do. For example, at the Online Virginia Network Authority, a collaborative initiative to promote online learning delivered by public universities, eight of twelve board members serve in the legislature. Another entity, the SOL Innovation Committee, has four delegates and three senators on its board along with 28 local education administrators.

The author of the following legal article, who goes by the pen name of Publius, argues that permitting legislators to sit on executive-branch boards is an unconstitutional violation of Virginia’s constitutional separation of powers.

— JAB


Would It Be Constitutional to Appoint a Virginia Legislator
to a Board of Visitors of a Virginia Public University
or Other Executive Branch Boards?

by Publius

 The question arises whether it would be constitutional to appoint legislators to serve on the Board of Visitors of a public university in Virginia or on other Executive Branch Boards. Based on the clear constitutional text, on the practical consequences, on the decisions of the Virginia Supreme Court, and on decisions elsewhere, such an appointment would violate the separation of powers.  The answer to the question is not close.

I. The Separation of Powers Clauses

There are two Separation of Powers Clauses in the Virginia Constitution. Article I, § 5, titled  “Separation of legislative, executive, and judicial departments,” requires

That the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct;

And Article III, § 1, titled “Division of Powers,” provides:

The legislative, executive and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others, nor any person exercise the power of more than one of them at the same time;

Appointing a legislator to a university’s Board of Visitors would legislatively interfere with executive branch functions, with no necessity for doing so, thus violating the Separation of Powers Clauses as they have been interpreted by the Virginia Supreme Court. Even more clearly, such an appointment would result in the same person exercising both legislative and executive functions at the same time, with no justification whatever, thus violating the clause I have italicized from Article III, § 1.

These restrictions are not mere formalities. They are designed to protect the people by preventing the concentration of power in one or a few individuals, or in any one branch of government. Each legislator shares in the awesome power to make laws for the entire Commonwealth, including for its universities. No legislator may augment that power by also sharing in the executive-branch power to administer those universities.

II. The Boards of Visitors

The Boards of Visitors of Virginia’s public universities are plainly state agencies in the executive branch, and courts have treated this fact as obvious.[1] Similarly, the General Assembly’s Joint Legislative Audit and Review Commission has recognized that these Boards are part of the executive branch.[2] The Governor appoints persons to the Boards of Visitors,[3] and the Governor can remove Visitors for “malfeasance, misfeasance, incompetence, or gross neglect of duty.”[4] This gubernatorial appointment and removal power plainly locates these Boards in the executive branch.

These Boards exercise executive authority and perform executive functions. They supervise and administer large institutions with substantial assets, many employees, and many students, and in some cases, hospitals and medical practices. They are statutorily authorized to manage their institution’s funds, appoint its president and its faculty, fix salaries and tuition, and buy and sell real estate.[5] They are authorized to regulate parking and traffic, the hiring and firing of employees, and the admission, discipline, and expulsion of students.[6] They are instructed to manage their institution’s endowment[7] and given many powers necessary for the management of medical centers.[8] They have law enforcement responsibilities; they are authorized to establish a campus police department[9] or, at the Board’s election, require a contiguous local government to provide police protection on campus.[10]

III.  Decisions of the Virginia Supreme Court

The Virginia Supreme Court has repeatedly recognized that some degree of “incidental encroachment” between the functions of coordinate branches of government is “necessary and permitted.”[11] Any system of checks and balances requires some intersection of the powers of the separate branches. The legislature may delegate some of its authority to the executive branch if it provides appropriate standards, and many of the court’s separation-of-powers decisions are about the sufficiency of the standards accompanying such delegations.[12] The question here is not about one branch voluntarily delegating some of its powers to another, but the more troubling issue of one branch interfering with the functions of another.

Our Supreme Court has long said that the separation of powers is violated “when one branch exercises the ‘whole power’ of another.”[13] But this “whole power” language is misleading if taken too literally. Significant exercises of the powers of one branch by members of another are prohibited, even though the invasion of the other branch is far less than total. In practice, the court has struck down any undue or unjustified interference with one branch by another.

Thus the legislature cannot require that certain ordinances enacted by a county board of supervisors be reviewed by a judge to determine, after a judicial hearing, that the ordinance was necessary.[14] This requirement obviously did not transfer the whole power of the board of supervisors to the judge. The judge could not initiate legislation; he could only review what had been enacted, and that only with respect to certain ordinances. But with respect to those ordinances, a significant part of the legislative function—to finally determine what new laws were necessary—was unconstitutionally transferred to a judge.

Conversely, the legislature cannot exercise or interfere with the judicial power. Thus the legislature cannot restrict the judicial power to hold in contempt a litigant who lied to the court about a scheduling matter.[15] It did not matter that the contempt power is only one small part of the judicial power, or that the legislature had not interfered with most of the cases in which judges hold litigants in contempt. Similarly, the legislature cannot authorize or require the reopening of a final judgment previously rendered by a court.[16] And this was so even though the reopening of judgments applied to only some cases and to only a single issue within each case, and even though the original power to decide the cases remained with the courts. It was enough that an exercise of a significant part of the judicial function—to decide when and whether to reopen final judgments—had been directed by the legislature.

The Virginia Supreme Court’s most recent and most extensive decision on legislative interference with the executive branch is Taylor v. Worrell Enterprises.[17] The court explained that “the proper inquiry focuses on the extent to which [the challenged law] prevents the Executive Branch from accomplishing its constitutionally assigned functions.”[18] “[W]here the potential for disruption is present,” the court must “then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority” of the legislature.[19]

On the facts in Taylor, the court found that a law requiring the Governor to make records of his long-distance phone calls available under the Freedom of Information Act violated the separation of powers. The compelled disclosure of the data “could provide a basis for public speculation” that would have a “chilling effect on the Governor’s use of the telephone for conducting the Commonwealth’s business” and thus impair his ability to perform his duties.[20] It was enough that disclosure “impairs, though it does not completely destroy, the ability of the executive to perform his constitutionally required duties.”[21]

IV. Appointing Legislators to Executive Branch Boards

No decision of the Virginia Supreme Court directly addresses the appointment of legislators to executive branch boards or offices. But it is obvious that a legislator appointed to a Board of Visitors would quite literally exercise the whole power of a Visitor. And far from there being any “overriding need” for such appointments, there is no need whatever. Appointing legislators to Boards of Visitors would be a wholly gratuitous and unjustified violation of the separation of powers.

A legislator serving on an executive branch board would interfere with the executive far more directly than in Taylor v Worrell Enterprises. Such a legislator would inherently be exercising executive functions. And he would be a constant presence in the executive deliberations of all other members of the Board. He would not just arouse curiosity about what they discussed on the telephone—the facts of Taylor. He could carry the substance of every discussion back to the legislature. This would include discussions in executive sessions exempt from the Freedom of Information Act—discussions of personnel, litigation, and other confidential matters. He could express legislative disapproval, or threaten legislative retaliation, with respect to any matter at any time. He could influence the Board’s discussions and debates on every issue before it. The intrusion into the functions of a separate branch would be deep, persistent, and continuous. As courts elsewhere have said, the only purpose of putting him there would be to legislatively interfere with the functions of the executive branch.[22]

V. Decisions Elsewhere

The Virginia courts have not squarely addressed whether legislators can be appointed to executive-branch offices, but other courts have. These decisions are not binding in Virginia, but they are persuasive.

     A. Decisions Squarely in Point

The Supreme Court of North Carolina held that it violated that state’s separation of powers clause to appoint legislators to serve on the North Carolina Environmental Management Commission, which performed executive functions.[23] This decision interpreted language substantially identical to that of the Virginia Constitution: that the powers of the three branches shall be “separate and distinct.” The opinion helpfully reviews several opinions from other states.

The Supreme Court of Appeals of West Virginia held that it violated that state’s separation of powers provision to appoint legislators to serve on the State Building Commission.[24] West Virginia copied its separation of powers provision verbatim from the Virginia Constitution.

The Supreme Court of Georgia held that it violated that state’s separation of powers provisions to appoint legislators to serve on the World Congress Center Authority, a board created to carry out the provisions of a particular statute.[25] The Georgia provision closely tracks Virginia’s, requiring that the powers of the separate branches be kept “separate and distinct.”

The Supreme Court of Indiana held that it violated that state’s separation of powers clause to appoint legislators to serve on the State Office Building Commission, or any other executive office or board.[26]

The Supreme Court of Kansas held that it violates that state’s separation of powers provision for legislators to serve on the State Finance Council, which exercised extensive executive powers.[27] The court reached this conclusion even though it explicitly rejected “a strict application of the separation of powers,”[28] and even though it said that legislators could serve on boards and commissions “where such service falls in the realm of cooperation” and “there is no attempt to usurp functions of the executive department.”[29] But the court found usurpation where the legislators served on a council that actually exercised executive functions.

The Supreme Court of Colorado held that it violated that state’s separation of powers clause to appoint legislators to a committee to investigate certain of the state’s legal rights and to authorize the filing of lawsuits to enforce those rights or to authorize the defense of lawsuits filed against the state.[30] These were executive functions that could not be entrusted to legislators.

     B. Closely Analogous Decisions

The Supreme Court of Virginia has relied on decisions interpreting the federal separation of powers in interpreting the state provisions.[31] There is no express separation of powers clause in the federal Constitution; separation of powers is implied from the separate delegation of legislative, executive, and judicial powers in Articles I, II, and III. From that implicit principle, the Supreme Court of the United States has concluded that legislators cannot be vested with the power either to appoint[32] or to remove[33] an official performing executive functions. Power to appoint or remove fell far short of actually entrusting legislators with those functions, but it interfered with executive-branch control of the official’s executive functions.

The U.S. Supreme Court has not had to decide whether the general principle of separation of powers precludes legislators from serving on executive-branch boards, because the federal Constitution contains an express prohibition: “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”[34] But the Court has reached the same conclusion under general separation-of-powers principles. It held that appointing legislators to a committee with an executive function (voting government-owned corporate stock) violated the implicit separation-of-powers principle of the Philippine Organic Act.[35]

And the D.C. Circuit has held that it violates separation of powers to appoint the Secretary of the Senate and the Clerk of the House of Representatives as non-voting members of the Federal Election Commission.[36] These were not members of Congress expressly barred from holding another federal office. But they were legislative officials whose presence would inevitably influence other members of the Commission, thus violating the broader principle of separation of powers:

[W]e cannot conceive why Congress would wish or expect its officials to serve as ex officio members if not to exercise some influence. Even if the ex officio members were to remain completely silent during all deliberations (a rather unlikely scenario), their mere presence as agents of Congress conveys a tacit message to the other commissioners. The message may well be an entirely appropriate one—but it nevertheless has the potential to influence the other commissioners.[37]

The Supreme Court of Arizona held that legislative leaders could not appoint a majority of the Constitutional Defense Council, a legislative body with some executive functions, nor could legislators serve as non-voting advisory members.[38] The court agreed with the D.C. Circuit that even non-voting members “have the ability to influence the decisions of the board.”[39]

The Supreme Court of Alaska held that the legislature could not require legislative confirmation of executive branch appointments beyond those for which confirmation was required by the state constitution.[40] This fell far short of actually putting legislators on executive branch boards, but it legislatively interfered with executive control of those boards.

The Supreme Judicial Court of Massachusetts held that it violates that state’s separation of powers provision to authorize legislators to approve or disapprove decisions to hire or promote employees in the executive branch.[41] The Boards of Visitors of Virginia universities must approve the appointment, promotion, and salary of every member of the faculty.

Two state supreme courts have squarely held it unconstitutional for legislators to serve on boards of public universities. These decisions were based on state constitutional clauses more specific than general separation-of-powers principles, but as we shall see, the Virginia Constitution has a similar clause. The Supreme Court of Michigan held that a legislator could not serve on the Board of Regents of the University of Michigan, even though he had been elected by the people to both positions.[42] This decision was based on a constitutional clause providing that “No person elected a member of the legislature shall receive any civil appointment within this state ….”[43] The court expressly rejected the argument that “regents of the university are not State officers but only officers of the corporate body known as the board of regents of the university.”[44]

Similarly, the Supreme Court of Arkansas held that a legislator could not serve on the board of Southern State College.[45] This decision was based on a clause providing that “No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State.”[46] The court also relied on the state’s general separation-of-powers clause.[47]

Two other state supreme courts have held that a legislator may not even be employed by a state university, again relying on specific provisions addressing that question. When a tenured professor at Columbus College was elected to the Georgia legislature, she was forced to resign her position at the college.[48] A Georgia statute provided that “It shall be unlawful for (a) members of the General Assembly to accept or hold office or employment in the executive branch of the State Government, or any agency thereof ….” The professor argued that this statute violated her fundamental right to participate in the political process and to serve in the legislature if elected. Assuming that there was such a fundamental right, the Supreme Court of Georgia held that the statute served a compelling government interest by implementing the separation of powers.[49] And the court explicitly held that the college was “an agency of the executive branch of the state government.”[50]

The Supreme Court of South Dakota held that a cooperative extension agent for South Dakota State University could not be paid during her term in the legislature.[51] This decision was based on a conflict-of-interest clause in the state constitution, which said that no legislator could be interested, directly or indirectly, in any contract with the state authorized by any law passed during the legislator’s term of office. The legislature passed an appropriation for South Dakota State, and that appropriation was used to pay salaries, thus funding her employment contract. The court did not rely on the general separation of powers clause in the South Dakota constitution.

The Supreme Court of South Carolina has decided the other way, holding for example that legislators could serve on the board of the South Carolina Transportation Infrastructure Bank.[52] But the court recognized that South Carolina “is somewhat singular in the extensive involvement of the legislature in the powers of the executive and judiciary.”[53] And it quoted a treatise describing “South Carolina’s unique form of government in which the legislative takes a permanent position among the three theoretically equal branches of government.”[54] Decisions from South Carolina are no precedent for Virginia or other states that take separation of powers more seriously.

VI. The Personal Separation Clause

Virginia decisions on the separation of powers have addressed the broad principle and have not closely parsed the language of our state Constitution. But when that language is examined, there appears to be a specific prohibition on appointing a member of one branch to exercise the powers of another. Article III, § 1 provides:

The legislative, executive and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others, nor any person exercise the power of more than one of them at the same time;

The italicized clause appears to be a separate and distinct prohibition. No department may exercise the powers of the other two (the Departmental Separation Clause, in roman type), and no person may exercise the powers of two departments at the same time (the Personal Separation Clause, in italics). Appointing a legislator to an executive-branch agency or board appears to violate both clauses, but it unambiguously violates the second. The legislator appointed would be serving in the legislature, exercising the whole power of a legislator, and in the executive branch, exercising the whole power of a Visitor, at the same time.

This Personal Separation Clause is Virginia’s equivalent of the federal, Michigan, and Arkansas clauses that expressly prohibit legislators from holding any other office.[55] It applies not just to legislators, but to any person serving in any branch of government; no person in any branch can simultaneously serve in either of the other two branches.

Grammatically, the Personal Separation Clause is a dependent clause, attached to the main clause that requires the three departments to be “separate and distinct.” For at least two independent reasons, this does not affect the meaning of the clause. First, the clause was grammatically independent, unambiguously a separate prohibition, through Virginia’s first five Constitutions. The change from independent to dependent clause happened in the Committee on Final Revision and Adjustment, an editorial committee with no power to make substantive changes, in the Convention that produced the Constitution of 1902. This change was stylistic, not substantive; the clause still means what it meant as an independent clause in earlier Constitutions. The details of this drafting history are in the appendix.

Second, even if this Personal Separation Clause is treated as simply stating a purpose of the main clause, it is a purpose that is fully achievable, and it is a purpose that need never be violated. The Separation of Powers Clause is to be interpreted and enforced to the end that no person shall exercise the powers of two branches at the same time. There are plausible reasons, including checks and balances and the inevitable overlap of functions, for one branch to sometimes modestly intrude into the functions of another. There are reasons for creating modern administrative agencies that exercise mixed powers with respect to particular subject matters. But there are no good reasons to elect or appoint the same individual to serve in two branches of government at the same time. There are more than six million adult Virginians available to serve, and many of them would be qualified. To appoint legislators to executive-branch boards would be violating separation of powers for the sake of the violation—for the very purpose of imposing legislative influence or control on an executive-branch function.

The violation would seem obvious and flagrant if a legislator were appointed or elected to serve on the Supreme Court or as Secretary of an executive-branch department. The violation should be equally obvious, and it is equally flagrant, when a legislator is appointed to a Board of Visitors. Each Visitor exercises part of the executive-branch function. And the hope that other members of the Board might proceed uninfluenced by the legislative intrusion is delusional. Of course they would be influenced; as the D.C. Circuit said, that would be the very purpose of appointing a legislator in the first place.[56]

VII. The General Assembly’s View, and Some Counter Arguments

The General Assembly has generally recognized the impropriety of its members serving on executive-branch boards “responsible for administering programs established by the General Assembly.”[57] The statute expressly forbids such appointments and declares any other statutes that may provide for such appointments to be void.[58] But the Assembly has enacted a number of express exceptions to this principle.[59]

The mere fact that these exceptions have existed, and that no one has challenged them, does not mean that they are constitutional. It means only that no one has seriously considered the question and that the courts have had no occasion to rule. The North Carolina court considered a similar situation when it held that legislators could not serve on an executive-branch board. The litigants defending such appointments in North Carolina listed forty-nine other boards and commissions with legislative members.[60] The court ruled only with respect to the one board in the case before it. But it squarely rejected the relevance of the other forty-nine; the fact that it had become somewhat common to appoint legislators to boards and commissions did not make it consistent with separation of powers or foreclose adjudication of the issue when it was finally presented to the courts. Similarly in the South Dakota case, it did not matter that “other state employees have served in the legislature in the past.”[61]

The General Assembly recently attempted to create another exception, providing that legislators and persons appointed by legislators would constitute a majority of the Virginia Growth and Opportunity Board. The Attorney General advised the Governor that this structure would probably be unconstitutional.[62] There is no negative implication in this opinion that it would be permissible if legislators were a minority of the Board, or if only one legislator served on the Board. The Attorney General answered the only question he was asked, about a particular proposed statute that provided for majority control by the legislature. He expressed no opinion on any lesser number of legislators filling executive-branch positions.

If legislators could be appointed to multi-member bodies in the other two branches so long as they did not constitute a majority, little would be left of separation of powers. Recall that the D.C. Circuit and the Supreme Court of Arizona held that even non-voting members violated separation of powers, because their only plausible purpose was to intrude legislative influence into an executive-branch body. Suppose that a legislator, or three legislators, were appointed to the Virginia Supreme Court. We would not say it doesn’t matter because they would be only one or three votes on a seven-judge court. It is no different if a legislator is appointed to be one member of a Board of Visitors.

Finally, there is an overlapping provision in Article IV, § 4, which states the qualifications of legislators and explicitly prohibits holders of certain offices from serving in the legislature:

No person holding a salaried office under the government of the Commonwealth, and no judge of any court, attorney for the Commonwealth, sheriff, treasurer, assessor of taxes, commissioner of the revenue, collector of taxes, or clerk of any court shall be a member of either house of the General Assembly during his continuance in office; and his qualification as a member shall vacate any such office held by him.

Most of the offices specifically mentioned are local offices, and the Separation of Powers Clauses arguably refer only to the powers of the Commonwealth; the prohibition on holding certain combinations of state and local offices adds something that is not unambiguously there in the Separation of Powers Clauses. But the first phrase of Article IV, § 4, providing that “[n]o person holding a salaried office under the government of the Commonwealth” may serve in the legislature appears to be redundant with the two Separation of Powers Clauses. Considered in isolation, it might give rise to a negative inference that persons holding unpaid offices may serve in the legislature, and carrying it one step further, that legislators might be appointed to unpaid offices in the executive branch.

But this reading would strip any meaning out of the Personal Separation of Powers Clause in Article III as that clause applies to the legislature. It would permit legislators to serve in any unpaid office in either of the other branches of government. It is clear that the Constitution’s drafters were not avoiding redundancy in this area, or adhering to any drafting convention that each word or clause must add some meaning independent of all the others. We know this because they repeated the core of the Separation of Powers Clause, almost verbatim, in Article I, § 5 and Article III, § 1. Article IV, § 4 is about the qualifications of legislators and the intrusion of other office holders into the legislature. The application of Article III, § 1 under discussion here is about the converse: the intrusion of legislators into the other branches. Article IV, § 4 does not address that question.

There is an Opinion of the Attorney General allowing a legislator to serve for ninety days as a temporary assistant Commonwealth’s attorney, on the ground that that position is not mentioned in Article IV, § 4.[63] The Attorney General treated this as a local office and not as “a salaried office under the government of the Commonwealth.” Perhaps because he viewed the office as local, or perhaps because he was asked only about Article IV, § 4, the opinion does not mention either Separation of Powers Clause and is not an interpretation of them. The opinion relies in part on a Supreme Court decision interpreting a similar provision in Article VII, § 6, which prohibits dual office holding in local government.[64] The court did not mention the Separation of Powers Clauses either, and it explicitly refused to consider another constitutional clause that one side relied on. It read an implementing statute as based exclusively on Article VII, § 6 and as confining the dispute to that section.[65]

Perhaps the most relevant thing the court said is that it would follow the plain meaning of Article VII, § 6: “When the language of an enactment is plain and unambiguous, as in this case, we apply its plain meaning.”[66] And Article III, § 1 plainly prohibits any one person from exercising the powers of more than one branch of government at the same time. The three great branches of government shall be separate and distinct so that none exercise the powers of the others and so that no person exercises the power of more than one of them at the same time. This clause should be enforced according to its terms.

VIII. Conclusion

Appointing a legislator to a Board of Visitors or any Executive Branch agency would violate the separation of powers. It would violate the Departmental Separation Clause by intruding into and influencing executive-branch functions. And it would flagrantly violate the Personal Separation Clause by permitting the same person to exercise both legislative and executive powers at the same time.


 

Footnotes

[1] See George Mason University. v. Floyd, 654 S.E.2d 556, 558 (Va. 2008) (explaining why “[i]t is clear that GMU qualifies as an agency of the Commonwealth”); James v. Jane, 282 S.E.2d 864, 865 (Va. 1980) (describing Rector and Visitors of University of Virginia as “an agency of the Commonwealth”); Collin v. Rector & Board of Visitors of the University of Virginia, 873 F. Supp. 1008, 1013 (W.D. Va. 1995) (“The Board’s status under Virginia law is the same as any other state agency.”).

[2] Summary Report of the Joint Legislative Audit and Review Commission on Organization of the Executive Branch in Virginia, House Doc. No. 44, at 1-4, 35-36 (1984), available at http://jlarc.virginia.gov/pdfs/reports/Rpt61.pdf.

[3] See, e.g., Va. Code § 23.1-2201 (University of Virginia).

[4] Va. Code § 23.1-1300.C.

[5] Va. Code § 23.1-1301.

[6] Id.

[7] Va. Code § 23.1-2210.

[8] Va. Code §§ 23.1-2212 and 2213.

[9] Va. Code § 23.1-809.

[10] Va. Code § 23.1-1301.B.11.

[11] Taylor v. Worrell Enterprises, Inc., 409 S.E.2d 136, 138 (Va. 1991).

[12] See, e.g., Elizabeth River Crossings Opco, LLC v. Meeks, 749 S.E.2d 176 (Va. 2013).

[13] 2016 Op. Va. Atty. Gen., 2016 WL 1534596 at *3 (quoting Winchester & Strasburg Railroad Co. v. Commonwealth, 55 S.E. 692, 693 (Va. 1906)).

[14] Gandy v. Elizabeth City County, 19 S.E.2d 97, 99-100 (Va. 1942).

[15] Carter v. Commonwealth, 32 S.E. 780 (Va. 1899).

[16] Ratcliffe v. Anderson, 72 Va. (31 Gratt.) 105, 106-11 (1878).

[17] 409 S.E.2d 136 (Va. 1991).

[18] Id. at 139 (quoting Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977)).

[19] Id. (quoting Nixon, 433 U.S. at 443) (emphasis added).

[20] Id. at 138.

[21] Id. at 139.

[22] See text infra at notes 37-39.

[23] State ex rel. Wallace v. Bone, 286 S.E.2d 79 (N.C. 1982).

[24] State ex rel. State Building Commission v. Bailey, 150 S.E.2d 449, 451-57 (W. Va. 1966).

[25] Greer v. State, 212 S.E.2d 836 (Ga. 1975).

[26] Book v. State Office Building Commission, 149 N.E.2d 273, 293-97 (Ind. 1958).

[27] State ex rel. Schneider v. Bennett, 547 P.2d 786, 790-800 (Kan. 1976).

[28] Id. at 791.

[29] Id. at 792.

[30] Stockman v. Leddy, 129 P. 220 (Colo. 1912).

[31] See Taylor v. Worrell Enterprises, 409 S.E.2d 136, 139 (Va. 1991) (relying on Nixon v. Administrator of General Services, 433 U.S. 425 (1977)).

[32] Buckley v. Valeo, 424 U.S. 1, 137-41 (1976).

[33] Bowsher v. Synar, 478 U.S. 714, 721-32 (1986).

[34] U.S. Const. art. I, § 6, cl. 2.

[35] Springer v. Government of Philippine Islands, 277 U.S. 189 (1928).

[36] Federal Election Commission v. NRA Political Victory Fund, 6 F.3d 821, 826-27 (D.C. Cir. 1993). cert. dis’d, 513 U.S. 88 (1994).

[37] Id. at 826.

[38] State ex rel. Woods v. Block, 942 P.2d 428, 434-37 (Ariz. 1997).

[39] Id. at 436-37.

[40] Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

[41] In re Opinion of the Justices, 341 N.E.2d 254 (Mass. 1976).

[42] Attorney General ex rel. Cook v. Burhans, 7 N.W.2d 370 (Mich. 1942).

[43] Id. at 371.

[44] Id.

[45] Starnes v. Sadler, 372 S.W.2d 585, 585-86 (Ark. 1963).

[46] Id. at 586.

[47] Id.

[48] Galer v. Board of Regents, 236 S.E.2d 617 (Ga. 1977).

[49] Id. at 270.

[50] Id. at 269.

[51] Pitts v. Larson, 638 N.W.2d 254 (S.D. 2001).

[52] South Carolina Public Interest Foundation v. South Carolina Transportation Infrastructure Bank, 744 S.E.2d 521 (S.C. 2013).

[53] Id. at 526 (emphasis added).

[54] Id. (quoting James L. Underwood, The Constitution of South Carolina, Volume 1: The Relationship of the Legislative, Executive, and Judicial Branches 13 (1986)) (emphasis added).

[55] See text at notes 34, 43, and 46 supra.

[56] See text at note 37supra.

[57] Va. Code § 2.2-2101.

[58] Id.

[59] Id.

[60] State ex rel. Wallace v. Bone, 286 S.E.2d 79, 88 (N.C. 1982).

[61] Pitts v. Larson, 638 N.W.2d 254, 259 (2001) (Gors, J., concurring).

[62] 2016 Op. Va. Atty. Gen., 2016 WL 1534596.

[63] 2002 Op. Va. Atty. Gen., 2002 WL 1046587.

[64] Bray v. Brown, 521 S.E.2d 526 (Va. 1999).

[65] Id. at 528.

[66] Id. at 527.

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3 responses to “Appointing Lawmakers to Executive Boards Violates the State Constitution

  1. While I think there is a valid issue on the elected legislative members being on executive boards… I’m not sure what this means:

    ” … On the facts in Taylor, the court found that a law requiring the Governor to make records of his long-distance phone calls available under the Freedom of Information Act violated the separation of powers.”

    Does this mean that the laws passed by the G.A. do not apply to the Executive branch, so that no executive agency under the direction of the Gov is subject to FOIA?

    I have to say… I’m not a lawyer but this seems like bizarre logic..

    I think this is a difference between the roles an responsibilities – and rights of the 3 parts of Govt but to say that laws do not apply to them is off into LA LA land.

    then when I look at the “rationale” cited : ” The compelled disclosure of the data “could provide a basis for public speculation” that would have a “chilling effect on the Governor’s use of the telephone for conducting the Commonwealth’s business” and thus impair his ability to perform his duties.[20] It was enough that disclosure “impairs, though it does not completely destroy, the ability of the executive to perform his constitutionally required duties.”

    wouldn’t that same logic apply basically to any executive agency under the GOv also?

    I must not be understanding the point being made…. someone help me out.

  2. I certainly won’t argue the law since I am fortunate enough to have spent my career in engineering avoiding or evading any lawyers who attempted to cross my path.

    However, I will take up the political philosophy of the matter. The entire separation of powers concept that was promulgated by the framers depended on an appropriate balance of power. Virginia does not have such an appropriate balance of power. In a truly disgraceful manner our General Assembly seeks to aggrandize power while shirking both responsibility and accountability for their exercise of that power.

    Virginia is unique among the 50 states in forbidding a sitting governor from running for a second term. There is a reason why the other 49 states find this problematic. Our governor is a lame duck on his inauguration day. This dramatically limits his or her ability to exert influence over the General Assembly. While our governor has the most restrictive re-election limits in the United States our General Assembly has no limits on reelection (14 states have some form of legislative term limits). Add to this pervasive partisan gerrymandering (in direct conflict with the state constitution), unlimited campaign contributions (one of only 4 states) and off-year elections (one of only four states) and the result is an absurd situation where neither the executive branch nor the voters can exercise and effective check or balance on the unbridled power of the General Assembly.

    Our state legislature is composed of politicians for life who happily skip from one election to the next in the state with the least competitive legislative elections. Meanwhile, our governor has no possibility of a second consecutive term. That is not balance of power regardless of what the words in the state constitution might claim.

    I don’t have time to document the many ways our unique General Assembly thwarts the checks and balances of the judiciary and of local government but these cases are equal in their moral obscenity to the same distortion of checks and balances found in the structure of our legislative and executive branches.

    The founding fathers meant ideas like “checks and balances” and “separation of powers” to be real concepts not arbitrary words. It’s a sad day when a structurally corrupt government like that of Virginia uses the founders’ words to defend their abortion of the founders’ concepts.

    Publius may be right in his or her interpretation of the words of the Virginia Constitution. Or, she may be wrong. “But it is obvious that a legislator appointed to a Board of Visitors would quite literally exercise the whole power of a Visitor.” Perhaps. But one vote out of 15 would not exercise the whole power of the Board of Visitors. Nor would it constitute a major power of the board. Universities are not run by single Visitors.

    But presuming Publius is right, we are left with a scheme that allows unassailable eternal politicians to make all the decisions without requiring the common courtesy to insist that those same politicians for life at least view the implications of their incompetence.

  3. re: checks and balances… purely a point of view !!!

    seriously – the point here is WHO wrote those Constitutions?

    I would say the folks who constituted the representative members of the states and in Va the counties and that in THEIR MIND – the Executive was little more than someone who was to carry out the intent of the Legislature.

    right? 😉

    well.. here’s the “details”… reading through it – the Gov has got some power.

    https://law.lis.virginia.gov/constitutionexpand/article5/

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