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:
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.
Would It Be Constitutional to Appoint a Virginia Legislator
to a Board of Visitors of a Virginia Public University
or Other Executive Branch Boards?
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. Similarly, the General Assembly’s Joint Legislative Audit and Review Commission has recognized that these Boards are part of the executive branch. The Governor appoints persons to the Boards of Visitors, and the Governor can remove Visitors for “malfeasance, misfeasance, incompetence, or gross neglect of duty.” 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. They are authorized to regulate parking and traffic, the hiring and firing of employees, and the admission, discipline, and expulsion of students. They are instructed to manage their institution’s endowment and given many powers necessary for the management of medical centers. They have law enforcement responsibilities; they are authorized to establish a campus police department or, at the Board’s election, require a contiguous local government to provide police protection on campus. Continue reading