Va. governors make board appointments; legislators confirm them. How’s the process work?

Republican Gov. Glenn Youngkin and Virginia Democrats have brokered many deals during his soon-ending four-year term, but have also frequently been at odds on policy issues, reflected most recently in the legislature’s rejection of several of the governor’s appointments to Virginia’s governing boards and commissions.

Virginia law gives governors the power to appoint people to these groups, and remove them. Like his predecessors, Youngkin has appointed hundreds of people to serve on roughly 300 public commissions and boards. 

Over the past year, Senate Democrats have rejected 30 of Youngkin’s appointments to boards and commissions, primarily to the Board of Education and governing boards at Virginia’s public higher education institutions. That is three times as many appointees as the legislature blocked during former Democratic Gov. Ralph Northam’s administration, which ended in 2022.

Now, the board appointments process is being debated publicly and will soon play out in the Fairfax County Courthouse, as officials decide whether the rejected appointees can still serve.

To better understand how the process works, the Mercury spoke with two professors from the University of Richmond and Virginia Commonwealth University about the state laws girding up gubernatorial appointment confirmations.

How may someone be appointed to a governing board or commission?

A candidate can be considered through two methods: self-application or nomination by someone else. 

Self-application would require the candidate to consider their area of interest and then complete an application through a web portal managed by the Office of Secretary of the Commonwealth.

“It’s prestigious, it’s a lot of work, and that’s not everybody’s cup of tea,” said Carl Tobias, law professor at the University of Richmond. 

Candidates may also be nominated, including by a member of the governor’s administration, and be submitted through the web portal. These roles are traditionally nonpartisan, although they can be recommended to join a board by a Democratic or Republican administration. “But my sense is that (a candidate) is often somebody who’s a pretty strong supporter of the governor,” Tobias said.

Alex Keena, associate professor of political science at VCU, said there can be several vacancies in a single year due to term limits on appointments.

“They’re about 900 appointments made in a typical year, so there’s constant vacancies. Some of those are because these positions are term-limited, or appointments last for a designated amount of time, and other times people leave,” Keena said.

Most of Virginia’s boards and commissions have specific appointment qualifications outlined in the Code of Virginia. All candidates are also required to meet the state’s Code of Conduct. Successful candidates will later be required to complete a financial disclosure statement. Board appointees are voluntary roles, with some exceptions, but are sometimes reimbursed for travel expenses. 

What is the governor’s role?

Simply put, the governor can appoint candidates to governing boards and commissions, and even nominate them. The three types of boards and commissions are advisory, policy and supervisory.

Keena said one of his observations is that each governor’s fields of expertise have helped identify candidates for specific boards. Youngkin comes from a business background that likely informed his opinions on business or commerce-related boards. In contrast, his predecessor, Northam, had experience in the medical field and worked in the Virginia legislature as a senator and then lieutenant governor, roles that probably influenced his appointee choices. 

“I think every governor has the leeway to find appointments, however they like, (but) are certainly not bound by this application system,” Keena said. ​​

The governor also has the authority to remove a confirmed appointment from office.

Youngkin recently booted Bert Ellis from the University of Virginia for violating the state’s Code of Conduct for state boards and commissions, as well as the Board of Visitors’ Statement of Visitor Responsibilities. 

Ellis’ strong support of eliminating diversity, equity and inclusion policies at UVA triggered protests by the school’s faculty senate, student government council and campus newspaper this year, but Youngkin did not expand on the specific violations that led to his decision to remove Ellis.

According to state law, the governor may remove an appointee from office for several reasons, including failure to carry out the policies of the commonwealth, and may fill the vacancy with an appointee of their choosing, subject to confirmation by the General Assembly.

What is the General Assembly’s role?

After the governor has compiled the list of appointments, the Secretary of the Commonwealth must provide copies of the appointees’ resumes and statements of economic interests to the chairs of the House of Delegates and the Senate Committees on Privileges and Elections.

The Senate typically takes up voting on the appointments before the House of Delegates votes. In certain instances, the lists of appointments have been updated to include additional members.

The state code states that a joint subcommittee, composed of five members from the House and three from the Senate, will be appointed by the respective chairs to review the resumes and statements of economic interests of gubernatorial appointees.

Keena said the state law is not clear on when the General Assembly is supposed to act on appointments. Since Virginia’s legislature is part-time, lawmakers meet annually on the second Tuesday in January, typically for 30 days during odd-numbered years and 60 days during even-numbered years and usually confirm appointments during that time.

The governor can also call back lawmakers for special sessions. 

This year’s appointment confirmation process was different. Because the Senate did not recess from its 2024 General Assembly Session, the Senate Committee on Privileges and Elections returned on June 9 to take up the governor’s appointments. 

By the meeting’s end, Democrats rejected eight appointees, after having rejected nine appointments during the regular session in January. 

During the June 9 meeting, Republican lawmakers questioned why the joint subcommittee had not met to review the appointees’ statements and economic interests, as required by state code. 

The Senate committee’s attorney replied he was not aware of whether the subcommittee was currently active. 

Tobias said that he believes the vetting process by lawmakers adds a “check” on the governor’s power and promotes interaction between the legislative and executive branches. Keena added that vetting candidates has historically been a practice in Virginia and across the country. 

“This is just part of checks and balances. The governor has the power to make the appointment, but it needs to be confirmed by the General Assembly, and that’s part of the legislative oversight,” Keena said.

If the General Assembly does not confirm an appointment, Virginia law states no appointment “shall enter upon, or continue in” office after being refused. They shall also not be eligible for reappointment when the General Assembly is not in session.

“If they refuse, then that’s it. You’re done,” Keena said. 

That law sets the state forSenate Democrats’ lawsuit on whether leaders at three of Virginia’s universities broke the rules by allowing rejected appointees — including former Virginia Attorney General Ken Cuccinelli and former state commerce and trade secretary Caren Merrick — to remain on their governing boards after being rejected by the Senate Privileges and Elections Committee.

The governor’s administration believes that the appointees are allowed to continue serving until the General Assembly reconvenes.

Tobias said the state code’s lack of clarity about whether the vote by the Senate Committee on Elections and Privileges represents the entire Senate has led to the contention between the governor’s administration and Senate Democrats.

“It doesn’t say House and Senate. It says General Assembly; so that’s an interesting wrinkle,” Tobias said.

Does the legislature track the number of confirmations?

The House of Delegates does not track the number of appointment confirmations, the Mercury confirmed, nor does the Senate. 

However, both chambers keep a record of related actions taken by lawmakers.

As of July 10, the General Assembly has rejected 30 of Youngkin’s 3,523 appointments to Virginia’s boards and commissions. That’s in comparison to his predecessor, Democratic Gov. Ralph Northam, who had 10 of his 2,941 appointees blocked by the legislature.

The totals exclude cabinet and agency appointments.

Northam’s time in office began when the entire legislature was controlled by Republicans, which rejected only nine appointees; seven of those were for the Board of Regents of the James Monroe Law Office Museum and Memorial Library. However, after two years, Democrats took control of both chambers, rejecting only one appointment. 

As for Youngkin, the governor has always faced a Democratic-controlled Senate Committee over the past four years. With his help, Republicans regained control of the House at the start of his term, but lost power to Democrats in late 2023. Most of the rejections have been for public boards and commissions about K-12 education, higher education and the Virginia Parole Board.

Are there any other legal nuances of appointment confirmations?

Yes, the experts said, but they are buried in the state code.

In the 1970s, lawmakers revised the Virginia Constitution to transfer some control of state governance from the legislature to the governor. But they also created inconsistencies regarding when appointments can begin serving on their respective boards and commissions. In many cases, appointments begin serving before they are confirmed.

“It really depends on the board,” Keena said. “There’s general state law that governs the process by which these appointments are made, and the role of the General Assembly, and each board has its own set of rules.”

One law has been revised to establish a special process that allows the governor to make recess appointments to the Board of Education, according to Keena. However, the law governing the boards of Virginia’s higher education institutions does not include specific language regarding the power to appoint someone to fill a vacancy. 

Not all of the roughly 300 boards have a special process for appointing vacancies. Keena said such a process could be added to state code due to the size of the board or commission, or the frequency of their meetings during the year.

This article first appeared on Virginia Mercury and is republished here with permission. Virginia Mercury is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Virginia Mercury maintains editorial independence.