Day One Powers of the Governor – Removal of Members of Boards and Commissions

Glenn Youngkin Photo Credit: NBC News

by James C. Sherlock

The left routinely reminds us that elections have consequences.

Well, indeed they do.

People ask what can Glenn Youngkin really do on day one of his administration. The answer — more and more consequentially — than is commonly understood.

I have written here repeatedly about long term corruption in the Board of Health and rigid and relentless progressivism in the Board of Education.

Those boards are very powerful in Virginia. They are charged with both writing regulations and oversight of the underlying departments. The current members of those boards need to go — en masse.

The new governor has the power to make that happen.

Powers of the governor over board, commissions, etc. The Code of Virginia grants Governor Youngkin the power to fire all of the members of both boards.

§ 2.2-108. Removal of members of certain boards, commissions, etc.
A. Notwithstanding any provision of law to the contrary, the Governor may remove from office for malfeasance, misfeasance, incompetence, misconduct, neglect of duty, absenteeism, conflict of interests, failure to carry out the policies of the Commonwealth as established in the Constitution or by the General Assembly, or refusal to carry out a lawful directive of the Governor any member of any board, commission, council or other collegial body established by the General Assembly in the executive branch of state government except those boards provided for in subsection C of § 23.1-1300 , subsection A of § 23.1-3100, and subsection A of § 23.1-3200 (all concern the governing boards of public institutions of higher education) and fill the vacancy resulting from the removal subject to confirmation by the General Assembly.

B. The Governor shall set forth in a written public statement his reasons for removing any member pursuant to this section at the time the removal occurs. The Governor is the sole judge of the sufficiency of the cause for removal as set forth in this section.

That will stop both the hyper-progressive, in some cases arguably unconstitutional, regulations of the Board of Education and the corrupt oversight of the Department of Health in their tracks.

Board of Education. The new Board of Education can repeal every progressive outrage enacted into Department of Education regulations.

Virginia laws on education require the BOE to write regulations. They do not generally specify the content of those regulations except by subject matter. The regulations written by the BOEs appointed by McAuliffe and Northam have taken those laws off a progressive cliff.

Board of Health. The new Board of Health can begin the long process of undoing the capture of the Department of Health by the hospitals before which that Department has bowed and for which it has created and protected monopolies for 50 years.

Remember, the Virginia Certificate of Public Need law says nothing about granting monopolies. The Department of Health ‘overseen’ by the Board of Health has done that on their own for longer than most Virginians have been alive.

Day one. In both cases, the new governor reasonably can find those two boards to have been guilty of at least misfeasance — the wrongful exercise of lawful authority — for which he is the sole judge.

And fire them.

I think he will do it because it is necessary to carry out his campaign pledges. He won’t want to constantly fight a rear guard action by legacy Democratic appointees.

General Assembly confirmation. Does anyone think that after this election all 51 Democrats in the Senate will vote to deny Governor Youngkin’s replacement appointments? I don’t.

Three reasons:

  1. The departments cannot carry out Virginia law without the boards;
  2. Democrats are looking with more than a little trepidation at 2023; and
  3. They will want to make the same changes next time a Democrat is elected governor.

Bottom line. Elections have consequences.

The day-one firings of these two boards should be two of them.


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Comments

45 responses to “Day One Powers of the Governor – Removal of Members of Boards and Commissions”

  1. Ingrid Sheriff Allen Avatar
    Ingrid Sheriff Allen

    what does anyone think Gov. Y will do about mask mandates in schools…….

    1. vicnicholls Avatar
      vicnicholls

      He’s told us that.

    2. Nancy Naive Avatar
      Nancy Naive

      Same as abortion… of course, he didn’t tell us that… directly.

    3. I can answer that one. According to the VDH, this bogus article is why masks have been mandated. PLEASE read it yourself – https://wwwnc.cdc.gov/eid/article/26/10/20-0948_article
      When asking UVA, UVA points to the VDH.
      Masks have no correlation to reduction of COVID spread (because they don’t work for that) and are likely counter-productive, besides the social issues caused. Set the kids free!

  2. Eric the half a troll Avatar
    Eric the half a troll

    “They will want to make the same changes next time a Democrat is elected governor.”

    Is this truly what you think is best for Virginia, Mr. Sherlock?

    1. Nancy Naive Avatar
      Nancy Naive

      Well, it appears the CAPT’s race- and red-baiting articles on CRT may have affected someone either than himself. It’s almost word-for-word…
      https://www.dailykos.com/stories/2021/11/2/2061734/–Well-I-m-not-going-to-get-into-the-specifics-Watch-Virginia-man-broadcast-ignorance-on-CRT

      1. James C. Sherlock Avatar
        James C. Sherlock

        The Daily Kos? That is your source? Perfect.

        1. Nancy Naive Avatar
          Nancy Naive

          Nah, the video. Who ya gonna believe, me or your lyin’ damned eyes?

          Face it, Captain, ya were a purveyor of the Big Virginia Lie.

    2. James C. Sherlock Avatar
      James C. Sherlock

      I do. Elections should have consequences, don’t you agree?

      1. Eric the half a troll Avatar
        Eric the half a troll

        I just want you on record that you think immediate sweeps of government with every pendulum swing are really good for the Commonwealth. Do I agree… no, I don’t but Conservatives will likely set the new precedent on putting party above all else and Dems will then answer in kind. It is the way of the world now… you should be proud!!

        1. Matt Hurt Avatar

          It’s not the immediacy of the sweeps that are problematic, but rather the difference of the extremes. When the Republicans had power, it that pendulum swung way to the right, then the Democrats swung it way to the left. The sweet spot is somewhere between the two. That’s why we see changes in power- it’s the reaction of the governed to the party in power who has gone too far. Most folks find themselves somewhere in the middle, and the hyperbole of politics doesn’t allow moderate common sense to prevail, if there is such a thing anymore.

  3. Chris Braunlich Avatar
    Chris Braunlich

    No. The Code of Virginia does NOT allow the Governor to replace the Board of Education (I don’t know about the Board of Health, as I don’t claim to know things I don’t know).

    But I DO know about the Board of Education: Article VIII, Section 4 of the Virginia Constitution provides for that Board “to be appointed by the Governor, subject to confirmation by the General Assembly. Each appointment shall be for four years (emphasis mine) … Terms shall be staggered so that no more than three regular appointments shall be made in the same year.”

    The Constitution supercedes the Code. Unless people resign, Governor Youngkin will not get a majority on the Board of Ed until June of 2023. Period.

    Claiming he can make changes instantly by firing everybody serves only to encourage people to ignore the hard work of governing and disappoints them when it cannot be done.

    Besides … does anyone really believe that Terry McAuliffe would not have fired the Board of Ed in his first term if he could legally have done so?

    1. Nancy Naive Avatar
      Nancy Naive

      Since the CAPT is a self appointed expert in both education AND health, perhaps he’s seeking his appointment. Well, Cox HS does need a nurse.

    2. Matt Adams Avatar
      Matt Adams

      “But I DO know about the Board of Education: Article VIII, Section 4 of the Virginia Constitution provides for that Board “to be appointed by the Governor, subject to confirmation by the General Assembly. Each appointment shall be for four years (emphasis mine) … Terms shall be staggered so that no more than three regular appointments shall be made in the same year.”

      The Constitution is Clear, however what is the remedy if a member if found to be acting in maleficence. There appears no avenue to remove said member unless you view 23.1-1300 Part C.

      1. Chris Braunlich Avatar
        Chris Braunlich

        That section applies only to institutions of higher education, I believe. Those who interpret these things tend to draw a bright line between higher and K-12 education. I assume that somewhere there is a provision to remove someone convicted of a crime. But I do believe the VA Constitution’s writers wrote it that way to prevent removing someone because of a policy disagreement.

        1. Matt Adams Avatar
          Matt Adams

          _But I do believe the VA Constitution’s writers wrote it that way to prevent removing someone because of a policy disagreement.”

          Of this I would agree, however. As written there is no recourse for any member found out of good standing. As it stands they could be convicted of a felony and still hold that position from behind bars.

        2. James C. Sherlock Avatar
          James C. Sherlock

          Misfeasance is “the willful inappropriate action or intentional incorrect action or advice“.

          It is not a crime, but it is a removable offense for an appointee.

          Inappropriate or incorrect in a gubernatorial appointee mean anything the governor, under Virginia statute, considers those terms to mean.

      2. In my response to Chris Braunlich (above), I discuss the statutory provisions concerning removal of appointed officials.

        1. Matt Adams Avatar
          Matt Adams

          Thank you for that response. I found it highly suspicious that there would be no method of redress for appointments if the Governor saw fit.

    3. Although the members of the State Board of Education are appointed for a term of years, they could be removed if the appointing authority files a petition with a Circuit Court pursuant to Virginia Code Section 24.2-234, which references the provisions of Virginia Code Section 24.2-233.

      After Youngkin is sworn in as Governor he could file a removal petition with a Circuit Court if he concluded any member of the State Board of Education engaged in the type of misconduct identified under Section 24.2-233. The removal matter would then be decided by the Circuit Court, not the Governor.

    4. James C. Sherlock Avatar
      James C. Sherlock

      Chris, you contend either that the law does not say what it says or that it is unconstitutional.

      I disagree.

      § 2.2-108. has been the law of Virginia since 1950 and was updated five times since then, the last time in 2016.

      You then must contend that § 2.2-108 has been unconstitutional for 61 years.

      Looking at it another way, you contend that the Constitution prevents the governor from removing board members “from office for malfeasance, misfeasance, incompetence, misconduct, neglect of duty,” etc.

      The governor removes officials appointed by his office. The courts remove elected officials.

      There is no provision in the constitution or the law for courts to remove for misfeasance officials appointed by the Governor.

      So how could such persons be removed from office constitutionally?

      Finally, you propose that the governor can appoint heads of departments, in this case health and education, but he cannot remove and appoint at his “sole discretion” the boards that oversee them and write regulations that the heads of departments must carry out.

      Boards are political bodies appointed by the governor to serve his political interests.

      Yet you contend that a new governor with contrasting political views for which he was elected by the people of the Commonwealth cannot remove them for the same reasons. He must wait two years before getting control of the oversight of his own departments.

      That would be a strange constitution indeed.

      Virginia would then be not a republic run by elected representatives, but rather an oligarchy run by appointed officials immune from the judgement of the people.

      That, of course, is the progressive dream.

      1. Chris Braunlich Avatar
        Chris Braunlich

        I contend what I contend because I read what I read. And I bothered to stop and understand it. Plus, I actually lived it. If you knew anything at all, you’d know the Board of Ed has nothing to do with running the Department. It sets policy and is a regulatory body, so the Governor does not have to “wait two years before getting control of the oversight of his own department.” He does that with the Superintendent appointment.

        And then you keep citing a provision of the law which refers to CERTAIN Boards and Commissions, but that provision refers only to 23.1, which is HIGHER Education Boards.

        By and large, you are correct in saying the Governor can replace the Boards he wishes to replace. There are only a few Boards that are treated differently. The Board of Education is one of them.

        If not, it certainly would have been done before now.

        But I rather suspect that nothing I say or point to will convince you otherwise and I am wasting my time on this thread. I suddenly remember why I don’t participate in blogs, so my comments on this are ended.

        1. James C. Sherlock Avatar
          James C. Sherlock

          “If you knew anything at all, you’d know the Board of Ed has nothing to do with running the Department. It sets policy and is a regulatory body.”

          Please read your own words again, Chris. You can’t put all of those words together and not understand the implications.

          Another quote: “If not, it certainly would have been done before now.”

          This is a textbook example of a Post Hoc Fallacy – “post hoc ergo propter hoc” – assuming causality from order of events.

    5. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      Again, thanks for bringing in a few facts to counteract the hyperbole, Chris.

      As for the Board of Health, and any other board, for that matter, I hope Mr. Sherlock does not hold his breath waiting for en masse firings.

      As for regulations, even if there were a new Board of Education, it could not repeal regulations instantly. There is a statutory procedure, set out in the Administrative Process Act, that sets out a lengthy process for amending or enacting new regulations.

      The key will be agency heads. They are the ones that the boards depend on. With a new Superintendent of Public Instruction, the Board of Education will be going in a different direction, maybe.

      I say maybe, because agency heads have a habit of “going native” fairly quickly, as George Allen found out.

      1. Chris Braunlich Avatar
        Chris Braunlich

        Good point. The Superintendent of Public Instruction appointment is vital — and difficult, because those in the education world appointed to higher positions have largely “gone native” before they even get there …

      2. James C. Sherlock Avatar
        James C. Sherlock

        I did not bring up the Administrative Procedure Act Dick, you did. It must be complied with. I never wrote otherwise.

        As for “going native”, you make my point.

        The governor can fire agency heads at his sole discretion, just like appointed board members. Anything else would yield executive branch anarchy. No constitution that establishes for a state a republican form of government required of states by the federal constitution would ever sanction that.

        The General Assembly gets to vote on his new appointments, not his removal from office of the incumbents.

        Read my reply to Chris above.

        1. Stephen Haner Avatar
          Stephen Haner

          As a rule I’ve stopped reading Sherlock, text or comments. I knew the headline was nonsense. Chris mentioned this debate so I opened all this. Poor Glenn is going to have to break some hearts because many of you haven’t got a realistic idea of how Richmond works, and will spend the next four years railing at him as a RINO.

      3. as anyone knows who has ever worked in a state agency, the agency does not need its policy board to operate. The career employees at the Department of Education and the Department of Health would likely welcome a respite from these boards and would continue to carry out the established policies. Under state law, I remember the Governor’s ability to change the leadership at executive branch agencies as limited to the agency head, a chief deputy and a confidential assistant. Also as was noted earlier, the Administrative Process Act requires a lengthy process before regulations can be changed.

    6. James Wyatt Whitehead Avatar
      James Wyatt Whitehead

      “Governor Youngkin will not get a majority on the Board of Ed until June of 2023.”
      Yes! It will coincide with most of Virginia’s local school board elections. That is when real reform in education will be carried out.

  4. George  Walton Avatar
    George Walton

    While he apparently cannot force their resignation he should nevertheless request the resignation of all members of the VMI Board of Visitors. Henceforth new members should not be Richmond West End bluebloods and should be those who respect its history and reverence for honor.

    1. YellowstoneBound1948 Avatar
      YellowstoneBound1948

      It is important that he do so. He should appoint a “flunky” (as Northam did when he fired Gen. Peay) to tell the Board that the Governor has lost confidence in them. Ditto, the Superintendent, whose tenure will always be tainted for eagerly seizing an opportunity to replace one of VMI’s most distinguished graduates without one shred of credible evidence that any of the allegations against VMI were true. That does not now, nor did it then, pass the smell test. Take the step, Gov. Youngkin. Repudiate VMI’s Quisling (Northam) and restore order to this unhappy institution.

      1. Jake Spivey Avatar
        Jake Spivey

        Rock Solid Yellowstone!

  5. JimBob237 Avatar

    How many Boards have an Agency Head or Cabinet Secretary as Chair? (e.g. Transportation)

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      The chairman of the Parole Board serves as agency head. Several agency directors serve on the Criminal Justice Services Board. But the Board of Transportation is unique in having the Secretary of Transportation as its chairman.

  6. Christian N Braunlich Avatar
    Christian N Braunlich

    No. The Code of Virginia does NOT allow the Governor to replace the Board of Education (I don’t know about the Board of Health, as I don’t claim to know things I don’t know).

    But I DO know about the Board of Education: Article VIII, Section 4 of the Virginia Constitution provides for that Board “to be appointed by the Governor, subject to confirmation by the General Assembly. Each appointment shall be for four years (emphasis mine) … Terms shall be staggered so that no more than three regular appointments shall be made in the same year.”

    The Constitution supercedes the Code. Unless people resign, Governor Youngkin will not get a majority on the Board of Ed until June of 2023. Period.

    Claiming he can serves only to encourage people to ignore the hard work of governing and disappoints them when it cannot be done.

    Besides … does anyone really believe that Terry McAuliffe would not have fired the Board of Ed in his first term if he could legally do so?

  7. Donald Smith Avatar
    Donald Smith

    Can he get rid of the VMI Board of Visitors? The ones who pitched the Jackson statue to the SJW wolves? If so, he should do it from the podium on Inauguration Day. Good riddance to weak trash.

    1. John Harvie Avatar
      John Harvie

      Why just VMI? How about UVA? W&M? Tech? GMU? etc.

      1. Jake Spivey Avatar
        Jake Spivey

        He should critically review all those Boards’ members IMHO.

    2. Jake Spivey Avatar
      Jake Spivey

      We’re working on that. Over the course of his term Gov-elect Youngkin will replace 10 members of the BoV, their terms expire. He will have the opportunity to repalce the other six members who’s current terms will be subject to review for re-appointment. He’ll also have the opportunity to replace the state’s Adjutant General, a non-voting member of the Board.

  8. LesGabriel Avatar
    LesGabriel

    By the way, I assume that it was a typo that said there were 51 Democrats in the 40 members Virginia Senate.

    1. Stephen Haner Avatar
      Stephen Haner

      21-19, but some of those 21 Ds are actually reasonable on some issues! Far less ideological than the more numerous body…and watch some more reasonable House D’s poke their noses out of the hole come January, as well.

      1. LesGabriel Avatar
        LesGabriel

        We can only hope. Plus we need to keep all 19 R’s on the reservation. I will feel more comfortable with Sears as the tie-breaker.

        1. Stephen Haner Avatar
          Stephen Haner

          Let us all reflect for a moment on the fate of Justin Fairfax, once a shoe-in to at least continue at LG if he wanted to, or to seek the top job. Bright, friendly, well-educated, good speaker. Done in likely by jealous fellow Democrats who ginned up those women to complain, take him down, and then disappear without actually filing a single criminal charge. A Fairfax v. Sears contest would have been far different. But keeping the path free for McAuliffe was the real goal.

  9. LesGabriel Avatar
    LesGabriel

    I cringed when I heard Mr Youngkin promise what he would do on Day 1. Day 1 has come to be shorthand for what used to be “the first 100 days” and meant to convey priorities and sense of urgency. Most of the things he committed himself to will require legislative action, and even if successful, will take months to enact. Meanwhile his critics will have an easy target by pointing to all of his agenda items that are left undone on Day 2.

    1. Eric the half a troll Avatar
      Eric the half a troll

      Don’t worry BR will be here making excuses for him the whole time.

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