Virginia statute makes legislators categorically “ineligible to serve on boards, commissions, and councils within the executive branch of state government who are responsible for administering programs established by the General Assembly.” But with increasing frequency, the General Assembly has enacted exceptions to this policy. There is a general exception for bodies “engaged solely in policy studies or commemorative activities,” and perhaps such bodies need not be in the executive branch at all. But the Assembly has also enacted exceptions for twenty-one specific boards and commissions, many of which clearly have executive authority. This list of exceptions is a miscellany with no obvious pattern, but it includes six educational boards, one of which is a Board of Visitors. The legislation creating the Board of Visitors of the Virginia School for the Deaf and Blind explicitly acknowledges that it is in the executive branch, and it requires that four legislators serve on the eleven-member board. There are rumors in Richmond that some legislators would like to put legislators on the Boards of Visitors of other public universities in the Commonwealth.
Such appointments violate the separation of powers and are unconstitutional. I reach this conclusion on the basis of the clear text of the Virginia Constitution, on the decisions of the Virginia Supreme Court, on the practical consequences, and on decisions interpreting separation-of-powers provisions in federal law and in other states. The question is not close. Much of the analysis here would apply to the constitutional law of nearly every state, and to any board or commission in the executive branch, but my focus will be on the Boards of Visitors of Virginia’s public universities.