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Should Virginia's public universities be able to hire their own counsel?

Who should a public university’s board of visitors be most loyal to, the state or the university? The question is key over Virginia legislation that would give the boards authority over legal counsel for the public university they serve.

Senate Bill 506 by Senate Majority Leader Scott Surovell, a Fairfax Democrat, would let universities hire their own counsel and not have to default to counsel provided by the attorney general’s office.

But Attorney General Jason Miyares opposes the idea. He cautions that smaller universities — which have less robust coffers than larger ones — would not be as able to have independent counsel.

“The UVas and the Virginia Techs can afford this,” he said.

The state legislature signs off on public funding available to public colleges and universities and approves or rejects the governor’s appointees to their boards of visitors. Boards of visitors are the governing bodies for public universities and their terms are staggered over the course of multiple governors’ administrations.

Miyares said that boards of visitors should be the “watchdog for the commonwealth of Virginia to make sure universities are spending well and being fiscally responsible.”

He called Surovell’s bill a “beginning step of trying to turn our state universities — paid for with taxpayer dollars — more like private schools.”

While public universities receive money through donations and endowments, for which larger universities benefit most, they also receive funding from the state.

Deputy Attorney General Rob Bell, a former Republican state delegate from Albemarle County, added that the office has a “pool” of resources from its specialized higher education lawyers dispatched around the commonwealth and available to multiple universities.

Surovell says his bill would not mandate that smaller institutions sever themselves from the attorney general’s office. As his bill works its way through the legislature, he noted that budget lines could include those resources for universities that express a desire to keep tapping into the attorney general office.

Last year, Gov. Glenn Youngkin asked Miyares whether boards of visitors at public universities are primarily supposed to serve the interest of the university or the commonwealth.

Miyares opined that “the primary duty of the board of visitors of each Virginia institution of higher education is to the commonwealth.”

Miyares’ opinion aligns with some moves the Youngkin administration has already made. In early 2022, Miyares ousted the University of Virginia’s chief counsel, Tim Heaphy, and George Mason University’s Brian Walther — both Democrats.

At the time, Miyares spokeswoman Victoria LaCivita said that he “wants the university counsel to return to giving legal advice based on law, and not the philosophy of a university.”

It’s not uncommon for governors or legislators to request legal opinions from the attorney general. And while those opinions can provide legal guidance and advice, they aren’t legally binding.

Surovell said that since the opinion, members of boards of visitors have called him to express confusion.

“(They) need to be able to hire counsel that will give them straight legal advice that’s not affected by political considerations,” he said recently.

Claire Guthrie Gastañaga, who has served as a chief deputy attorney general, said that the opinion could pave the way for Youngkin to get rid of members.

“This effort to define the boards as having to be ‘loyal to the commonwealth’ is all about trying to position the way that the governor’s authority is structured,” she said. “This is for getting rid of people.”

According to Virginia law, governors can remove members for “malfeasances, misfeasance, incompetence, or gross neglect of duty.”

Gastañaga added that political tensions between higher education institutions and state government is not new, and they can stem from either party.

Democratic Gov. Douglas Wilder called for the resignations of all 11 members of Virginia State University’s board in 1993 amid financial problems at the school. Gov. Jerry Baliles, another Democrat, did not reappoint certain board members at Virginia Tech in the late 1980s after a scandal in its athletic department.

Surovell’s bill, which has advanced through the Senate’s Education and Health Committee, will come before its Finance and Appropriations Committee next. Bills must go on to clear both chambers before they can end up on the governor’s desk for final approval, amendment or rejection.


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