Can the Governor of Virginia create a Chief Diversity, Opportunity & Inclusion Officer position in the cabinet by executive order, when state law also creates a Director of Diversity, Equity, and Inclusion?
Plain-English summary
Senator Scott Surovell and Delegate Don Scott Jr. asked whether Governor Glenn Youngkin's Executive Order 10 (Jan. 19, 2022), which designated a Chief Diversity, Opportunity & Inclusion Officer (CDO) in the Governor's cabinet, was lawful in light of § 2.2-435.12. That statute, enacted in 2020 (Acts ch. 712), creates a Director of Diversity, Equity, and Inclusion with statutory duties. The legislators wanted to know whether the EO unlawfully replaced or undermined the statutory Director.
Attorney General Jason Miyares concluded that the EO is lawful. The Governor's executive power under Article V, § 1 of the state constitution (combined with the "faithfully executed" clause of Article V, § 7 and statutory hooks like § 2.2-103(A) on policy formulation, § 2.2-100(B) on administrative assistants, and § 2.2-103(B) designating the Governor as the Chief Personnel Officer) gives him a "general reservoir of powers" to organize his own administration. He can designate cabinet officers, including officers not statutorily named, to assist in carrying out executive functions. The opinion threads this through Madison's "Decision of 1789" theory of executive power and modern separation-of-powers cases.
The single condition the AG attaches to that conclusion: the Governor "must take care that the laws be faithfully executed," meaning § 2.2-435.12's duties as imposed on the Director of Diversity, Equity, and Inclusion must still be performed. The EO can sit alongside the statutory Director; it just cannot displace the Director's statutory duties.
The historical pedigree section is significant. Governor Northam in 2019 created the Office of Diversity, Equity, and Inclusion and the Director position by executive action, before § 2.2-435.12 was enacted. Governor McDonnell created a "Chief Job Creation Officer" by Executive Order One in 2010 and made that officer a cabinet member. The General Assembly has never statutorily defined "the Governor's cabinet"; a 1997 JLARC report noted the term has never been formally codified, and a 1998 attempt at codification (HB 476) failed. Governors have always added cabinet positions beyond the statutorily-named secretaries.
What this means for you
If you serve in the General Assembly
The opinion does not let the Governor undo your statutory work. Section 2.2-435.12's duties for the Director of Diversity, Equity, and Inclusion remain in force. If you want to constrain how the Governor can structure his cabinet, the path is statutory: enact a definition of "Governor's cabinet" (the path JLARC recommended in 1997), require Senate confirmation for cabinet membership (only secretaries, not other cabinet officers, currently require confirmation), or specify that certain functions may not be delegated outside named statutory officers.
If you serve in the executive branch
You can be appointed to the Governor's cabinet without legislative confirmation if you hold a position outside the statutorily-named secretaries. Past examples include Governor Allen's Counselor to the Governor, Governor McDonnell's Chief Job Creation Officer, and Governor Northam's Chief Workforce Development Advisor. Watch the specific statutory duties of any parallel officer you supplement; you cannot supplant the statutory officer.
If you direct an existing statutory office that the Governor has supplemented with a cabinet officer
Your statutory duties remain. If the Governor's appointee asserts authority that overlaps with yours, the operative principle is: statute prevails on any specific duty assigned to your office. Coordinate with the Office of the Attorney General and the cabinet appointee to clarify which functions are yours.
If you are a candidate for Governor or a transition team
You retain broad latitude to organize your cabinet. You can create issue-specific cabinet positions (Chief AI Officer, Chief Veterans Affairs Officer, Chief Rural Outreach Officer) by executive order. The opinion treats this as a matter of administering the executive function, not legislating. Coordinate with your General Counsel before adopting structures that overlap with named statutory offices.
If you are a separation-of-powers scholar
The opinion endorses a relatively expansive Virginia version of the federal Decision of 1789 doctrine, citing Free Enterprise Fund v. PCAOB. It treats cabinet creation as an "administrative" function falling within the Governor's executive reservoir, and treats General Assembly silence about the structure of the cabinet as confirmation of executive discretion.
Common questions
Q: Did the Governor abolish the statutory Director of Diversity, Equity, and Inclusion?
A: No. The opinion is explicit that § 2.2-435.12's duties for the Director must still be carried out. EO 10 created an additional cabinet officer; it did not eliminate the Director.
Q: Can the Governor refuse to fill the statutory Director position?
A: The opinion's "faithfully executed" caveat suggests not. If § 2.2-435.12 imposes duties on the Director, and no person occupies the position, those duties go unperformed, which is the Governor's constitutional concern.
Q: Can the new Chief Diversity Officer perform the statutory Director's duties?
A: The opinion does not address this directly. The cleanest reading is that the statutory Director must perform the Director's duties, while the cabinet CDO has whatever duties the EO assigns. The two roles can be held by the same person, but the statutory duties stay tethered to the statutory office.
Q: Does the General Assembly have to confirm cabinet appointments?
A: Only the statutorily-named secretaries (the heads of the Governor's secretariats) require Senate confirmation. Other cabinet officers added by executive order do not. JLARC recommended in 1997 that the legislature consider requiring confirmation for all cabinet members; the legislature has not done so.
Q: Has any governor's cabinet structure ever been struck down on separation-of-powers grounds?
A: Not in Virginia. The opinion cites Currie's Adm'rs v. Mutual Assurance Society (1809) for the principle that the legislature cannot annul executive powers; the inverse principle (Governor cannot suspend or modify statute) is the limit on this kind of EO.
Background and statutory framework
Virginia's executive structure has grown organically since the 1970s creation of the secretarial system, which clustered agencies under appointed Secretaries to manage executive-branch sprawl. The statutory secretariats are the only positions that the General Assembly has formally codified as elements of the "cabinet." But governors have routinely added additional cabinet officers (chief of staff, secretary of the Commonwealth, counselor, chief diversity officer, chief workforce development advisor, chief job creation officer) by executive order.
Article V of the state constitution vests "[t]he chief executive power of the Commonwealth" in the Governor and requires him to "take care that the laws be faithfully executed." Article III, § 1 enforces separation of powers. Section 2.2-103(A) charges the Governor with formulating and administering the policies of the executive branch. Section 2.2-100(B) authorizes the Governor to "employ the necessary administrative assistants." Section 2.2-103(B) makes the Governor "the Chief Personnel Officer of the Commonwealth."
Section 2.2-435.12 was enacted in 2020 to formalize the Director of Diversity, Equity, and Inclusion role that Governor Northam had created administratively in 2019. The statute lists specific duties (formulating equity policy, providing technical assistance to state agencies on equity programs, facilitating turning feedback into concrete equity policy).
Governor Youngkin's EO 10 (Jan. 19, 2022) designated Angela Sailor as Chief Diversity, Opportunity & Inclusion Officer, in the cabinet, with assigned responsibilities. The EO did not amend or repeal § 2.2-435.12; it added a parallel cabinet officer.
The opinion is read against a Virginia Supreme Court note (Free Enterprise Fund) and a 1991 AG opinion (1991 Op. Va. Att'y Gen. 41) that Virginia governors can issue executive orders where they (a) administer rather than legislate or (b) act under specific statutory authorization. The opinion places EO 10 in the first category.
Citations
- Va. Const. art. III, § 1; art. IV, § 1; art. V, §§ 1, 7
- Va. Code Ann. §§ 2.2-100(B), 2.2-103(A), 2.2-103(B)
- Va. Code Ann. §§ 2.2-200 to -233.1
- Va. Code Ann. § 2.2-435.12
- 2020 Va. Acts ch. 712
- Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010)
- Currie's Adm'rs v. Mut. Assur. Soc., 14 Va. 315 (1809)
- 2014 Op. Va. Att'y Gen. 42
- 2006 Op. Va. Att'y Gen. 36
- 1999 Op. Va. Att'y Gen. 50
- 1991 Op. Va. Att'y Gen. 41
- 1983-1984 Op. Va. Att'y Gen. 180
- JLARC, The Secretarial System in Virginia State Government, House Doc. No. 41 (Dec. 23, 1997)
- Va. Exec. Order No. 10 (Jan. 19, 2022)
Source
- Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
- Original PDF: https://www.oag.state.va.us/files/Opinions/2023/23-022-Surovell-Scott-issued.pdf
Original opinion text
Honorable Scott A. Surovell
Honorable Don Scott, Jr.
July 7, 2023
[Issue Presented]
You inquire about the legality of Executive Order 10 issued by Governor Youngkin on January 19, 2022, which designated as a member of the Governor's cabinet a "Chief Diversity, Opportunity & Inclusion Officer" for the Commonwealth, in light of Code § 2.2-435.12, which establishes a "Director of Diversity, Equity, and Inclusion."
[Response]
It is my opinion that, provided the Governor otherwise ensures that the provisions of § 2.2-435.12 are "faithfully executed," he may designate within his cabinet a Chief Diversity, Opportunity & Inclusion Officer who is charged with performing duties supplemental to those of the Director of Diversity, Equity, and Inclusion.
[Applicable Law and Discussion]
Section 2.2-435.12 establishes a Director of Diversity, Equity, and Inclusion who is to: (i) develop a sustainable framework to promote inclusive practices across state government; (ii) implement, in conjunction with the Department of Human Resource Management, employee training related to inclusion and diversity in the workforce; and (iii) facilitate methods to turn feedback and suggestions from state employees, external stakeholders, and community leaders into concrete equity policy.
In your request, you focus solely on this new statute. To properly respond to your inquiry, however, the statute must be considered in relation to other relevant law, including but not limited to constitutional and additional statutory provisions.
The Constitution of Virginia grants the General Assembly the legislative power of the Commonwealth. While the power to make laws thus rests with the legislature, the Constitution directs that "[t]he Governor shall take care that the laws be faithfully executed" and that "[t]he chief executive power of the Commonwealth shall be vested in a Governor." Consequently, due to the separation of powers between the legislative and executive branches, the Governor is without power to enact, repeal or suspend legislation and the General Assembly is precluded from interfering with the Governor's lawful exercise of executive authority.
The Governor possesses a "general reservoir of powers" in exercising his constitutionally prescribed roles. As explained in numerous previous opinions of this Office, the Governor is vested with inherent and implied authority to take certain executive actions, including the issuance of executive orders and directives. This Office has recognized several situations in which the Governor properly may take such executive action. As relevant here, they include areas where particular authority has been conferred by statute or where the action is administrative rather than legislative in nature.
Pursuant to this authority, Governor Youngkin issued Executive Order 10 (EO 10) on January 19, 2022. EO 10 designated as a member of the Governor's cabinet a "Chief Diversity, Opportunity & Inclusion Officer" for the Commonwealth. The order named Angela Sailor to serve in that capacity and assigned the position numerous responsibilities.
[Discussion of cabinet history, JLARC report, and prior governors' practice continues at length, including Governor Northam's 2019 creation of the Director of Diversity, Equity, and Inclusion office before § 2.2-435.12's enactment, Governor McDonnell's Chief Job Creation Officer in EO One (2010), and the absence of any statutory definition of "the Governor's cabinet." The opinion concludes that the Governor's authority to add cabinet officers by executive order is well-established practice consistent with his executive power, the "faithfully executed" clause, his Chief Personnel Officer status under § 2.2-103(B), and his authority to "employ the necessary administrative assistants" under § 2.2-100(B).]
Conclusion
Provided the Governor otherwise ensures that the provisions of § 2.2-435.12 are "faithfully executed," he may designate within his cabinet a Chief Diversity, Opportunity & Inclusion Officer who is charged with performing duties supplemental to those of the Director of Diversity, Equity, and Inclusion.
With kindest regards, I am,
Very truly yours,
Jason S. Miyares
Attorney General