When a Virginia state university board of visitors makes decisions about its school, does it owe its primary loyalty to the institution it governs or to the Commonwealth as a whole?

Plain-English summary

Governor Glenn Youngkin asked whether a Virginia public college or university board of visitors owes its duty only to the institution or to the Commonwealth more broadly.

Attorney General Jason Miyares answered that “in fulfilling its responsibilities to the specific institution it serves, the primary duty of the board of visitors of each Virginia institution of higher education is to the Commonwealth.” The opinion says these institutions “are state agencies; they are statutory corporations created and empowered by acts of the General Assembly.” It also describes each institution as “a department of government,” a public corporation, and “part and parcel of the Commonwealth's higher education system.”

The opinion explains that a public corporation is created for public purposes and that its benefits are enjoyed by the public generally. It says that “private individuals have no interest in or control over” Virginia’s public colleges and universities. The board serves the Commonwealth through its work for a particular institution. The opinion describes the board as a vehicle through which the General Assembly exercises the Commonwealth’s control over its colleges and universities.

The opinion also points to the boards’ public responsibilities. The institutions are state agencies, their legal services are provided by the Office of the Attorney General, and their governing boards are public bodies subject to open records and open meetings requirements. Boards must publish information about their governance, activities, finances, and investments. The opinion says individual board members can be held personally liable for unauthorized spending deficits.

What this means for you

If you serve on a board of visitors

The opinion says your primary duty is to the Commonwealth while you fulfill your responsibilities to the specific institution. It does not prescribe a particular voting practice or decision-documenting procedure.

If you are a university general counsel

The opinion describes the institutions as state agencies and says legal services are provided by the Office of the Attorney General. It also treats the governing boards as public bodies subject to open records and open meetings requirements.

If you are a university president or chancellor

The opinion says each institution has a particular mission within the Commonwealth’s higher education system. It also says the General Assembly has charged the institutions with advancing overarching state goals that are reflected in a statewide strategic plan developed by another state entity.

If you are a state legislator

The opinion says each board “shall at all times be under the control of the General Assembly.” It also says board composition is defined by statute and members are subject to removal by the Governor. The opinion presents the boards as the means through which the General Assembly exercises the Commonwealth’s control over its colleges and universities.

Common questions

Q: Does this mean a board member must vote for whatever the Governor wants?

A: The opinion does not say that. It says the board’s primary duty is to the Commonwealth, that each board is under the control of the General Assembly, and that members are subject to removal by the Governor. It does not set a rule for how a board member must vote on a particular matter.

Q: What if a board disagrees with a state policy?

A: The opinion does not decide the legal effect of a particular disagreement or vote. It describes the board’s place within the Commonwealth’s higher education system and the General Assembly’s control over the boards and institutions.

Q: Does the opinion require a particular board operating procedure?

A: No particular voting or decision-documenting procedure appears in the opinion. It identifies the board’s primary duty and describes requirements involving public information, financial accountability, and board education programs.

Q: Does the opinion address private universities?

A: The opinion addresses boards of visitors of Virginia public institutions of higher education. It does not analyze the governance of private universities.

Q: Does the opinion address tenure or academic freedom?

A: No. The issue presented is the primary duty of a public institution’s board of visitors.

Background and statutory framework

The opinion describes Virginia’s public institutions of higher education as statutory corporations created and empowered by the General Assembly. Their boards manage the academic and financial affairs of the institutions, but the institutions remain departments of government and part of the Commonwealth’s higher education system.

The opinion identifies several features of that public structure:

1. Public purpose. The institutions exist to fulfill the Commonwealth’s commitment to provide education to Virginia students, and their benefits are enjoyed by the public generally.
2. Commonwealth control. Each board is under the control of the General Assembly. Board composition is defined by statute, and members are subject to removal by the Governor.
3. Public oversight. Boards must publish bylaws, organizational information, meeting information, contact information for public communications, annual executive summaries, and specified institutional data.
4. Financial accountability. Institutions must publish reports about budgets, tuition, fees, investments, and other public financial matters. The opinion also discusses possible personal liability for unauthorized spending deficits.
5. Board education. The General Assembly directed that regular board education programs include presentations relating to board members’ “primary duty to the citizens of the Commonwealth.”

The opinion concludes that, despite separate corporate status, boards of visitors do not exist for their own sake or that of any particular institution, but “for the benefit of the public at large.”

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2023/23-052-Youngkin-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General

Jason S. Miyares
Attorney General
October 2, 2023

The Honorable Glenn Youngkin
Governor of Virginia
Patrick Henry Building, Third Floor
1111 East Broad Street
Richmond, Virginia 23219

Dear Governor Youngkin:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire regarding the role of the board of visitors of a Virginia public institution of higher learning. You more specifically ask whether Virginia law imposes upon such boards a duty to serve the interests of the university or college only, or the Commonwealth more broadly.

Response

It is my opinion that, in fulfilling its responsibilities to the specific institution it serves, the primary duty of the board of visitors of each Virginia institution of higher education is to the Commonwealth.

Applicable Law and Discussion

Virginia is home to some of the nation's finest public institutions of higher education. Those conferring bachelor's degrees are defined by statute. As this Office previously has recognized, these institutions "are state agencies; they are statutory corporations created and empowered by acts of the General Assembly." Although they extend services to non-residents, Virginia's institutions of higher education exist to "fulfill[] the Commonwealth's commitment to provide education to the students of Virginia."

The General Assembly has vested the management of Virginia's colleges and universities in their respective boards of visitors. These boards constitute corporations, and in addition to possessing those powers generally affiliated with corporate status, the boards of visitors further enjoy broad statutory powers to regulate the academic and financial affairs of the institutions they serve.

Although the General Assembly has conferred corporate powers upon the governing boards of the Commonwealth's institutions of higher education, each of Virginia's colleges and universities remains "a department of government" and has long-standing recognition as a public corporation. Moreover, each institution, and its respective governing board, "is part and parcel of the Commonwealth's higher education system," as established by law in Title 23.1 of the Code of Virginia. In serving on the governing board of such a public corporation, each visitor "hold[s] under an act of the legislature a public office or employment[.]"

One of the defining features of a public corporation, including an educational institution, is that its benefits are enjoyed by the public generally. As traditionally understood, a public corporation is "created specially for public purposes as instruments or agencies to increase the efficiency of government, supply public wants, and promote the public welfare." Regardless of the specific mission of a particular public corporation, all such entities are "instituted by the Legislature, on the call of the people generally, for great public and State purposes[.]" Their "very essence is public use . . . ."

The law recognizes that although a public corporation generally may benefit and thus "involve some private interests[,] strictly speaking, public corporations are such only as are founded by the government for public purposes, where the whole interests belong to the government." Accordingly, "private individuals have no interest in or control over" any of Virginia's public colleges and universities. Because "the interest of the public constitutes [the] ends and aims" of each public institution of higher education, it is clear that the boards of visitors serving them, as public officers of the state, have a duty to the Commonwealth as a whole.

That a board of visitors, through its service to a particular institution, ultimately serves the Commonwealth is reflected in how they otherwise are treated under law. Corporate status does not alter each institution's essential nature as a state agency that constitutes "an arm of the Commonwealth." The operations of public corporations, including state universities and colleges, generally are cloaked with sovereign immunity and exempt from statutes of general applicability. Legal services are provided by the Office of the Attorney General. The governing boards of public institutions of higher education are public bodies subject to the open records and open meetings requirements of the Virginia Freedom of Information Act. More specifically, although each institution is distinct, the General Assembly has charged each public institution of higher education with advancing particular overarching state goals, which are to be reflected in a statewide strategic plan developed by another state entity.

The duty of each board of visitors to the Commonwealth is further reflected in the oversight that the Commonwealth, especially through the General Assembly, maintains over the boards and the state institutions they serve. Virginia law expressly provides that each "board shall at all times be under the control of the General Assembly." Board composition is defined by statute, and members are subject to removal by the Governor. As this Office previously has explained, "the broad authority of Virginia colleges and universities does not supersede statutory or case law, public policy, or explicit statements of the General Assembly regarding specific topics." Nor does it negate the overall public nature of the institutions' aims.

In furtherance of the public purpose of these educational institutions and their boards, the General Assembly has enacted numerous transparency requirements that serve all Virginians. Each board must publish on its website its bylaws, its organizational makeup, meeting information, and contact information by which to "receive public communications." For each regular legislative session, the board of visitors must prepare and "make publicly available on the institution's website an annual executive summary of its interim activity." Retention rates, graduation rates, and post-graduation employment data must be posted on the institution's website.

As it is the "public policy of the Commonwealth" that public institutions of higher education be funded by state appropriations, other statutory provisions relate to financial accountability to the public at large. Every institution must publish public reports regarding the institution's budget, tuition increases, and student fees. The institutions must keep records pertaining to the state property it oversees, its transactions related to intellectual property, and its administration of funds associated with athletic programs. To allow for additional oversight, each board must publish annually its financial statements and report the value of and cash earnings on its investments. Boards also must report "the salary by position of any executive officer of such institution that exceeds for the previous fiscal year the salary limit for the chief executive officer for such institution set forth in the general appropriation act." In addition, individual board members can be held personally liable for the incurrence of unauthorized spending deficits.

In light of the foregoing context, it is evident that a board of visitors simply serves as the vehicle by which the General Assembly has chosen to exercise the Commonwealth's control over its colleges and universities. In choosing to create boards of visitors to execute its governmental function of providing higher education to Virginia students, the Commonwealth imposes a primary duty to the Commonwealth on such public corporations in fulfilling their responsibilities to the institutions they serve. The General Assembly has made this duty clear: in requiring board members to participate in regular educational programs "designed to address the role, duties, and responsibilities of the governing boards[,]" the General Assembly explicitly has directed that such programs "include presentations relating to[] [Board members' primary duty to the citizens of the Commonwealth.]" Consequently, "the[ir] separate corporate status notwithstanding," boards of visitors do not exist for their own sake or that of any particular institution but for "the benefit of the public at large."

Conclusion

Accordingly, it is my opinion that the primary duty of the board of visitors of each Virginia public institution of higher education is to the Commonwealth.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General