Bill Text: VA SB506 | 2024 | Regular Session | Enrolled
Bill Title: Higher educational institutions, public; duties and powers of governing board.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Vetoed) 2024-04-17 - Senate sustained Governor's veto [SB506 Detail]
Download: Virginia-2024-SB506-Enrolled.html
Be it enacted by the General Assembly of Virginia:
1. That §§2.2-507, 23.1-1303, and 23.1-1304 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding a section numbered 23.1-102.2 as follows:
§2.2-507. Legal service in civil matters.
A. All legal service in civil matters for the Commonwealth, the Governor, and every state department, institution, division, commission, board, bureau, agency, entity, official, court, or judge, including the conduct of all civil litigation in which any of them are interested, shall be rendered and performed by the Attorney General, except as provided in this chapter and except for any litigation concerning a justice or judge initiated by the Judicial Inquiry and Review Commission. No regular counsel shall be employed for or by the Governor or any state department, institution, division, commission, board, bureau, agency, entity, or official. The Attorney General may represent personally or through one or more of his assistants any number of state departments, institutions, divisions, commissions, boards, bureaus, agencies, entities, officials, courts, or judges that are parties to the same transaction or that are parties in the same civil or administrative proceeding and may represent multiple interests within the same department, institution, division, commission, board, bureau, agency, or entity. The soil and water conservation district directors or districts may request legal advice from local, public, or private sources; however, upon request of the soil and water conservation district directors or districts, the Attorney General shall provide legal service in civil matters for such district directors or districts. The governing board of each public institution of higher education shall be responsible for all decisions relating to the employment of legal counsel for such institution, provided, however, that the Attorney General shall provide legal service for a public institution of higher education only (i) upon the request of the governing board, as defined in § 23.1-100, of such institution; (ii) in the case of any legal settlement involving consideration in excess of $5 million; or (iii) in accordance with the provisions of subsection D of §23.1-102.2. Nothing herein shall be construed to prohibit the Attorney General from, upon timely application, intervening as a separate party on behalf of the Commonwealth in any matter, subject to a showing that the Commonwealth has a separate and independent interest in the matter.
B. The Attorney General may represent personally or through one of his assistants any of the following persons who are made defendant in any civil action for damages arising out of any matter connected with their official duties:
1. Members, agents, or employees of the Virginia Alcoholic Beverage Control Authority;
2. Agents inspecting or investigators appointed by the State Corporation Commission;
3. Agents, investigators, or auditors employed by the Department of Taxation;
4. Members, agents, or employees of the State Board of Behavioral Health and Developmental Services, the Department of Behavioral Health and Developmental Services, the State Board of Health, the State Department of Health, the Department of General Services, the State Board of Social Services, the Department of Social Services, the State Board of Local and Regional Jails, the Department of Corrections, the State Board of Juvenile Justice, the Department of Juvenile Justice, the Virginia Parole Board, or the Department of Agriculture and Consumer Services;
5. Persons employed by the Commonwealth Transportation Board, the Department of Transportation, or the Department of Rail and Public Transportation;
6. Persons employed by the Commissioner of Motor Vehicles;
7. Persons appointed by the Commissioner of Marine Resources;
8. Police officers appointed by the Superintendent of State Police;
9. Conservation police officers appointed by the Department of Wildlife Resources;
10. Hearing officers appointed to hear a teacher's grievance pursuant to §22.1-311;
11. Staff members or volunteers participating in a court-appointed special advocate program pursuant to Article 5 (§9.1-151 et seq.) of Chapter 1 of Title 9.1;
12. Any emergency medical services agency that is a licensee of the Department of Health in any civil matter and any guardian ad litem appointed by a court in a civil matter brought against him for alleged errors or omissions in the discharge of his court-appointed duties;
13. Conservation officers of the Department of Conservation and Recreation; or
14. A person appointed by written order of a circuit court judge to run an existing corporation or company as the judge's representative, when that person is acting in execution of a lawful order of the court and the order specifically refers to this section and appoints such person to serve as an agent of the Commonwealth.
Upon request of the affected individual, the Attorney General may represent personally or through one of his assistants (i) any basic or advanced emergency medical care attendant or technician possessing a valid certificate issued by authority of the State Board of Health in any civil matter in which a defense of immunity from liability is raised pursuant to § 8.01-225 or (ii) any member of the General Assembly in any civil matter alleging that such member in his official capacity violated the Virginia Freedom of Information Act (§2.2-3700 et seq.) pursuant to §2.2-3713 or 2.2-3714.
C. If, in the opinion of the Attorney General, it is impracticable or uneconomical for such legal service to be rendered by him or one of his assistants, he may employ special counsel for this purpose, whose compensation shall be fixed by the Attorney General. The compensation for such special counsel shall be paid out of the funds appropriated for the administration of the board, commission, division, or department being represented or whose members, officers, inspectors, investigators, or other employees are being represented pursuant to this section. Notwithstanding any provision of this section to the contrary, the Supreme Court may employ its own counsel in any matter arising out of its official duties in which it, or any justice, is a party.
D. Nothing herein shall limit the powers granted in § 16.1-88.03.
§23.1-102.2. Legal counsel; office of general counsel; employment; duties and administration.
A. The governing board of each public institution of higher education shall have the authority to hire or retain legal counsel for the provision of all legal services, including to appear, commence, prosecute, or defend any action, suit, matter, cause, or proceeding in any court; to enter, terminate, or alter contracts on behalf of the institution; to purchase and sell real estate and other tangible and intellectual property on behalf of the institution; to audit, supervise, and administer funds appropriated to the institution by governmental and nongovernmental entities; or to otherwise provide legal advice and counsel on questions, legal risks, and opportunities the governing board determines are related to the affairs of the institution. The governing board of each public institution of higher education shall, in consultation with the chief executive officer, appoint a general counsel to serve as the chief legal officer of such institution. The chief legal officer and the vice president or similarly situated executive officer of such institution shall, under the direction of the governing board of such institution, conduct the legal affairs of and provide legal advice and representation for such institution on any matter the governing board determines to be in the interest of the institution. The chief legal officer and the vice president or similarly situated executive office of such institution shall have the authority to contract for and manage outside legal services when deemed necessary and appropriate by the governing board of such institution. The chief legal officer shall report solely to the governing board and chief executive officer of such institution in conducting and overseeing the legal affairs and services set forth in this subsection.
B. The governing board of each public institution of higher education shall ensure that any legal counsel it hires or retains using public funds is hired or retained solely for the provision of legal services for or relating to the interests of the public institution of higher education served by such governing board and not for the provision of legal services for or relating to the interests of any private entity, organization, or venture with which such institution may have a partnership or other business relationship.
C. The Attorney General may, in accordance with §2.2-507, appear, commence, prosecute, or defend any action, suit, matter, cause, or proceeding in any court or provide legal advice on questions related to the affairs of the public institution of higher education only upon request of the governing board of such institution or upon the governing board's delegation of authority pursuant to subsection D. Any legal settlement involving consideration in excess of $5 million shall be subject to the approval of the Attorney General.
D. Notwithstanding the provisions of subsection A or B, the governing board of any public institution of higher education with fewer than 7,500 full-time students may choose to delegate all authority conferred pursuant to subsection A to the Attorney General in accordance with the provisions of §2.2-507. Any such governing board intending to delegate the authority conferred pursuant to subsection A shall submit to the Council, the Chairmen of the House Committees on Appropriations and Education and the Senate Committees on Finance and Appropriations and Education and Health notice of such intention no later than January 1, 2025. Any such governing board intending thereafter to delegate the authority conferred pursuant to subsection A or to rescind a prior delegation of such authority made pursuant to this subsection shall submit to the Council, the Chairmen of the House Committees on Appropriations and Education and the Senate Committees on Finance and Appropriations and Education and Health notice of such intention no later than January 1 of the immediately succeeding odd-numbered year.
E. The governing board of each public institution of higher education shall report annually to the Attorney General and the Council on such institution's use of outside legal services for any legal services for or relating to the interests of such institution. Any information in such report may be altered as necessary to protect the privacy interests of students and faculty and to comply with the federal Family Educational Rights and Privacy Act (20 U.S.C. §1232g). Such report shall include:
1. The types of matters handled by outside legal services;
2. The number of litigation matters handled by outside legal services; and
3. The total financial cost of outside legal services, disaggregated by the type of matter handled by any such outside legal services.
§23.1-1303. Governing boards; duties.
A. For purposes of this section, "intellectual property" means (i) a potentially patentable machine, article of manufacture, composition of matter, process, or improvement in any of those; (ii) an issued patent; (iii) a legal right that inheres in a patent; or (iv) anything that is copyrightable.
B. The governing board of each public institution of higher education shall:
1. Adopt and post conspicuously on its website bylaws for its own governance, including provisions that (i) establish the requirement of transparency, to the extent required by law, in all board actions; (ii) describe the board's obligations under the Virginia Freedom of Information Act (§2.2-3700 et seq.), as set forth in subdivision B 10 of §23.1-1301, including the requirements that (a) the board record minutes of each open meeting and post the minutes on the board's website, in accordance with subsection I of §2.2-3707 and §2.2-3707.1, (b) discussions and actions on any topic not specifically exempted by §2.2-3711 be held in an open meeting, (c) the board give public notice of all meetings, in accordance with subsection D of § 2.2-3707, and (d) any action taken in a closed meeting be approved in an open meeting before it can have any force or effect, in accordance with subsection B of §2.2-3711; and (iii) require that the board invite the Attorney General's appointee or representative to all meetings of the board, executive committee, and board committees;
2. Establish and maintain on the institution's website (i) a listing of all board members, including the name of the Governor who made each appointment and the date of each appointment; (ii) a listing of all committees created by the board and the membership of each committee; (iii) a schedule of all upcoming meetings of the full board and its committees and instructions for the public to access such meetings; (iv) an archive of agendas and supporting materials for each meeting of the governing board and its committees that was held; and (v) an email address or email addresses that allow board members to receive public communications pertaining to board business;
3. Establish regulations or institution policies for the acceptance and assistance of students that include provisions (i) that specify that individuals who have knowingly and willfully failed to meet the federal requirement to register for the selective service are not eligible to receive any state direct student assistance, (ii) that specify that the accreditation status of a public high school in the Commonwealth shall not be considered in making admissions determinations for students who have earned a diploma pursuant to the requirements established by the Board of Education, and (iii) relating to the admission of certain graduates of comprehensive community colleges as set forth in §23.1-907;
4. Assist the Council in enforcing the provisions relating to eligibility for financial aid;
5. Notwithstanding any other provision of state law, establish policies and procedures requiring the notification of the parent of a dependent student when such student receives mental health treatment at the institution's student health or counseling center and such treatment becomes part of the student's educational record in accordance with the federal Health Insurance Portability and Accountability Act (42 U.S.C. §1320d et seq.) and may be disclosed without prior consent as authorized by the federal Family Educational Rights and Privacy Act (20 U.S.C. §1232g) and related regulations (34 C.F.R. Part 99). Such notification shall only be required if it is determined that there exists a substantial likelihood that, as a result of mental illness the student will, in the near future, (i) cause serious physical harm to himself or others as evidenced by recent behavior or any other relevant information or (ii) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs. However, notification may be withheld if any person licensed to diagnose and treat mental, emotional, or behavioral disorders by a health regulatory board within the Department of Health Professions who is treating the student has made a part of the student's record a written statement that, in the exercise of his professional judgment, the notification would be reasonably likely to cause substantial harm to the student or another person. No public institution of higher education or employee of a public institution of higher education making a disclosure pursuant to this subsection is civilly liable for any harm resulting from such disclosure unless such disclosure constitutes gross negligence or willful misconduct by the institution or its employees;
6. Establish policies and procedures requiring the release of the educational record of a dependent student, as defined by the federal Family Educational Rights and Privacy Act (20 U.S.C. §1232g), to a parent at his request;
7. Establish programs to seek to ensure that all graduates have the technology skills necessary to compete in the twenty-first century and that all students matriculating in teacher-training programs receive instruction in the effective use of educational technology;
8. Establish policies for the discipline of students who participate in varsity intercollegiate athletics, including a provision requiring an annual report by the administration of the institution to the governing board regarding enforcement actions taken pursuant to such policies;
9. In addition to all meetings prescribed in Chapters 14 (§ 23.1-1400 et seq.) through 29 (§23.1-2900 et seq.), meet with the chief executive officer of the institution at least once annually, in a closed meeting pursuant to subdivision A 1 of §2.2-3711 and deliver an evaluation of the chief executive officer's performance. Any change to the chief executive officer's employment contract during any such meeting or any other meeting of the board shall be made only by a vote of the majority of the board's members;
10. If human research, as defined in §32.1-162.16, is conducted at the institution, adopt regulations pursuant to the Administrative Process Act (§2.2-4000 et seq.) to effectuate the provisions of Chapter 5.1 (§ 32.1-162.16 et seq.) of Title 32.1 for human research. Such regulations shall require the human research committee to submit to the Governor, the General Assembly, and the chief executive officer of the institution or his designee at least annually a report on the human research projects reviewed and approved by the committee and require the committee to report any significant deviations from approved proposals;
11. Submit and make publicly available on the institution's website the annual financial statements for the fiscal year ending the preceding June 30 and the accounts and status of any ongoing capital projects to the Auditor of Public Accounts for the audit of such statements pursuant to §30-133;
12. No later than December 1 of each year, report to the Council and make publicly available on the institution's website (i) the value of investments as reflected on the Statement of Net Position as of June 30 of the previous fiscal year, excluding any funds derived from endowment donations, endowment income, or other private philanthropy; (ii) the cash earnings on such balances in the previous fiscal year; and (iii) the use of the cash earnings on such balances. In the event that the commitment of any such investment earnings spans more than one fiscal year, the report shall reflect the commitments made in each future fiscal year. The reports of the Boards of Visitors of Virginia Commonwealth University and the University of Virginia shall exclude the value of and earnings on any investments held by the Virginia Commonwealth University Health System Authority and the University of Virginia Medical Center, respectively. As used in this subdivision, "investments" includes all short-term, long-term, liquid, and illiquid Statement of Net Position accounts, and subaccounts thereof, in which moneys have been invested in securities;
13. Submit to the General Assembly and the Governor and make publicly available on the institution's website an annual executive summary of its interim activity and work no later than the first day of each regular session of the General Assembly. The executive summary shall be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports and shall be posted on the General Assembly's website;
14. Make available to any interested party upon request a copy of the portion of the most recent report of the Uniform Crime Reporting Section of the Department of State Police entitled "Crime in Virginia" pertaining to institutions of higher education;
15. Adopt policies or institution regulations regarding the ownership, protection, assignment, and use of intellectual property and provide a copy of such policies or institution regulations to the Governor and the Joint Commission on Technology and Science. All employees, including student employees, of public institutions of higher education are bound by the intellectual property policies or institution regulations of the institution employing them;
16. Adopt policies that are supportive of the intellectual property
rights of matriculated students who are not employed by such institution;
and
17. Solicit the input of representatives of the institution's faculty senate or its equivalent (i) at least twice per academic year on topics of general interest to the faculty and (ii) in advance of decisions to be made on the search for the institution's new chief executive officer; and
18. Exercise in its collective capacity best judgment in carrying out the powers and duties of the governing board and act at all times in accordance with the duty of loyalty owed primarily to such institution and secondarily to the citizens of the Commonwealth, and each member shall, in his individual capacity, stay informed on such institution's developments in order to make educated decisions, act with loyalty to such institution and the Commonwealth, and exercise his own individual best judgment in carrying out the powers and duties of the governing board.
§23.1-1304. Governing boards; additional duties; educational programs.
A. From such funds as are appropriated for such purpose, the Council shall develop, in consultation with public institutions of higher education and members of their governing boards, and annually deliver educational programs for the governing boards of such institutions. New members of such governing boards shall participate, at least once during their first two years of membership, in the programs, which shall be designed to address the role, duties, and responsibilities of the governing boards and may include in-service programs on current issues in higher education. In developing such programs, the Council may consider similar educational programs for institutional governing boards in other states. In addition, the Council shall develop educational materials for board members with more than two years of service on the governing board. Each such board member shall participate in further training on board governance at least once every two years, and the Council shall develop criteria by which such board members shall demonstrate compliance with this requirement.
B. Educational programs for the governing boards of public institutions of higher education shall include presentations relating to:
1. Board members' primary duty to the citizens of the
Commonwealth duties set forth in subsection B of §23.1-1303;
2. Governing board committee structure and function;
3. The duties of the executive committee set forth in § 23.1-1306;
4. Professional accounting and reporting standards;
5. Methods for meeting the statutory, regulatory, and fiduciary obligations of the board;
6. The requirements of the Virginia Freedom of Information Act (§2.2-3700 et seq.), developed and delivered in conjunction with the Freedom of Information Advisory Council;
7. Institutional ethics and conflicts of interest;
8. Creating and implementing regulations and institution policies;
9. Business operations, administration, budgeting, financing, financial reporting, and financial reserves, including a segment on endowment management;
10. Fixing student tuition, mandatory fees, and other necessary charges, including a review of student debt trends;
11. Overseeing planning, construction, maintenance, expansion, and renovation projects that affect the institution's consolidated infrastructure, physical facilities, and natural environment, including its lands, improvements, and capital equipment;
12. Workforce planning, strategy, and investment;
13. Institutional advancement, including philanthropic giving, fundraising initiatives, alumni programming, communications and media, government and public relations, and community affairs;
14. Student welfare issues, including academic studies; curriculum; residence life; student governance and activities; and the general physical and psychological well-being of undergraduate and graduate students;
15. Current national and state issues in higher education;
16. Future national and state issues in higher education;
17. Relations between the governing board and the chief executive officer of the institution, including perspectives from chief executive officers of public institutions of higher education;
18. Best practices for board governance, including perspectives from current board members; and
19. Any other topics that the Council, public institutions of higher education, and members of their governing boards deem necessary or appropriate.
C. The Council shall submit to the General Assembly and the Governor an annual executive summary of the interim activity and work of the Council pursuant to this section no later than the first day of each regular session of the General Assembly. The executive summary shall be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports and shall be posted on the General Assembly's website.
