Governor's counsel warns State Board appointment plan would shift executive power to unelected interests

Jake Urshan Johnson, legal counsel to Governor Scott, told the House Education Committee on March 20 that a proposed amendment restructuring appointments to the State Board of Education would improperly shift core executive functions to unelected, unaccountable interests.

Johnson said he was appearing to testify on a draft amendment (dated 03/24/25, labeled draft 1.1) and argued the proposal would “encroach on or usurp the governor's constitutional duty to faithfully execute the laws.” He said the draft would remove primary appointment authority from the governor and give it to outside parties, including organizations represented in the Statehouse by paid lobbyists.

Johnson explained the practical consequences if the amendment were adopted as drafted: an 11-member board with two legislative and two gubernatorial voting members, plus nonvoting seats for the secretary and a student, would leave nine voting members. Under Robert's Rules of Order, he said, a quorum of five voting members would allow a majority act with as few as three votes, meaning a bloc of outside appointees could meet and exercise board powers without executive-branch or legislative members present.

The counsel tied those structural changes to statutory and constitutional duties. Citing the board's existing statutory responsibilities under 16 V.S.A. § 164, Johnson noted the State Board of Education currently performs executive functions including rulemaking, program implementation, entering into agreements, and approving criteria tied to school administration. He said delegating those powers to an unelected entity “usurps the power of the executive and transfers all of the powers and functions of an executive board to an unelected, unaccountable body.”

Johnson walked the committee through separation-of-powers principles in the Vermont Constitution, referencing Chapter II provisions that assign lawmaking to the General Assembly and “supreme executive power” to the governor and arguing that the legislature’s reserve appointment power cannot be used to frustrate the governor’s duty to execute the laws. He cited state and federal precedents in the course of his legal argument and pointed to past episodes where the governor vetoed legislation he viewed as unconstitutional, including a prior attempt regarding the Office of Racial Equity.

As alternatives, Johnson urged the committee to use existing legislative tools — amending statute, abolishing or redesigning the board, changing the nominating process for the education secretary, or conducting legislative oversight — rather than delegating executive authority to an outside board. He also raised practical concerns about ethics and conflicts of interest if lobbyists were lobbying a board composed of members from the interests they represent.

Chair Conlon and committee members asked clarifying questions during the exchange about how many legislative appointees would constitute a constitutionally problematic majority and about the role of Senate advice and consent when appointment authority is shifted away from the governor. Johnson acknowledged there are “gray areas” where branches overlap but reiterated his view that a board dominated by outside appointees carrying out core executive tasks would raise serious constitutional risk.

No votes or formal actions on the amendment occurred during this testimony; the hearing record shows this was testimony and legal argument presented for the committee's consideration.