A Southwest Virginia circuit court will consider whether a sitting governor’s decision to remove a college governing board member was legal, a rare type of case in the commonwealth.

In June, John Rocovich, one of the longest-serving governing board members in Virginia Tech’s history, filed a civil lawsuit in Montgomery County Circuit Court challenging Gov. Abigail Spanberger’s May decision to remove him from his board seat.

Spanberger wrote to Rocovich at the time that his “misconduct” spurred her action but did not specify the alleged violations, saying only that the findings provided “sufficient cause” for removal.

Carl Tobias, a professor and constitutional law expert at the University of Richmond, predicts the former board member’s lawsuit is unlikely to succeed because the governor acted within her rights under the board’s bylaws and state code.

Virginia Tech rector refuses to resign after Spanberger’s dismissal

“It’s an uphill endeavor — I don’t think the plaintiff is going to win — and I hope it doesn’t make the situation worse at Virginia Tech for the present board members going forward,” Tobias said by phone.

Rocovich, appointed by former Gov. Glenn Youngkin and confirmed by the General Assembly in 2023, could conceivably win at some stage, Tobias acknowledged.

He said such a result would be highly consequential for the current governing body and future board members who might challenge the governor’s authority.

How Rocovich’s removal lines up with state law

State law sets the rules for university board members and permits the governor to remove members for “malfeasance, misfeasance, incompetence, or gross neglect of duty any member of the board of any public institution of higher education, and fill the vacancy resulting from the removal.”

The governor is required to write a public statement explaining their reasons for removing any member at the time it happens. 

Rocovich’s removal came early in Spanberger’s term, as the administration made several changes to Virginia’s boards and commissions, including public colleges and universities statewide. 

Lawmakers called for political influence to be removed from Virginia’s public university governing boards this year, after several of the state’s higher education institutions tangled with federal authorities over diversity, equity and inclusion policies and differing political ideologies last year..

In her letter to Rocovich, Spanberger did not mention politics as a factor for his removal. 

However, records show that Rocovich was a donor to the campaign of Republican gubernatorial nominee Winsome Earle-Sears, a rival of Spanberger, according to the Virginia Public Access Project.

Rocovich is one of two former board members to be removed by a governor in the past two years. Bert Ellis, a businessman who sat on the Board of Visitors at the University of Virginia, was removed by Youngkin. Ellis did not challenge the governor’s decision.

Before his removal, the board granted an exception permitting Rocovich to serve a third one-year term as rector during the search for Virginia Tech’s next president after Tim Sands resigned in April, Cardinal News reported. 

The board minutes noted that Rocovich was elected rector because no other nominees were available and he was willing to serve.

Rocovich’s challenge 

Rocovich is asking the Montgomery court to officially rule that his removal was invalid and restore him to his position on the board, court records show.

James Turk Jr., an attorney representing Rocovich, said in a June 9 complaint that his client had more than a year left on his four-year term when it came to an abrupt end.

“Governor Spanberger had no lawful cause to remove Rocovich,” Turk wrote, because “no grounds for his removal exist. There has been no ‘malfeasance, misfeasance, (or) incompetence’ — let alone ‘gross neglect of duty’ — on the part of Rocovich.”

Turk also argued in the complaint that the governor failed to provide sufficient details regarding his client’s removal.

This is an area the former rector could also explore in his challenge, Tobias said, adding that the governor should have been “more fulsome” in explaining why she removed him and her justifications.

He noted, however, that state law doesn’t require the governor to provide a full, detailed explanation.

“It really doesn’t,” Tobias said. “It sets out some language, but it doesn’t call for a full, thoroughgoing detailing of all the reasons. It’s pretty terse.”

Based on how the court interprets state law in this case, legislative changes requiring the governor to provide fuller explanations for the college board removals could be on the horizon, Tobias suggested. 

What’s next

The Honorable Gerald E. Mabe, II, judge of the Twenty-Seventh Judicial Circuit, has been assigned to the case. 

The governor’s legal representation was granted an extension to respond to the complaint. 

No hearings have been set as of Thursday afternoon.