Stalemate over State Corporation Commission vacancies continues

Despite legislators returning to Richmond earlier this month to finish work on bills besides the budget, Republicans and Democrats still haven’t resolved a dispute over filling vacancies on the State Corporation Commission, the powerful body that oversees Virginia utilities, insurance and banking.

The House Republican and Senate Democratic majorities have not agreed on a deal to fill two vacancies on the three-person State Corporation Commission, representatives of the parties said.

Sen. Scott Surovell, D-Fairfax, confirmed the impasse reached in February hasn’t been bridged. House Republican Caucus spokesperson Garren Shipley said there had been “no change in status as far as I’m aware.”

The two seats have been vacant since House Republicans decided not to elect Commissioner Angela Navarro to the SCC during the 2022 session after her interim appointment by former Democratic Gov. Ralph Northam. Commissioner Judith Jagdmann resigned in December but offered to be available for recall to help the body make necessary decisions. 

With only Commissioner Jehmal Hudson remaining in Richmond, the SCC hasn’t recalled Jagdmann since her retirement, but has recalled former Commissioner Patricia West to maintain its two-member quorum to make decisions. (Democrats’ decision in 2020 not to reappoint West also sparked a political fight, with Republicans on the last day of the session refusing to confirm Hudson, forcing Northam to appoint him in an interim role. Both chambers approved the pick in 2021.)

Both the House and the Senate passed legislation this year that would create near-equal term lengths for the vacant seats so each body could appoint a person of its choosing, but the legislation died following disagreements on filling the vacancies. Republicans have said the standstill is due to the Senate’s insistence on appointing Navarro. Surovell has refused to comment on specific candidates but said each chamber should be allowed to nominate whoever it wants.

The disagreement could spill over into legal action, said Surovell.

When the SCC has vacancies outside of when the legislature is in session, responsibility shifts to the governor to appoint new commissioners, who under the state Constitution are allowed to serve until 30 days after the start of the next General Assembly session. During the session, the legislature has the power to elect commissioners to complete the remainder of a seat’s term.

While that would mean it’s currently Republican Gov. Glenn Youngkin’s job to appoint replacements to the SCC, Surovell contends he can’t, arguing the legislature’s 2022 special session is still underway despite the completion of the 2023 session.

In September, the House and Senate failed to fill what was then one vacancy on the SCC. Senate Democrats never adjourned from the day, which Surovell says means the special session is still in effect until the next General Assembly is reconstituted following this November’s elections. That status prevents the governor from making appointments or holding special elections, Surovell contends.

“The whole matter would end up in litigation, either because [Democrats] file suit, or an unhappy party with the State Corporation Commission would contest every decision that they make,” Surovell said. “Any party who is unhappy with the decision would be likely to appeal the legitimacy of that decision to the Supreme Court of Virginia based on the fact that one of the SCC commissioners was not legally in office.”

Four special elections to fill General Assembly seats have been held since the beginning of the year. 

Surovell said the special election held this year to fill the state Senate seat vacated by Republican Jen Kiggans’ election to Congress wouldn’t be subject to a legal challenge since it was jointly called by Senate Pro Tempore Louise Lucas, D-Portsmouth, and Youngkin; similarly, two special elections for House of Delegates seats were jointly called by Youngkin and House Speaker Todd Gilbert, R-Shenandoah. The special election to fill the Senate seat vacated by Democrat Jennifer McClellan’s election to the U.S. House also can’t be challenged legally, he argued, since it was called when the regular session was ongoing.

When asked if the governor intends to fill the vacancies, even in the face of a potential legal challenge, Youngkin spokesperson Christian Martinez said, “Governor Youngkin believes that the State Corporation Commission should be serving all Virginians at its full capacity in order to fulfill their duties as described by the Virginia Constitution.” 

“The SCC should not be used as a political pawn, denying Virginians the governance they deserve in critical areas of their lives,” Martinez added.

Harry Godfrey, executive director of the Virginia branch of Advanced Energy United, an industry group representing renewable energy technology manufacturers that closely follows utility cases at the SCC, said the vacancies should be filled by the General Assembly. 

“The advantage of having the General Assembly make that election, is that the individuals that they select are representative of the consensus of the commonwealth as a whole … and the General Assembly we have now that is divided between Republicans and Democrats is representative of that now, ” said Godfrey, who had previously praised Navarro’s appointment in 2021. “The governor is really only used as a backstop here.”

It’s important to fill the vacancies, Godfrey added, pointing to the weight of responsibility that has fallen onto Hudson’s shoulders. 

“Dominion is required to file its new Integrated Resource Plan next month,” Godfrey said, referencing the document that lays out future plans of Virginia’s largest electric utility. “It will be the first IRP the utility’s filed since the Virginia Clean Economy Act has fully been in effect. It’s certainly going to be the first IRP since the passing of the Bipartisan Infrastructure Law and the Inflation Reduction Act, two incredibly important and influential pieces of legislation that are fundamentally changing the energy landscape.”

This story was updated to state that former commissioner Judith Jagdmann has not been recalled since her resignation.