Published by the Local Government Section of the Virginia State Bar

Vol. XXV, No. 1, Summer 2014

Invocations at Local Government Meetings: What Hath Town Of Greece v. Galloway Wrought? Steven L. Micas1

The Supreme Court decision in Town of Greece v. Galloway, 133 S. Ct. 2388 (2014), up-holding the constitutionality of sectarian prayers at legislative meetings resolves a decade of conflict in 4th Circuit court-rooms. The Supreme Court decision overrules a series of appellate court decisions hold-ing that only invocations using

non-sectarian prayers are constitutional. See, e.g., Joyn-er v. Forsyth Cnty., 653 F.3d 341 (4th Cir. 2011) (non-sectarian content for invoca-tions are an essential aspect of complying with the Establish-ment Clause); Turner v. City Council of Fredericksburg, 534 F.3d 352 (4th Cir. 2008) (a city council’s policy requir-ing nondenominational prayer by council members did not violate the right to free exer-cise of religion); Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir. 2004) (town council prayers frequently containing references to Jesus Christ unconstitutionally pro-

moted one religion over other religions) and Hudson v. Pittsylvania Cnty., 2013 WL 1249091 (W.D. Va. Mar. 27, 2013); Doe v. Pittsylvania Cnty., 842 F. Supp. 2d 906 (W.D. Va. 2012) (consistently opening meetings with Chris-tian prayers runs afoul of the boundaries set out in Joyner and amounts to a governmental “endorsement” of Christianity).

Steve Micas has represented local governments since 1974 as Assistant City Attorney for Charlottesville, County Attorney for Chesterfield County and County Attorney for Prince George County. He may be reached via email at smi-cas@princegeorgeva.org.

TABLE OF CONTENTS Invocations at Local Government Meetings: What Hath Town Of Greece v. Galloway Wrought? ..................... 1 Chairman’s Message...................................................................... 2 Notice to Members re Electronic Publication ................................ 8 Bibliography & Back Issues Notice ................................................ 8 Ethics Reform in the 2014 General Assembly Session: Some Solutions and Some Unaddressed ....................................... 9 Fellowship Award .......................................................................... 17 Foreword: The Metropolitan Revolution ....................................... 17 Local Government Law Section Annual Report ......................... 22 Board of Governors ...................................................................... 23

Journal of Local Government Law

The holding in the Town of Greece decision is deceptively simple to summarize. The Supreme Court held that fed-eral courts cannot constitu-tionally mandate non-sectarian or ecumenical prayers during invocations so long as the prayer opportunity is not ex-ploited by proselytizing or by disparaging other faiths. In Greece, a town near Roches-ter, New York, the Town Clerk invited local clergy listed in the local phone book

to volunteer to act as prayer givers for Town Council Meet-ings. Since the town was pre-dominantly Christian, all pray-er givers ended up being Christian for a large part of the last decade. No one was de-nied the opportunity to give an invocation. Many of the pray-ers contained sectarian refer-ences such as “We acknowledge the saving sacri-fice of Jesus Christ on the Cross” and “You are a wise God, oh Lord, as evidenced

even in the plan of redemption that is fulfilled in Jesus Christ.…” In his plurality opin-ion, Justice Kennedy first looks to historical practices to explain why the First Amendment Establishment Clause tolerates public prayer in government meetings and why this toler-ance for legislative prayer developed separate and apart from other long-standing “Es-tablishment Clause” jurispru-dence. Since legislative invoca-tions were a common practice

Chairman’s Message

As the Local Government Section begins a new fiscal year, I want to thank our out-going Chairman, Erin Ward, for her leadership over the past year. I look forward to working with her as Immediate Past Chairman, along with Annie Kim as Vice Chair, Lawrence S. Spencer, Jr. as Secretary, and the other members of the Board of Gov-ernors. It is a privilege to work with such a talented and knowledgeable group of attorneys. As you will see from the variety of topics addressed in this issue of the Journal of Local Government Law, there are few areas of the legal profession that touch on so many different aspects of the practice of law. At a time when government at all levels, federal, state and local, is coming under fire it is easy to overlook the value our local governments provide to their citizens. We certainly have our shortcomings and moments of dysfunction, however the im-portance of local government in maintaining the quality of life we enjoy in Virginia cannot be minimized. Local governments are on the front lines of a wide range of issues that affect all of us, from public safety to education to protecting our envi-ronment and a myriad of other functions. The responsibility for developing policies to address these issues and implementing and enforcing those policies rests largely with local government. Local government attorneys, in both the public and private sectors, are invaluable in fostering effective local government. I hope that the Local Government Section will serve as a valuable resource for at-torneys who dedicate all or a portion of their professional lives to issues that affect local government. I covet your input as to ways in which the Local Government Section can serve you and your clients.

Bonnie France Chairman

Page 2

Journal of Local Government Law before the adoption of the First Amendment, the Bill of Rights cannot be seen as modifying a practice that the framers did not view as furthering the establishment of religion by government. The First Amendment was squarely aimed at the more aggressive linking of religion with gov-ernment in such prevailing practices at the time as state payment of clergy salaries, statutes outlawing “heresy” against official state religions and penalties for attending religious observances outside the state-sanctioned religion. Justice Kennedy wrote that since religious congregations in the Town of Greece were exclusively Christian, the fact that no other faith tradition participated in the invocations did not, by itself, constitute exclusion, bias or disparage-ment of other religions. Nor was there any coercion or compulsion of non-believers to demonstrate acceptance of a Christian faith even though elected officials stood, bowed their heads and, on occasion, made the sign of the Christian cross. A citizen’s potential feeling of exclusion or of being “disrespected” if they did not share Christian beliefs did not equate to unconstitu-tional coercion. But there remain unanswered questions about what are constitutionally acceptable prayer practices for local government and what are the behavioral restrictions that should still apply to invoca-tions.

Legislative Prayer: The quiet years after Marsh v. Chambers (1983) The Supreme Court decision in Lemon v. Kurtzman, 403 U.S. 602 (1971), created the legal test used to review whether a practice that is intertwined with religion represents an unconstitutional Establishment of religion. In Lemon (which overturned the payment of state salary supplements to parochial school teachers who taught secular subjects in parochial schools), the Su-preme Court created a three part test that must be satisfied to sustain a law challenged under the Establishment Clause: 2

1. The law must have a secu-lar purpose;

2. The primary effect of the law should neither ad-vance nor inhibit religion; and

3. The law must not foster an excessive entanglement between church and state.

Since “incidental” or “modest” advancement or entanglement of church and state are tolerat-ed, the application of Lemon to specific fact situations has been ad hoc and unpredictable. See, e.g., Lynch v. Donnelly, 465 U.S. 668 (1984) (a crèche is allowed in a public park because it was a passive part of a secular display); Cnty. of Allegheny v. ACLU, 492 U.S. 573 (1989) (but a crèche is not allowed in a courthouse be-cause it was donated by a Catholic group and bore the sign, “Glory to God in the

Highest”); Van Order v. Perry, 545 US. 677 (2005) (six foot high monolith inscribed with The Ten Commandments is a passive monument and is con-stitutional when placed among 21 historical markers and 17 other monuments); McCreary Cnty. v. ACLU, 545 U.S. 844 (2005) (but copies of the Ten Commandments placed in courthouses violated the Estab-lishment Clause because there was no secular purpose to the display and later attempts to surround the display with nine historical documents did not disguise the government’s motive to advance religion).

An initial question for any Establishment claim is deter-mining whether a law or prac-tice implicates religion or a religious belief. Unlike the extensive and highly “fact-specific” jurisprudence under-lying Establishment Clause claims, the notion of what is a religion has received relatively scant attention in Federal Courts. In determining whether a claimed set of personal be-liefs constitutes a religion, federal courts look at whether the person’s beliefs:

a. Are “religious in nature” (an articulation which, at one level, seems to utterly beg the question. Nevertheless, “religious in nature” is seen as a personal acceptance of an omnipotent power trans-cending the human experi-ence on Earth);

b. Are “sincerely held”; and

c. Occupy a place in the per-son’s life parallel to that of orthodox believers in God.

Page 3

Journal of Local Government Law United States v. Seeger, 380 U.S. 163 (1965) (enunciated during the Vietnam War over the question of whether reli-gious beliefs undergirded conscientious objectors’ deci-sion to refuse induction into the military).

A personal philosophy or “way of life” does not equate to a religion. Wisconsin v. Yoder, 406 U.S. 205 (1972). Nor are religious practices as opposed to beliefs necessarily protected by the First Amendment. Reynolds v. United States, 98 U.S. 145 (1878) (holding that Mormons in Utah were bound by the federal anti-bigamy statute). The wholly subjective aspects of the Seeger test have resulted in broad tolerance of “cults” as religions. “Cults” have at various times in Amer-ican history such as the 1920’s and 1960’s experienced wide popularity in the United States. Cults are pejoratively viewed as embracing transient reli-gious fads that lack a long history of religious teachings and traditions. Of course, what constitutes an “acceptable” or “mainstream” religion changes over time and differs from culture to culture. For exam-ple, Pope Pius XI, in the run-up to World War II, thanked Mussolini for suppressing public worship of the “cult” of Anglicanism. DAVID I. KERTZER, THE POPE AND MUSSOLINI: THE SECRET HISTORY OF PIUS XI AND THE RISE OF FASCISM IN EUROPE (Scribners, 2014). Mainstream religions, whether Christian, Jewish or Muslim, are more formally structured and reflect long-standing

belief systems. Unwittingly anticipating the Supreme Court’s approach to defining religion, Jerry Garcia, guitarist for the Grateful Dead, impish-ly remarked that “the only difference between a religion and a cult is the amount of real estate they own,” a conclusion not without historical logic. Courts have tolerated such outlandish religions as the World Church of the Creator, in which anti-Semitism and racism are the underlying premise to their entire belief structure. Scatena v. Rowland, 785 A.2d 1232 (2000). The Church of Wicca is considered a religion, in part, because witchcraft was an ancient pagan ritual that had been suppressed by various anti-witchcraft laws, even though its current manifestation began in England in the 1940’s. Dettmer v. Landon, 799 F.2d 929 (4th Cir. 1986).

More recently, the 4th Circuit ruled that a psychic’s core activity of predicting the fu-ture is not akin to a religious practice, but instead emanated from a “panoramic potpourri” of spiritual and secular inter-ests. Moore-King v. Cnty. of Chesterfield, 708 F.3d 560 (4th Cir. 2013). In Moore-King, Ms. King, (t/a “Psychic Sophie”) used a “fee for ser-vice” model when providing psychic services, thereby distancing herself from reli-gious activity since religious guidance is not “purchased chunks at a time.” At least one lay commentator has suggest-ed that, to avoid local regula-tions, psychics should claim to provide “divination” services

as a follower of Kemetic Or-thodoxy, Vodou, Santeria or some other recognized religion so as to be protected from onerous local regulations. Jason Pitzl-Waters, The Saga of Psychic Sophie (and the Regu-lating of Divination Services), THE WILD HUNT (March 7, 2013). http://wildhunt.org/. This commentator also suggests the creation of a national ac-creditation board for psychics in the same manner as doctors and lawyers in order to self-regulate the “profession” of psychics and to avoid a “crazy quilt” of local regulations im-pinging on their free speech.

But 12 years after the Lemon decision, the Supreme Court carved out an exception from the Establishment Clause for legislative prayer. The Supreme Court in Marsh v. Chambers, 463 U.S. 783 (1983), rejected the Eighth Circuit’s concern that legislative prayer created an entanglement “quagmire.” The Nebraska Legislature’s invocation practice: (1) chose a clergyman from a single Chris-tian denomination (Presbyteri-an) for 16 consecutive years; (2) paid the minister with pub-lic funds; and (3) used prayers that were within the Judeo-Christian tradition. The Su-preme Court held that Nebras-ka’s long and continuous prac-tice of choosing a clergyman from a single Judeo-Christian religious tradition neither ad-vanced nor disparaged any religion and could not be viewed as proselytizing. The Court rejected use of the Lemon test and relied instead on the “unambiguous and unbroken history of more than 200 years”

Page 4

Journal of Local Government Law to conclude that the invocation of Divine guidance on a legis-lative body is neither an estab-lishment of religion, nor even “a step toward establishment.” The Supreme Court also found that the legislature’s exclusive choice of a clergy-person from a single Christian denomina-tion to offer a non-sectarian Judeo-Christian prayer did not even “suggest” the advance-ment of the beliefs of a partic-ular church. The decision in Marsh represented an emphat-ic statement that legislative prayers were outside the norm of Establishment law. Prayer in other public settings re-mained unconstitutional. See e.g., Lee v. Weisman, 505 U.S. 577 (1992) (use of clergy for school invocations and bene-dictions is unconstitutional); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (voluntary group prayer for high school football teams is unconstitutional); N.C. Civil Liberties Union Legal Found. v. Constangy, 947 F.2d 1145 (4th Cir. 1991) (a judge open-ing court with a prayer is unconstitutional); Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003) (the VMI supper prayer is unconstitutional).

Disrupting the Quiet: Simpson v. Chester-field County (2003) For twenty years after Marsh, the Circuit Courts were active in resolving Establishment Clause claims using the Lemon test, but there was limited legal activity revolving around legislative prayer. One year after Marsh, Chesterfield County adopted a policy limit-

ing invocation prayer givers to volunteer clergy from mono-theistic religions. A Wiccan witch asked to give an invoca-tion and was rejected because Wicca embraces a pantheistic and neo-pagan belief system. The plaintiff, Cynthia Simpson filed an action in federal court claiming various constitutional violations, including the Es-tablishment Clause of the First Amendment. Simpson v. Cnty. of Chesterfield, 404 F.3d 276 (4th Cir. 2005). The trial court analyzed the case under the Lemon framework and held that the selection process unconstitutionally “endorsed” certain religions while dispar-aging non-conventional reli-gions. The Fourth Circuit reversed the trial court finding that the Chesterfield selection process was consistent with the breadth of the First Amendment as adopted in 1789 and the Marsh decision, neither of which afforded constitutional protection for polytheistic, neo-pagan be-liefs. Moreover, the use of volunteer clergy was more expansive and open than the choice of one Presbyterian minister in Marsh. The prayer policy and the prayers from the volunteer clergy them-selves enhanced a non-sectarian ideal.

Even though the selection process limiting prayer givers to monotheistic religions was the sole issue before the court in Simpson, the content of the prayers became important to satisfy the Court that the selec-tion process itself was not used to disguise a motive to prose-lytize in favor of Christian

faiths or to disparage polytheis-tic or pantheistic beliefs.

Judge Wilkerson’s opinion in Simpson has been cited in 35 Federal Circuit Court opinions in the 2nd, 3rd, 4th, 5th, 6th, 7th and 9th Circuits to explain the application of Marsh to a selection process for prayer givers that seemingly “disfa-vored” certain religions. The academic response to the Simp-son decision was uniformly negative. Commentators sug-gested Judge Wilkerson’s opin-ion took an overly “broad brush” look at the underlying logic of Marsh and that among many things wrong with the Simpson decision, its greatest defect was the Court’s inability to understand the constitutional infirmity of any selection pro-cess which singled out certain minority religions for disfa-vored treatment. Other exam-ples of academic bashing of the Simpson decision included:

a. The Simpson court incor-rectly rejected the idea that the identity of the prayer giver mattered and focused myopically on the content of the prayer which, when viewed collectively, were deemed inoffensive. Brian D. Lee, God Save the United States and This Honorable Court, 37 S. ILL. U.L.J. 441 (2013).

b. Simpson illustrates one court’s inability to under-stand why the county’s poli-cy was constitutionally ob-jectionable when it singled out minority beliefs for dis-favored treatment because the selection process was facially more inclusive than

Page 5

Journal of Local Government Law

that approved by the Marsh Court. Alan Brownstein, Symposium, Continuing the Constitutional Dia-logue: A Discussion of Jus-tice Steven’s Establishment Clause of Free Exercise Jurisprudence, 106 N.W. U.L. REV. 605 (2012).

c. The Marsh Court said that the Presbyterian minister’s (Palmer) selection did not reflect any denominational discrimination, rather he was chosen solely because he was the best candidate for the job. Simpson, by contrast, was rejected pre-cisely because of her theo-logical beliefs. Simpson’s religious denomination (Wicca) was the basis for her exclusion. Palmer’s re-ligious denomination (Presbyterian) was not the basis for his selection. The writer feared that a system of rotating prayer givers al-lows the government to mask an impermissible mo-tive of hostility toward dis-favored religions. Christo-pher C. Lund, Legislative Prayer and the Secret Costs of Religious En-dorsements, 94 MINN. L. REV. 972 (2010).

d. Ambiguity as to who the prayer giver will be can disguise threats to core Es-tablishment Clause values such as a duty of nonhostil-ity toward disfavored reli-gions. Lack of an ongoing pastoral relationship by us-ing a rotating chaplaincy program may allow a legis-lature to mask an imper-missible motive that would be unacceptable if it arose

in a “situated” chaplaincy program. The Simpson Court misread the “low” scrutiny given by the Marsh Court to the selec-tion process for a prayer giver for “no” scrutiny of a selection process that ended up with a facially problem-atic (Judeo-Christian only) invocation practice. A blanket exclusion based on faith such as in Chesterfield County would not survive an employed chaplain ap-proach if the legislature imposed a religious test for the office itself such as “only Protestants” need ap-ply. Jeremy G. Mallory, “An Officer of the House Which Chooses Him and Nothing More”: How Should Marsh v. Chambers Apply to Rotating Chap-lains, 73 U. CHI. L. REV. 1421 (2006).

e. The Simpson court mistak-enly concluded that the minimal review of the con-tent of legislative prayers also applies to the review of the selection process for the prayer giver. Since there are many religions outside the Judeo-Christian tradition, the Chesterfield limitation on prayer givers was actually more exclu-sive than the choice to use just one prayer giver in Marsh. Marsh only carved out a narrow exception from the Lemon test for the “act” of a prayer in a public governmental setting. The choice of a selection pro-cess for the prayer giver should still be subjected to the more rigorous Lemon

analysis to ascertain wheth-er there was an impermissi-ble motive to favor some re-ligions and not others. See Larson v. Valente, 456 U.S. 228 (1982) (any governmen-tal policy involving denom-inational preferences subject to “strict scrutiny” analysis); RECENT CASE: Constitu-tional Law – Establishment Clause – Fourth Circuit Holds That Local Govern-ment May Restrict the Lead-ing of Its Invocations to Representatives of Judeo-Christian Religions, 119 HARV. L. REV. 1223 (2006).

More Turmoil and Disagreement after Town of Greece v. Galloway After Simpson, the content of invocations became the battle-ground under the Establishment Clause over legislative prayer until the issue was resolved in Town of Greece. As in most traditional Establishment Clause cases, the Supreme Court in Town of Greece rested its decision on a review of a constellation of facts surround-ing the governmental practice of invocations. Because of the Court’s fact-centric analysis, any government attorney can still be left confused in apply-ing the decision when the facts in any given locality inevitabil-ity differ in large or small ways from the facts deemed relevant by the Supreme Court.

Justice Kennedy reiterated in Greece that the Marsh opinion said that there is no need for courts to define the precise boundaries of the Establish-

Page 6

Journal of Local Government Law ment Clause for legislative prayer because the specific practice of legislative prayer itself was accepted prior to the adoption of the First Amend-ment. Nor would an absolute requirement of non-sectarian prayers be consistent with the legislative prayer tradition as practiced in the United States for hundreds of years. The Marsh rationale then was seen by the Supreme Court in Greece as not dependent on the “neutrality” of the content of the prayers. Short of exploi-tation or disparagement lan-guage in the prayers, courts should not concern themselves with the content of a legisla-tive prayer. Marsh only re-quires a review of the “prayer opportunity” as a whole rather than the content of a single prayer.

Other facts and legal princi-ples found to be relevant in determining that the “prayer opportunity” in Greece did not constitute proselytizing or disparaging were:

1. The invocation was given at the start of the portion of the meeting largely ded-icated to legislative mat-ters;

2. Starting a meeting with an invocation is consistent with our national heritage;

3. The prayers themselves in Greece were solemn and respectful in tone without denigrating others, there-by, furthering shared ide-als helpful to good gov-ernance;

4. The principal audience of invocations is not the pub-

lic, but the elected offi-cials;

5. There is no indication that in Greece citizens were treated differently in gov-ernmental business de-pending on whether they joined the invocation or not;

6. People could come and go at any time within the meeting as they pleased; and

7. Prayer giving in Greece was open to volunteers from any faith tradition in-cluding atheists. Joe Palazzo, Supreme Court Ruling on Public Invoca-tions Gives Atheists a Prayer, WALL ST. J., July 15, 2014.

The Town of Greece had a curious practice of naming a “chaplain of the month” from the volunteer clergy giving invocations in which the chap-lain of the month stood at the front of the room with other civic leaders during the meet-ings. Rather than this practice being seen as a symbol of government endorsement of religion, it was instead seen by the Court as a positive ac-knowledgment of the central place of religion in our socie-ty.

Justice Kagan’s dissent argued that the Court’s opinion in Town of Greece didn’t just apply Marsh v. Chambers, it expanded the application of Marsh v. Chambers to dissimi-lar governmental practices. In her thinking, local government meetings are constitutionally dissimilar to the large legisla-

tive bodies that provided the factual context for the Marsh decision, in part, because citi-zens cannot participate in activ-ities of Congress or state legis-latures. Local government meetings are hybrids that in-clude elements of legislative, executive and judicial func-tions. In contrast to state legis-latures, local government meet-ings are human “free for alls” involving immediate and indi-vidualized personal impacts on participants. So courts should look skeptically at prayer prac-tices of local governments that may be tolerated in a more dignified state legislature. Not unlike the prohibition of pray-ers at school activities, Justice Kagan believes sectarian pray-ers cannot comport with the constitutional requirement of religious neutrality.

In response to the Town of Greece decision, a Maryland District Court, without com-ment, quickly vacated a prelim-inary injunction it had granted against Carroll County in Hake v. Carroll Cnty., 2014 U.S. Dist. LEXIS 67166 (D. Md., May 15, 2014), prohibiting invocations that had routinely used sectarian references. The County used a selection system of rotating elected officials to give invocations and had adopted a guideline that prayer givers should “refrain” from referring to sectarian religious images in light of previous Fourth Circuit decisions. In initially granting the injunction, the Maryland trial court seemed somewhat offended that public officials who had adopted a policy to “refrain” from sec-tarian references, felt no obli-

Page 7

Journal of Local Government Law gation to abide by their own policy and hinted that the policy may have been for “show” only.

In June Justice Scalia tried to use the decision in Town of Greece as a springboard to undercut the Lemon-based analysis used to review “Es-tablishment” claims not related to legislative prayer. Only one kindred soul (Justice Thomas), however, was taking the bait. Based on his dissenting opin-ion in the Court’s denial of a writ of certiorari in Elmbrook Sch. Dist. v. Doe 3, 134 S. Ct. 2283 (2014), Justices Scalia and Thomas are now arguing that the rationale of Town of Greece has rewritten the deci-sional matrix for other non-legislative prayer Establish-

ment claims. In Doe 3, the Seventh Circuit prohibited a high school from holding its graduation in a church because the sheer religiosity of the place would send a message of state endorsement of religion to impressionable youth. In his dissenting opinion to the deni-al of certiorari, Scalia argues that the Supreme Court has now rejected any further ap-plication of long-standing tests used in Establishment claims such as analyzing whether a governmental action has the purpose or effect of “endors-ing” religion. Scalia also be-lieves that Greece reinvigorat-ed the dominance of an historical review of past prac-tices or societal “understand-ings” that tolerated intermin-

gling religion and government when determining whether current governmental actions violate the Establishment Clause. For example, Scalia notes that, in the past, many schools held classes in religious buildings. Moreover, to Scalia, “mere” annoyance at seeing religious symbols does not equal government coercion to accept a religious overlay to public ceremonies.

1 Samatha Sedivy, a law student at the University of Richmond, con-tributed to this article. 2 U.S. CONST. amend. I: “Congress shall make no law respecting an establishment of religion, or pro-hibiting the free exercise there-of…”

Notice to Members: The Board voted at its January meeting of the 2011-2012 fiscal year to deliver the Journal to members by electronic distribution only beginning with the 2012-2013 fiscal year. If you become aware that as a member of the Local Government Section you are not receiving Journal via email, please contact the Journal Editor, Susan W. Custer, at su-san.custer5@gmail.com.

Bibliography & Back Issues Notice: A bibliography of all articles published in the Journal of Local Government Law may be accessed at the Section’s website: http://www.vsb.org/site/sections/localgovernment/publications. Local Government Section members have website access to back issues at the same site. The username is lgmember and the password is Kdqp38fm (reset August 8, 2012).

Page 8

Journal of Local Government Law Ethics Reform in the 2014 General Assembly Session: Some Solutions and Some Unaddressed Questions Roger C. Wiley Jeffrey S. Gore1

Introduction In the months preceding the 2014 Regular Session of the Virginia General Assembly, stung by media criticism that weak and confusing state laws governing public officials’ ethics had contributed to the ongoing scandal involving acceptance of large gifts by outgoing Governor Robert McDonnell and his wife, legis-lative leaders promised major reform legislation.2

The leadership of the General Assembly undertook a biparti-san effort to pull many of the proposed changes in Virginia’s public ethics statutes into identical House and Senate bills, HB 1211 and SB 649,3 both introduced at the begin-ning of the session. The Senate bill was referred to the Com-mittee on Rules, while the House version was referred to the Committee on Courts of Justice, and then to a specially created Ethics Subcommittee.

Both committees gave their respective bills more than the usual scrutiny. The members of the House subcommittee in particular held several extend-ed work sessions on HB 1211, discussing it section by section and line by line. The interrela-tionship of the definitions and substantive sections in the State and Local Government Conflict of Interest Act4 and its companion law applicable to state legislators, the General Assembly Conflict of Interest Act5 (together referred to as the “COI Acts”) is quite com-plex, and justifies this thor-ough approach. Whatever shortcomings some may per-ceive in the final product, it is difficult to fault the legisla-tors’ level of effort. While a number of legislators intro-duced other bills dealing with specific ethical issues, nearly all of them were eventually either rejected or incorporated into the two main bills.

The identical bills passed unanimously by the Virginia Senate and House and signed by current Governor Terence McAuliffe have not satisfied the critics,6 but they have made a number of significant and mostly useful changes.

Because the COI Acts parallel each other, the changes dis-cussed in this article apply to officers and employees of local government in the same way they affect state executive branch officials and the legis-lators themselves, except where differences are specifi-cally noted.

These legislative changes to the COI Acts, which became

effective July 1, 20147, in-clude:

• new requirements for filing financial disclosure statements,

• creation of a legislative branch agency with some oversight responsibility for the COI Acts,

• a reduction of the amount of a public official’s in-come from, or ownership in, a business or property that will trigger COI Act restrictions,

• some tightening of the rules about acceptance of gifts, especially those from lobbyists or busi-ness seeking contracts or other benefits from the official’s locality or gov-ernmental agency, and

• clarification of the rela-tionship between the COI Acts and Virginia’s crim-inal bribery laws.

Disclosure Requirements The first change to come to the attention of local public officials who have been filing annual financial disclo-sure statements under the COI Act will likely be the discovery that these state-ments must now be filed twice a year, with the dead-lines being December 15 and June 15.8 Those statements will cover the six month periods ending October 31 and April 30 respectively. 9 Registered lobbyists will also be required to report twice on the same schedule,10 which will make it easier to deter-mine whether lobbyists and

The authors of this article are princi-pals in the Richmond law firm of Hefty & Wiley, PC. Their practice is concentrated in advising and repre-senting local and regional govern-ment entities. They are both regis-tered to act as lobbyists in the Virginia General Assembly for a number of their clients. They may be reached via email at rog-er@heftywiley.com and jeff@heftywiley.com, respectively.

Page 9

Journal of Local Government Law officials are reporting the same gifts and entertainment events.

No change has been made in the list of local officials who are required to file disclosure statements; it still incudes members of local governing bodies and school boards and candidates for those offices, members of authorities with the power to issue bonds, and such other local officials or school officials as the govern-ing body or school board may designate.11 Locally elected constitutional officers also must continue to file disclo-sure statements, and on the new semi-annual schedule. 12 Members of local planning commissions, boards of zoning appeals, real estate assessors, county administrators and city or town managers must con-tinue to file an additional disclosure limited to real estate holdings, but this is still re-quired only once a year.13

Until now, local officials have been filing their disclosure forms with the clerk of their governing body, or for school board members, with the clerk of the school board.14 Begin-ning with the December 15, 2014 filing, all disclosure statements must be filed with the new Council that the Gen-eral Assembly has created to oversee COI Act and ethics matters.15 That entity will continue to use the local clerks, however, as the conduit for distributing the disclosure forms to the local officials who are required to complete and file them.16

Both these filing changes address some of the criticism that has been directed to the

previous provisions of the COI Act. By requiring the financial interest disclosure forms to be filed twice a year, the General Assembly has insured that the information on file for an official is more up-to-date, reducing the chance that an official may participate and vote on a matter before he has been legally required to file a form disclosing an interest that might affect his or her vote. Centralized filing of all dis-closures will also aid in the eventual creation of a compre-hensive database of officials’ financial interests comparable to that now provided by the Virginia Public Access Project (www.vpap.org) for campaign finance disclosures. Both of these changes will ultimately produce greater transparency about officials’ interests or relationships that may influ-ence public decision making.

The COI disclosure forms are one of the few instances in which the contents of a state governmental form are actual-ly prescribed by statute. The statutes prescribing these forms have been changed to reflect the other changes that have been made to the COI Acts, and to remove some previous inconsistencies be-tween the language prescribed for the forms and substantive language in other parts of the COI Acts.17

New Ethics Council The newly created legislative branch agency with general responsibilities under the COI Act is called the Virginia Conflict of Interest and Ethics Advisory Council (the “Ethics Council”).18 The Ethics Coun-

cil will have 15 members. The Speaker of the House of Delegates will appoint 1 current and 1 former delegate and 2 non-legislative mem-bers; the Senate Rules Com-mittee will appoint 1 current and 1 former senator and 2 non-legislators; the Governor will appoint 2 executive branch employees and 2 citizen members; and one member will be designated by the Attorney General. In addition there will be two local government representa-tives -- one appointed by the Speaker of the House from a list of 3 nominated by the Virginia Association of Counties, and 1 appointed by the Senate Rules Committee from a list of 3 nominated by the Virginia Municipal League.19

In addition to distributing and receiving financial dis-closure forms, the Ethics Council is charged with reviewing all disclosure forms for completeness, and with comparing forms filed by legislators with the disclo-sure forms filed by lobby-ists.20 Both of these are sig-nificant tasks that have not previously been performed either by the local clerks who have been receiving local officials’ forms, or by the Secretary of the Common-wealth, who has been the recipient of state-level forms.

Another new requirement is that, before each General Assembly session in an even- numbered year, all newly elected legislators must at-tend mandatory orientation sessions about the General Assembly COI Act and other

Page 10

Journal of Local Government Law ethics rules. Members first elected at a special election will get this training within three months of being elected. Returning legislators also must have a two hour refresher course before even-numbered-year sessions, but may accom-plish this online. The Ethics Council is responsible for this mandatory training. 21

Other powers and duties22 of the new Ethics Council in-clude:

• Providing software for electronic filing of disclo-sure forms.

• Establishing a searchable online database of disclo-sure filings by July 1, 2015.

• Conducting training ses-sions for state executive branch officials, state and local employees, lobbyists and others.

• Publishing training mate-rials.

• Rendering both informal advice (which is exempt from Freedom of Infor-mation Act disclosure) and formal published opinions to public officials, lobby-ists and others about ap-plication of the COI Acts.

• Reviewing member disci-pline issues for the Gen-eral Assembly, and offer-ing non-binding advice.

• Making an annual report on the Council’s activities, and recommending legisla-tive changes to the Gen-eral Assembly and the Governor.

Staffing and Funding Issues Like the Freedom of Infor-mation Advisory Council on which it is modeled, the Ethics Council will be staffed by employees in the Division of Legislative Services.23 The biennial budget for FY 2015 and FY 2016, finally adopted by the General Assembly in June 2014, included a supple-mental appropriation of $150,000 in FY 2015 and $300,000 in 2016 to provide added staffing and other sup-port for the Ethics Council.24

Despite some unsuccessful attempts at floor amendments, HB 1211 and SB 649, the 2014 omnibus COI Act bills that created the Ethics Council ultimately passed both legisla-tive chambers unanimously and in identical form.25 When presented with the bills for signature, Governor Terence McAuliffe returned them to the General Assembly on April 7, 2014, with a number of recommended technical amendments, mostly to correct minor drafting errors. 26 At the reconvened regular session on April 23, 2014, both chambers agreed unanimously to the Governor’s amendments, and he signed both bills into law the same day.27

Even though he had signed the bills creating it, Governor McAuliffe announced on June 21, 2014, that he was vetoing the appropriation for the Eth-ics Council, saying that the General Assembly’s attempt at COI and ethics reform was “far weaker that what Virgini-ans deserve.”28 McAuliffe vowed to present revised

legislation in the 2015 ses-sion.29 Until then, he said “creation of a new bureau-cracy…would be prema-ture.”30 He also suggested that the scope of the Ethics Council’s responsibilities might be unconstitutional31, an apparent reference to the transfer of responsibility for executive branch disclosure statements from the Secretary of the Commonwealth to a legislative branch agency.32

On June 23, 2014, the House of Delegates voted 70-27 to override the Governor’s veto, 33 but the Senate vote to do so was 19-1834, short of the constitutionality required 2/3rds majority.35 This jab at the Council may put the Governor at odds with some other critics of the ethics reform effort, who have expressed regret that the General Assembly did not given the Council even broader investigative and enforcement powers in COI and public ethics matters.36

As this article is being writ-ten, the effect of this veto of added staffing for the Ethics Council is uncertain. Pre-sumably some of the Ethics Council’s functions can go forward using existing re-sources at the Division of Legislative Services or by transferring funds from other legislative branch activities. It seems likely, however, that the efforts of the Ethics Council in its initial year of operation will focus on its core missions of developing, distributing and receiving COI disclosure forms and conducting mandatory train-ing for General Assembly

Page 11

Journal of Local Government Law members. Reviewing thou-sands of forms filed by local officials and offering training to state agencies and at the local level are unlikely to be top priorities until the funding dispute between the Governor and the General Assembly is resolved and more resources are made available to the Ethics Council.

Substantive and Definitional Changes Until now the COI Act’s defi-nitions of “personal interest” have used a minimum of $10,000 in annual income or ownership in a business or property that would make a public official subject to the restrictions or prohibitions on contracts involving the offi-cial’s public agency or in transactions before the agency that affect the official’s prop-erty or business. Officials filling out their disclosure forms for the December 15, 2014 filing will quickly notice that this trigger amount, both for disclosure purposes and for application of the contracting and transactional restrictions in the COI Acts, has been reduced to $5,000.37

While that change makes the COI Acts more restrictive, a change regarding the Acts’ application to an official’s family members actually makes it less so. Until now, the COI Act has imputed to a public official the financial interests created by the em-ployment, business or property of the official’s “immediate family” which has been de-fined as the official’s spouse, and any dependent living in the official’s household, re-

gardless of the dependent’s relationship to the official. As a result of 2014 changes to the definition of “immediate fami-ly’ in the COI Acts, only the interests of the official’s spouse or dependent children are imputed to the official.38

While this may not seem like a drastic change, it will alter the COI Act analysis in some situations. For example, sup-pose a city council member has an elderly parent living in his or her household who is financially dependent on the official, but who still owns property in the council mem-ber’s locality. Previously, if a city council were considering a rezoning that would impact the elderly parent’s property, the council member would have to disclose the parent’s interest, and perhaps refrain from participating and voting on the zoning matter. Now, that will no longer be required, because the parent is not with-in the revised definition of “immediate family,” whose financial interests are imputed to the public official.

This more restrictive defini-tion of “immediate family” also highlights, but does not alter, what has always been an irony in the COI Acts. By using the term ”spouse,” the Acts fail to create any respon-sibility for any public official to report or refrain from par-ticipating in matters involving an adult partner (regardless of gender) with whom the offi-cial is cohabiting in a long-term relationship but not legal-ly married. Thus a legislator or member of a local governing body may be legally prohibit-ed from voting on a matter

involving his wife’s employ-er, but not restricted at all in a similar matter involving the employer of the official’s unmarried domestic partner either male or female. The 2014 amendments do nothing to address this anomaly.

Reporting and Restrictions on Gifts Because the McDonnells’ highly publicized problems (including pending federal criminal charges) were most-ly caused by accepting ex-pensive gifts and cash loans from a businessman seeking state contracts and related opportunities39, it is no sur-prise that the 2014 amend-ments to the COI Acts make a number of changes defining those gifts that may be ac-cepted with disclosure and those that are prohibited altogether.

Unlike the amendments previously discussed in this article, which applied in the same manner to both the State and Local Government COI Act and the General Assembly COI Act, there were and still are some sig-nificant differences between the regulation of gifts to public officials under the state and local government COI Act and that which applies to the General As-sembly.

Perhaps the most significant change, however, applicable to both COI Acts, is the distinction now made be-tween tangible and intangible gifts. “Intangible gifts” are defined as things of tempo-rary value or that lose value upon the happening of an

Page 12

Journal of Local Government Law event. They include entertain-ment, hospitality, tickets or admission to events, transpor-tation, lodging and meals. 40 Local officials may accept intangible gifts from lobbyists or their principals, or from people or businesses that have or are seeking contracts with the official’s locality. If intan-gible gifts are worth more than $50, local or state officials who have to file COI financial disclosure forms must report them on those forms.41

In contrast, tangible gifts include things that do not automatically lose their value upon the happening of an event. In addition to physical items, they include securities or cash (except for cash reim-bursements in connection with an intangible gift, such as reimbursement for an official’s mileage to drive to or park at a sporting event).42 No officer or employee of a local govern-mental agency may accept any tangible gift or combination of tangible gifts in a single year worth more than $250 from a lobbyist, a lobbyist’s principal, or a person or business that has or is seeking a contract with the gift recipient’s locali-ty.43 Gifts from such sources under $250 may be accepted, but must be disclosed by the local public official if he or she is one who is required by the COI Act or by designation by the local governing body to file semi-annual disclosure statements.44

To illustrate the differences in these types of gifts and the legal requirements associated with them, imagine that a partner in a large engineering firm wants to strengthen his

relationship with the county by entertaining the chairman of the board of supervisors. After the 2014 amendments, the chairman may:

• Accept lunch from the engineer without reporting it on the chairman’s next semi-annual disclosure statement, because it is an intangible gift worth less than $50.

• Allow the engineer to pay for a round of golf at the local country club, and drinks afterward, because those are intangible gifts worth more than $50 in the aggregate, but report it on the chairman’s next semi-annual disclosure statement.

• Accept the gift of a new putter worth $200 from the engineer but report it on the chairman’s next semi-annual disclosure statement.

• Not accept the gift of an entire set of gold clubs from the engineer because it would be a tangible gift worth more than $250.

These same restrictions would apply to gifts, tangible or intangible, made to the county board chairman’s spouse, or to his dependent children who live with him. Because of the COI Act’s very limited defini-tion of “immediate family” discussed above, however, they would not apply to gifts to the chairman’s adult chil-dren living outside his house-hold, or to gifts made to any other members of the chair-man’s family regardless of whether they resident with

him or are financially de-pendent on him. Some of the disputed gifts made to the McDonnell family were allegedly directed to the Governor’s adult daughters no longer living in his house-hold.45 Because of the very restrictive “immediate fami-ly” definition in the 2014 amendments, that would still not be a prohibited gift.46 It certainly seems possible that, at least in some situations, a gift to an official’s parent, sibling, adult son or daughter or other close relative could influence the official’s deci-sion making, even if those relatives are not the official’s dependents. Until the Gen-eral Assembly expands the reach of its gift restrictions and reporting requirements to these other relatives, some people will still view the COI Acts as inadequate.

Part of the definition of “gifts” under the COI Acts has always included a state-ment of some things that are not considered to be gifts restricted or reportable under the Acts.47 That listing has previously included properly reported campaign contribu-tions, and tickets or passes to events that the recipient does not use.48 These are still not considered gifts for COI Act purposes.49 Added to the list of exclusions are gifts related to a public official’s private occupation or business, ra-ther than to his or her public position.50 A scholarship or other student financial aid to a public official or to his or her spouse or dependent child is likewise not a “gift” under the COI Act, as long as

Page 13

Journal of Local Government Law it is awarded based on stand-ards and procedures applicable to the general public.51

Gifts from relatives or person-al friends also continue to be excluded from the COI Acts restrictions and reporting requirements, but under the 2014 amendments, a lobbyist, a lobbyist’s principal, or a contractor or prospective contractor with the public official’s agency may not be considered a personal friend for this purpose. 52 The defini-tion of a relative whose gifts to a state or local officer or em-ployer are exempt from the act is much broader than the “im-mediate family member” defi-nition previously discussed. 53 That broader definition in-cludes the public official’s siblings, parents, children, aunts, uncles, grandchildren and grandparents, and people related to the official’s spouse in the same way. Gifts to the official from relatives in all those categories are exempt from all requirements, but gifts to any of them except spouses and dependent children are not considered gifts to the official.

Relationship of COI Act to Criminal Bribery Laws The 2014 amendments also state that an official advisory opinion from the Ethics Coun-cil saying that an official is not violating the relevant COI Act is a bar to prosecution under that Act, just as has previously been the case for an official opinion from a local Com-monwealth’s Attorney or the Attorney General.54

That immunity only extends, however, to prosecutions for violations of the COI Acts themselves. Other language added by the 2014 amend-ments make it clear that com-pliance with the COI Acts is not a bar or defense to prose-cution for a violation of any other criminal statute, includ-ing specifically those dealing with bribery of public officers or employees or political party officials.55 These provisions are at least a partial answer to the critics who say the COI Acts aren’t restrictive enough. Even if a public official ac-cepts a gift from a prospective contractor or participates in a transaction in which he or his relative has a financial inter-est, in circumstances that are not technically a violation of either COI Act, if he has ef-fectively sold his vote, he may still have violated the bribery statutes, and may still be pros-ecuted for that violation.

Summary and Conclusions The General Assembly’s attempt at sweeping ethics reform in its 2014 Regular Session has achieved mixed results. On the positive side, more frequent financial dis-closures by public officials and synchronization of enter-tainment reporting by lobby-ists and legislators will in-crease transparency, and mandating COI Act training for legislators is a useful step that could readily be duplicat-ed by local governments. Making a clear distinction between gifts of meals and entertainment that are accept-ed practice, and more lavish gifts of money or merchandise

that are less widely accepted is also a positive step, alt-hough some critics believe the limits on these practices are still too lenient.56 Some problems remain, most nota-bly with not sufficiently recognizing the possible improper influence of the financial interests of their adult family members on public officials’ decisions. Gifts to those family mem-bers are also still not ade-quately addressed. It remains to be seen whether the new Ethics Council can effective-ly improve COI Act compli-ance and encourage more ethical public practices with-out having definitive investi-gative and enforcement. Governor McAuliffe’s veto of initial funding for the Ethics Council may also hamstring its ability to fulfill all its statutory responsibility, at least until funding for its staff is restored. As events unfold, it is unlikely the General Assembly will be able to avoid giving addi-tional attention to public ethics issues.

1 Leah Dubuisson, a third-year student at the University of Richmond Law School, has assisted with analysis of 2014 HB 1211 and SB 649, and with other research for the article. 2 Laura Vozzella, Virginia Gen-eral Assembly Begins Compli-cated Search for Consensus, WASH. POST, Jan. 7, 2014, http://www.washingtonpost.com/local/virginia-politics/virginia-general-assembly-begins-complicated-search-for-

Page 14

Journal of Local Government Law

consensus/2014/01/07/e30ec3c8-7734-11e3-8963-b4b654bcc9b2_story.html; Edito-rial, Get Serious about Ethics in Va., WASH. POST, Aug. 1, 2013, http://www.washingtonpost.com/opinions/get-serious-about-ethics-in-va/2013/08/01/339cea3e-fabe-11e2-a369-d1954abcb7e3_story.html. 3 Chief co-patrons of HB 1211 (2014 Reg. Sess.) were Republi-can Delegates C. Todd Gilbert and David B. Albo, and Delegates Jennifer L. McClellan and David J. Toscano, both Democrats. Republican Senator Thomas K. Norment, Jr., was chief patron of SB 649 (2014 Reg. Sess.); chief Senate co-patrons were Republi-cans Ralph K. Smith, Richard H. Stuart, and Jeffrey L. McWaters, and Democrats Kenneth Alexan-der, Adam P. Ebbin, John .S. Edwards, Barbara A. Favola and J. Chapman Petersen. 4 Va. Code Ann. §§ 2.2-3100 to -3131 (2012). 5 §§ 30-1 to -358. 6 Jim Nolan, Lawmakers Reach Agreement on Ethics Reform, RICHMOND TIMES-DISPATCH, Mar. 8, 2014, http://www.timesdispatch.com/news/state-regional/lawmakers-reach-agreement-on-ethics-reform/article_ebbf3cf0-a6e6-11e3-8763-001a4bcf6878.html; Laura Vozzella, McAuliffe Does Not Make Substantive Changes to Virginia Ethics Bill, WASH. POST, Apr. 7, 2014, http://www.washingtonpost.com/local/virginia-politics/mcauliffe-does-not-make-substantive-changes-to-virginia-ethics-bill/2014/04/07/ab67bfcc-bea8-11e3-b574-f8748871856a_story.html; see also Statement of Governor Ter-ence McAuliffe on 2015-2016 Budget Actions, OFFICE OF THE GOVERNOR (June 20, 2014),

http://governor.virginia.gov/news/newsarticle?articleId=5216. 7 Laws and Regulations, VA. DIV. OF LEGISLATIVE SERV. (last visited July 7, 2014), http://dls.virginia.gov/laws.html. 8 §§ 2.2-3114 (deadlines for state officials), -3115 (deadlines for local officials) and 30-110 (deadines for legislators). 9 Id. 10 § 2.2-426. 11 § 2.2-3115. 12 § 2.2-3116. 13 § 2.2-3115(G). 14 Id. 15 § 2.2-3115(A), (B), (D), (G). 16 § 2.2-3115(G). 17 §§ 2.2-3117 to-3118; § 30-101. 18 § 30-348(A). 19 § 30-348(B). 20 § 30-349(1). 21 § 30-129.1. 22 See § 30-349. 23 § 30-350. 24 H.B. 5002, at item 25.10, 2014 Gen. Assemb. Special Sess. I (Va. 2014) available at http://lis.virginia.gov/142/bud/budsum/HB5002enr.pdf. 25 H.B. 1211, 2014 Gen. Assemb., Reg. Sess., Act of Apr. 23, 2014, ch. 792, 2014 Va. Acts, available at http://lis.virginia.gov/cgi-bin/legp604.exe?141+ful+CHAP0792; S.B. 649, 2014 Gen. As-semb., Reg. Sess., Act of Apr. 23, 2014, ch. 804, 2014 Va. Acts, available at http://lis.virginia.gov/cgi-bin/legp604.exe?141+ful+CHAP0804. 26 Id.; see also Vozzella, McAuliffe Does Not Make Sub-stantive Changes to Virginia Ethics Bill, supra note iii. 27 Id.

28 Statement of Governor Ter-ence McAuliffe on 2015-2016 Budget Actions, supra note iii. 29 Statement of Governor Ter-ence McAuliffe on 2015-2016 Budget Actions, supra note iii. 30 Statement of Governor Ter-ence McAuliffe on 2015-2016 Budget Actions, supra note iii. 31 Statement of Governor Ter-ence McAuliffe on 2015-2016 Budget Actions, supra note iii. 32 Statement of Governor Ter-ence McAuliffe on 2015-2016 Budget Actions, supra note iii. 33 House Minutes, Va. H.D. (June 23, 2014), http://vacap.legis.virginia.gov/cham-ber.nsf/25eeb1bc05736b308525713a00610dd3/5b5ea63bd7bee4c585257d00006c62ab?OpenDocument. 34 Senate Minutes, Va. Sen. (April 23, 2014), http://leg1.state.va.us/cgi-bin/legp504.exe?142+min+SM0623. 35 VA. CONST. ART. V, § 6. 36 H.B. 1211, 2014 Gen. As-semb., Reg. Sess., Act of Apr. 23, 2014, ch. 792, 2014 Va. Acts, available at http://lis.virginia.gov/cgi-bin/legp604.exe?141+ful+CHAP0792; S.B. 649, 2014 Gen. Assemb., Reg. Sess., Act of Apr. 23, 2014, ch. 804, 2014 Va. Acts, available at http://lis.virginia.gov/cgi-bin/legp604.exe?141+ful+CHAP0804. 37 §§ 2.2-3101 and 30-101 (de-fining personal interest); §§ 2.2-3117 and 30-111(providing disclosure forms). 38 §§ 2.2- 3101 and 30-101 (defining “immediate family”). 39 Vozella, Virginia General Assembly Begins Complicated Search for Consensus, supra

Page 15

Journal of Local Government Law

note i; Editorial, Get Serious about Ethics in Va., supra note i. 40 §§ 2.2-3103.1(A) and 30-103.1(A)). 41 § 2.2-3103.1(A); § 2.2-3117 (Item 5 on disclosure form, limit-ing disclosure to events or enter-tainment over $50 in value). 42 §§ 2.2-3103.1(A) and 30-103.1(A). 43 §2.2-3103.1(B). 44 Id. 45 Indictment at 29, United States v. McDonnell, No. 3:14-cr-00012-JRS (E.D. Va. Jan. 21, 2014) available at http://big.assets.huffingtonpost.com/mcdonnell.pdf; Rosalind S. Helderman, More Questions about Financing of McDonnell’s Daugh-ter’s Wedding, WASH. POST, Apr. 9, 2013, available at http://www.washingtonpost.com/local/va-politics/mcdonnell-signed-contract-for-wedding-food-later-paid-by-donor/2013/04/09/9ec9f85c-a05e-11e2-9c03-6952ff305f35_story.html.

46 §§ 2.2- 3101 and 30-101 (defin-ing “immediate family”). 47 HB 1063, VIRGINIA LEGISLATIVE INFORMATION SYSTEM, http://lis.virginia.gov/cgi-bin/legp604.exe?941+ful+CHAP0724 (last visited June 22, 2014). 48 Id. 49 §§ 2.2-3101 and 30-103 (defin-ing “gifts”). 50 Id. 51 Id. 52 §§ 2.2-3101 and 30-103 (defin-ing of “gifts” and listing exclusion from definition of personal friend at (v)). 53 See also § 2.2-4368, which applies a different and broader definition of “immediate family” for purposes of the ethics re-strictions in the Virginia Public Procurement Act. That definition includes public procurement officials’ spouses, children, par-ents or siblings regardless of residence or dependency, then includes “any other person resid-

ing in the same household” as the procurement official. Id. Other language makes it clear that this definition “shall apply notwithstanding the fact that the conduct described may not constitute a violation of the State and Local Government Conflict of Interests Act.” § 2.2-4367. 54 §§ 2.2-3121 and 30-124. 55 H.B. 1211, 2014 Gen. As-semb., Reg. Sess., Act of Apr. 23, 2014, ch. 792, 2014 Va. Acts, available at http://lis.virginia.gov/cgi-bin/legp604.exe?141+ful+CHAP0792; S.B. 649, 2014 Gen. Assemb., Reg. Sess., Act of Apr. 23, 2014, ch. 804, 2014 Va. Acts, available at http://lis.virginia.gov/cgi-bin/legp604.exe?141+ful+CHAP0804. 56 Vozzella, McAuliffe Does Not Make Substantive Changes to Virginia Ethics Bill, supra note iii; Editorial, Get Serious about Ethics in Va., supra note i.

Page 16

Journal of Local Government Law

Virginia State Bar’s Local Government Fellowship: The Board of Governors is delighted to announce that Jennifer Callahan has been selected as the 2014 Virginia State Bar Local Govern-ment Fellow. First awarded in 2013, the Local Government Fellowship recognizes each year one outstanding Virginia law student who will work full-time during the summer at a local govern-ment attorney’s office within the Commonwealth. As a rising 3L student at the Washington and Lee University School of Law, Jennifer is working this summer at the Richmond City Attorney’s Office. In addition to receiving a $4,000 fellowship, the Local Government Fellow also receives the opportunity to submit a piece for potential publication in the Journal of Local Government Law. Applications for next year’s fellowship will open in January 2015.More information about the VSB Local Government Fellowship is available at http://www.vsb.org/site/sections/localgovernment-news/vsb local government fellowship.

The Metropolitan Revolution By Bruce Katz and Jennifer Bradley For decades, Virginia localities needed to be sources of innovation and creativity in order to keep up with the changing nature of business, technology, and service delivery. Since the onset of the great recession, Virginia localities have been asked to do more with less. Although a particularly difficult task under any circumstances, the budget crisis and political deadlocks in Washington and Richmond have exacerbated the challenge for Virginia localities whose creativity is limited by the application of the Dillon Rule. More and more, Virginians are looking for solutions at the local and regional levels. Below is a reprint (with permission of the author and publisher) of the Foreword to the book entitled, The Metropolitan Revolution: How Cities and Metros Are Fixing Our Broken Politics and Fragile Economy. The book sets forth examples of how localities (mostly urban cities) are creatively addressing the challenges and becoming leaders in economic growth, handling social issues and improving service delivery. The Metropolitan Revolution can be found at ISBN-13:978-0815721512 and has a list price of $33.00.

Leo P. Rogers

Page 17

Journal of Local Government Law

Page 18

Journal of Local Government Law

Page 19

Journal of Local Government Law

Page 20

Journal of Local Government Law

Page 21

Journal of Local Government Law

Local Government Law Section Annual Report Erin C. Ward, Chair

Membership: As of June 23, 2014, the Section had 645 members, including 29 judges.

Annual Meeting CLE Programs: The Section co-sponsored a continuing legal education program at the VSB Annual Meeting titled “Pub-lic-Private Partnerships: Smooth Sailing or Choppy Waters in the Wake of Elizabeth River Crossings and VDOT v. Meeks?” The co-sponsors were the Construction Law & Public Contracts, Real Property, Ad-ministrative Law and Environmental Law Sections.

Significant Issues:

The Section electronically published three of the four quarterly issues of the Journal of Local Government Law. Several authors were unable to meet deadlines for the Spring issue, and so the Section cancelled that edition and used the cost savings as an opportunity to bring the budget back into line. As we approached the end of the fiscal year, the Section was projecting a slight budget shortfall because the costs of the Summer edition of the Journal from the previous fiscal year had been paid out of this year’s budget. With that adjustment, the Section is well-positioned to remain on budget in the coming year.

During the 2012-2013 fiscal year, the Section’s Board of Governors established a fellowship to be award-ed to one law student who has accepted an offer to work full-time at a local government attorney office. The 2014 fellowship, for $4,000, was awarded to Jennifer Callahan, who is working this summer in the City Attorney’s Office in Richmond.

Officers and Members:

The Officers for 2013-2014 were: Erin C. Ward, Chair; Bonnie France, Vice Chair; and, Annie Kim, Secretary. Leo Rogers was immediate past chair and remains as a Board member for his unexpired term.

At the Section’s annual meeting on June 13, 2014, the Section elected the following officers: Bonnie France, Chair; Annie Kim, Vice Chair; and Lawrence Spencer, Secretary. The Section members also voted to approve Andrew McRoberts, Sharon Pandak, Larry Spencer, Lesa Yeatts, and Eric Young to serve a second term.

Page 22

Virginia State Bar Local Government Law Section 2014-2015 Board of Governors

Bonnie M France Chairman

McGuireWoods LLP One James Center 901 E. Cary Street Richmond, VA 23219-4030

Annie Kim Vice Chairman Assistant Dean for Public Service University of Virginia School of Law 580 Massie Road

Charlottesville, VA 22903

Larry S. Spencer, Jr. Secretary Town of Blacksburg Attorney 300 S. Main Street P. O. Box 90003 Blacksburg, VA 24062-9003

Erin C. Ward Immediate Past Chairman Fairfax County Attorney’s Office 12000 Government Center Pkwy Suite 549 Fairfax, VA 22035-0064

Eric Anthony Gregory King George County Attorney Suite 200 10459 Courthouse Drive King George, VA 22485

Stephen A. MacIsaac Arlington County Attorney 2100 Clarendon Blvd., Suite 403 Arlington, VA 22201

Andrew R. McRoberts Sands Anderson PC Suite 2400, 1111 East Main Street P. O. Box 1998 Richmond, VA 23218-1998

Sharon E. Pandak Greehan, Taves, Pandak & Stoner 4004 Genesee Place, Suite 201 Woodbridge, VA 22192

Leo P. Rogers, Jr. Past Chairman James City County Attorney P.O. Box 8784 Williamsburg, VA 23187-8784

Lesa J. Yeatts, Esq. City of Hampton Attorney’s Office 22 Lincoln Street City Hall Building Hampton, VA 23669

Charles Eric Young Tazewell County Attorney 108 E. Main Street Tazewell, VA 24651

Susan Warriner Custer Journal Editor 7618 Sweetbriar Road Richmond, VA 23229 Theresa B. Patrick Liaison Virginia State Bar 1111 East Main Street Suite 700 Richmond, Virginia 23219-3565

STATEMENTS OR EXPRESSIONS OR OPINIONS APPEARING HEREIN ARE THOSE OF THE AUTHORS AND NOT

NECESSARILY THOSE OF THE STATE BAR OR SECTION