Is it legally permissible for a locality in Virginia to donate taxpayer dollars to a little league? Is it OK for a locality to provide taxpayer funds to a charity as a gift? Are localities appropriating discretionary funds or General Fund revenues in ways that violate the Constitution or the Code of Virginia? That’s been a nagging question in my mind for some time that got answered by Attorney General Ken Cuccinelli today, and the response is fascinating.
In January the Attorney General issued an official opinion in response to a question posed by Delegate O’Bannon about the constitutionality of the General Assembly’s longstanding habit of earmarking funds to non-state entities in apparent contravention to Article 4, Section 16 of the Virginia Constitution. The opinion strongly argues that the plain language “to prohibit the appropriation of public funds … for charitable purposes” regardless of how noble the intent of the exercise is expressly prohibited, and brought to a screeching halt all sorts of dubious diversions of taxpayer dollars.
Since localities in Virginia only have the authorities expressly granted to them by the General Assembly, I wondered whether this Constitutional restriction applied to localities as well. So I asked my local member of the House of Delegates, Bob Marshall, if he could request guidance from the Attorney General on this point, and rather quickly I got an answer.
The Attorney General replied that this question was addressed within a footnote of that January opinion, which reads:
The General Assembly has enacted enabling legislation that permits such donations by localities. VA. CODE ANN. § 15.2-953 (Supp. 2010) (authorizing counties to make appropriations and donations to charities located within their jurisdiction).
That code section (click here to read it) narrowly identifies several circumstances under which a locality can appropriate funds to a charity or non-governmental organization. Recipients cannot be affiliated with a religious organization unless the organization is providing services to the county, for example. A locality can give money to a Chamber of Commerce, it can fund colleges and universities, it can give money to a 501(c)(3) organization for the purposes of promoting energy efficiency. Localities are not authorized to hand out public money to anyone it thinks is worthy or noble, even if it is a 501(c)(3), unless it meets some strictly defined criteria.
So most of the money localities hand out to private entities would appear to fall outside of these legal guidelines. Not good.
This raises another question, however. If the General Assembly is prohibited by the Constitution from appropriating funds to non-state entities, where exactly does it get the power to provide localities an authority it does not itself have? It would seem to me that another question about the constitutionality of VA Code § 15.2-953 itself is in order, because the General Assembly likely does not have the legal authority to authorize localities to engage in behavior it itself is prohibited from engaging in under the Constitution of Virginia.
So here’s my follow up to the Attorney General:
If Article 4, Section 16 of the Constitution of Virginia prohibits the General Assembly from appropriating public money to non-state entities, did the General Assembly exceed their constitutional authority in enacting VA Code 15.2-953? It would appear to me that if the General Assembly does not have the legal authority to engage in a behavior they similarly lack the legal authority to authorize a locality to engage in that same prohibited behavior.
The response to that question is going to be very interesting, and the implications are pretty significant.
In the meantime, assuming that VA Code Section 15.2-953 is constitutional, there are a lot of localities consistently engaging in legally prohibited behavior with taxpayer money.
UPDATE: After further research it would seem that VA Code Section 15.2-953 is constitutional because of the following language in the Constitution of Virginia appearing in Article 3, Section 16. The relevant portion is emphasized:
The General Assembly shall not make any appropriation of public funds, personal property, or real estate to any church or sectarian society, or any association or institution of any kind whatever which is entirely or partly, directly or indirectly, controlled by any church or sectarian society. Nor shall the General Assembly make any like appropriation to any charitable institution which is not owned or controlled by the Commonwealth; the General Assembly may, however, make appropriations to nonsectarian institutions for the reform of youthful criminals and may also authorize counties, cities, or towns to make such appropriations to any charitable institution or association.
Still, a quick review of the recently passed budgets of several counties and cities suggest a number of appropriations made that are not compliant with 15.2-953, including several millions of dollars given to charities by Fairfax County in support of “affordable housing.” I hope some readers in Fairfax County and elsewhere start asking for explanations of how these appropriations meet the requirements of the law and demand, if the appropriations are unlawful, that they be suspended and the money returned to the taxpayers.
The opinions expressed here are solely the views of the author, and not representative of the position of any organization, political party, doughnut shop, knitting guild, or waste recycling facility, but may be correctly attributed to the Vast Right-Wing Conspiracy. If anything in the above article has offended you, please click here to receive an immediate apology.
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