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I’m Getting Awfully Tired Of This Crap

By Greg L | 3 August 2012 | Prince William County | 14 Comments

Is this the dumbest, most contrived, utterly laughable legal argument masquerading as political cover you’ve ever seen?

“To the extent that the proposed amendment would bar a member of the Board of County Supervisors from casting a vote on an issue when that member is otherwise fully empowered by the Code of Virginia to vote, the amendment exceeds the Board’s legal authority and should not be adopted.” - Angela Horan in confidential memo to members of the PWCBOS

So let me get this straight:  Because the Virginia Code does not require that members of the Board of Supervisors who sit on the board of a private entity seeking taxpayer funding, or has accepted political contributions from a private entity seeking favorable zoning decisions from the board to recuse themselves from a vote, a policy that would require such recusal would not be legal?  Well then, the Code of Virginia doesn’t require that members of the board fire a member of their legislative staff because that person worked on a political campaign either, but the Board rammed through a prohibition on that, without even any opportunity for the public to weigh in on the proposal!  I’d love to see the memo Angela Horan whipped out on that one.

This is just friggin ridiculous.  Utterly unacceptable.  How anyone (nudge, nudge, wink, wink) could have begged Horan to fabricate such utter stupidity without putting their own law license in serious jeopardy utterly escapes me.

Here’s the memo, courtesy of the Sheriff:

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14 Comments

  1. Chester said on 3 Aug 2012 at 8:47 pm:
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    “To the extent that the proposed amendment would bar a member of the Board of County Supervisors from casting a vote on an issue THAT SUBSTANTIATES A CLEAR CONFLICT OF INTEREST IF BROUGHT TO ME AS A CITIZEN COMPLAINT when that member is otherwise fully empowered by the Code of Virginia to vote, the amendment exceeds the Board’s legal authority and should not be adopted BECAUSE I AM A BRAIN DEAD MORON.” - Angela Horan in confidential memo to members of the PWCBOS

  2. Done with 'em said on 3 Aug 2012 at 8:52 pm:
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    When you don’t know right from wrong, having a lawyer who doesn’t know right from wrong won’t help you learn right from wrong. When, oh when, will the Chairman of this corrupt BOS be heard on this issue? Zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz…burp…

  3. Pink said on 5 Aug 2012 at 12:46 pm:
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    We sure would like to see this in Manassas City to prevent Sheryl Bass and Hal Parrish, both board members of the (Mark Wolfe) Manassas Ballet, from voting every year to give public money to the Wolfe’s ballet! Can we get a write in on this please?????

  4. Robert L. Duecaster said on 6 Aug 2012 at 10:39 am:
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    Greg, et.al.:

    After researching the VA Code on the issue of conflicts of interest, I’m loathe to say that I agree with Ms. Horan. Apparently, the Commonwealth allows conflicts to exist as long as the conflict is diffused with other board members, partners, etc. For example, if a vote comes up to give money to the Latvian Tap Dance Charitable Trust, and Corey is a member of that Trust’s board of directors, Corey could vote on that issue if the board of that trust is made up of at least three members. Consider the following from the VA State Code:

    § 2.2-3112. Prohibited conduct concerning personal interest in a transaction; exceptions.

    A. Each officer and employee of any state or local governmental or advisory agency who has a personal interest in a transaction:

    1. Shall disqualify himself from participating in the transaction if (i) the transaction has application solely to property or a business or governmental agency in which he has a personal interest or a business that has a parent-subsidiary or affiliated business entity relationship with the business in which he has a personal interest or (ii) he is unable to participate pursuant to subdivision 2, 3 or 4. Any disqualification under the provisions of this subdivision shall be recorded in the public records of the officer’s or employee’s governmental or advisory agency. The officer or employee shall disclose his personal interest as required by subsection E of § 2.2-3114 or subsection F of § 2.2-3115 and shall not vote or in any manner act on behalf of his agency in the transaction. The officer or employee shall be prohibited from (i) attending any portion of a closed meeting authorized by the Virginia Freedom of Information Act (§ 2.2-3700 et seq.) when the matter in which he has a personal interest is discussed and (ii) discussing the matter in which he has a personal interest with other governmental officers or employees at any time;

    2. May participate in the transaction if he is a member of a business, profession, occupation, or group of three or more persons the members of which are affected by the transaction, and he complies with the declaration requirements of subsection F of § 2.2-3114 or subsection H of § 2.2-3115;

    [end quote]

    The VA Assembly has spoken on the issue. As I understand it, the Candland Resolution would be more restrictive than this VA Code section. To the extent that it is more restrictive, it would not be enforceable.

  5. Loan Arranger said on 6 Aug 2012 at 11:23 am:
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    Robert L,

    I’m not sure that applies to non profits. Its really more applicable to contracts and business opportunities. Here are a few other sections that do apply:

    5. Accept any money, loan, gift, favor, service, or business or professional opportunity that reasonably tends to influence him in the performance of his official duties. This subdivision shall not apply to any political contribution actually used for political campaign or constituent service purposes and reported as required by Chapter 9.3 (§ 24.2-945 et seq.) of Title 24.2;

    6. Accept any business or professional opportunity when he knows that there is a reasonable likelihood that the opportunity is being afforded him to influence him in the performance of his official duties;

    7. Accept any honoraria for any appearance, speech, or article in which the officer or employee provides expertise or opinions related to the performance of his official duties. The term “honoraria” shall not include any payment for or reimbursement to such person for his actual travel, lodging, or subsistence expenses incurred in connection with such appearance, speech, or article or in the alternative a payment of money or anything of value not in excess of the per diem deduction allowable under § 162 of the Internal Revenue Code, as amended from time to time. The prohibition in this subdivision shall apply only to the Governor, Lieutenant Governor, Attorney General, Governor’s Secretaries, and heads of departments of state government;

    8. Accept a gift from a person who has interests that may be substantially affected by the performance of the officer’s or employee’s official duties under circumstances where the timing and nature of the gift would cause a reasonable person to question the officer’s or employee’s impartiality in the matter affecting the donor.

    Would you consider dinner for a table of eight family members, friends, constituents and staffers a “gift” (when it is paid for with taxpayer money)? Do you think the non profits who offer board positions are doing so for any other reason than to ” …influence him in the performance of his official duties”.

    I think the Code of Virginia is pretty clear about accepting favors to influence Supervisors in the performance of their official duties. Horan found what she needed to do what she was told.

  6. Greg L said on 6 Aug 2012 at 1:11 pm:
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    While the Dillon Rule would probably make it difficult to establish criminal penalties to enforce this, nothing would preclude the Board from essentially setting a policy that governs their own actions. It’s a pretty hopeless cause to think a legislative body would establish criminal penalties that would be enforceable on their own members, and as far as I can tell no one has even tried to make that happen.

    If Candland’s proposal is contrary to Virginia law, then so is every other ethics rule for the board that has ever passed, including Jenkin’s ridiculous amendment. Unless the Board is going to argue that all of these ethics rules is contrary to the law, Horan can’t argue that one specific proposal is against the law if it bears no material difference to all the other rules.

    Since Horan has never raised this novel legal argument before, excuse me for calling BS here.

  7. DJR said on 6 Aug 2012 at 1:54 pm:
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    Don’t fool yourself, Greg L. Dillon’s Rule is deeply ingrained in Virginia’s governance structure.

    Every legislative session, localities send bills to Richmond asking for permission to regulate the height or grass and weeds in their locality. Every legislative session, the General Assembly wastes valuable time hearing and voting on those measures. Once, the GA decided to just let the localities make their own rules on the height to grass. The proposed law was defeated in committee.

    http://scottsurovell.blogspot.com/2012/01/dillon-rule-height-of-grass.html

    My guess is that Horan could easily neuter any penalty that came from ignoring the board ethics rule by citing Dillon’s Rule and taking the matter to court. This would bring the state judicial system into play. Virginia is only one of two states that allow part time, practicing lawyers who are legislators to elect state judges. All the other states allow for direct election f judges, or use merit commissions, etc. So, when the locality gets to court in order to decide a Dillon’s Rule question the judge will have been elected by the very legislators who want to perpetuate the Virginia’s suffocating style of Dillon’s Rule. Moreover, the judge will also have to be re-appointed by that same legislature.

    Some say that Dillon’s Rule is important since it gives states the rights intended under the Constitution. Not really. The founders wanted to limit the central government’s power - not deify the states. They wanted to guarantee freedoms with a set of checks and balances that prevented any one arm of government from getting to powerful.

    How have we done with that in Virginia?

    Let’s see ….

    1. The governor is restricted to one consecutive term so the governor provides no effective check on the power of the General Assembly.

    2. The judiciary is beholden to the General Assembly to get appointed and re-appointed.

    3. The localities can’t exercise even enough free will to set the height of the grass with out going to Nanny Richmond for permission.

    4. There is no provision for citizen referenda or recall so the voter - taxpayers can’t directly intervene.

    The General Assembly in Virginia is vastly over-powered. It looks more like a communist central committee than one branch of government in a state that had a large hand in establishing America’s approach to governance using checks and balances.

  8. Greg L said on 6 Aug 2012 at 2:18 pm:
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    Granted, the Dillon Rule is very restrictive. No question about that.

    I simply fail to see how the ethical reforms proposed by Pete Candland could possibly violate that rule while John Jenkin’s ethical “reforms” (better known as political payback) do not. Each involve the freedom of action for Supervisors and arbitrarily determine the limits of their behavior. One has been defended as legal, the other attacked as illegal, but so far no one has been able to explain why that is.

    Clearly, the only substantive difference between them is that one was designed to attack Supervisor Candland (the one claimed to be legal) and the other was proposed by Candland, which has now quite mysteriously become illegal. The application of the law has become highly situational here.

  9. Chester said on 6 Aug 2012 at 2:18 pm:
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    How would Horan rule if Jenkins proposed a resolution stating the BOCS is immune from any conflict of interest restraint?

    I am sure she’d rule the BOCS could vote on it.

  10. Robert L. Duecaster said on 6 Aug 2012 at 2:37 pm:
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    @ Loan Arranger:

    You said, “I think the Code of Virginia is pretty clear about accepting favors to influence Supervisors in the performance of their official duties.”

    I agree. You make my point. Where the Assembly has spoken, the Counties cannot legislate without specific grant of authority from the Assembly.

    @Greg:

    I only addressed the Candland Resolution. I would also agree that the Jenkins’ resolutions probably would fail the Dillon Rule test also. They should have been ignored, for other legal reasons as well. Had Candland asked for my advice, I would have so advised. He did not.

  11. DJR said on 6 Aug 2012 at 3:11 pm:
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    GregL:

    You are morally, ethically and intellectually right. However, I suspect that you are legally mistaken.

    Mr. Duecaster seems to be on the right track. Any ethical rule beyond those specified by the General Assembly could be struck down by the court. It’s just that nobody has decided to take that tact, I guess.

  12. Chester said on 6 Aug 2012 at 3:39 pm:
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    Re: “Any ethical rule beyond those specified by the General Assembly could be struck down by the court.”

    Bullshit

    If it appears to be a conflict or even a tad thereof, a respective government official should voluntarily recuse themselves, resolution or not. The fact Candland needs to go through this charade simply to codify such a common sense dictate clearly shows how F**KED UP the PWC BOCS is.

    If the Candland resolution goes down the drain due to Stewart forcing Horan to give up her parking space so be it, but this simple common sense measure that even applies to 4-H club leaders et al needs to be enacted.

    Up next, the Manassas City Council.

  13. DJR said on 7 Aug 2012 at 9:26 am:
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    Chester:

    Re: “Any ethical rule beyond those specified by the General Assembly could be struck down by the court.”

    Bullshit

    Well, I guess you have your legal opinion and County Attorney Angela Horan has hers. I don’t know which of you have the better experience as lawyers so I won’t comment on who might be right or wrong on this matter of interpreting Virginia law. I would prefer that you are right. However, I am not sure that is the case.

    “If it appears to be a conflict or even a tad thereof, a respective government official should voluntarily recuse themselves, resolution or not.”.

    I think that’s absolutely right. However, in Virginia, such things rarely happen. For example, a practicing attorney who is also a member of the General Assembly will probably argue cases in front of Virginia’s judges. Do you think that a practicing attorney who is also a General Assembly member should vote on the appointment of the very judges who will hear that attorney’s cases in court? Is that a potential conflict of interest? Of course it is. Yet our General Assembly members who are practicing attorneys do not recuse themselves from voting on the appointment of the state judiciary. Instead, they happily vote for or against the very judges who will ultimately hear their cases.

    Virginia is only one of two states where this is allowed. There are many good reasons why the other 48 states either have direct election of judges or use a merit committee to decide state judicial appointments. The other 48 states understand that having a few practicing attorneys directly elect state judges where they will argue their cases is a clear conflict of interest. Virginia and South Carolina disagree. Where do you stand on this question?

  14. Robert L. Duecaster said on 7 Aug 2012 at 9:35 am:
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    The smart way around this situation would be for Candland to revise his proposed resolution. Instead of requiring recusal from a vote, the resolution should require full disclosure by each member of any personal interest they (or their family) have in each issue being voted on.

    Failure to disclose a personal interest would call into question the legitimacy of any vote where it was later shown that a BOCS member had such an interest.

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