Del. Pollard’s Column
The Governor as Business Manager of Virginia
Rewritten By Delegate Albert C. Pollard, Jr.
June 10, 2008 - In 1942, Blake Tyler Newton – not yet a State Senator from our region – wrote House Document 12, The Governor of Virginia as Business Manager. This publication, a copy of which I recently found amongst some old books, explores the proper balance of power between the branches of government in order to protect democracy and yet still have functioning government.
I rearranged and condensed some of his writing for this column, but his musings are largely intact. What is fascinating is that many of the questions he asks, and observations he makes, are as applicable today as they were 60 years ago.
As a final note, the General Assembly convened only once every two years until the late 1960’s.
There are many Virginians who view government in the light of a civilization vastly more complex than the civilization of Patrick Henry’s day – a civilization becoming more and more complex as modern conditions affect almost lighteninglike [sic] changes in State life.
Apparently, delegation of legislative authority [to the Executive Branch] has come to stay. For the General Assembly in recess to enact specific legislation to meet specific conditions over a period of two years is an obvious impossibility. Ours is not a static community life. It registers swift, unforeseen changes.
The powers of the Governor of Virginia have developed to the point where his position is somewhat comparable to that of the president of a corporation, directing with decision, dispatch and finality the affairs of the stockholders for whom he acts.
This is in sharp contradistinction to the position of limited authority occupied by Patrick Henry under the Constitution of 1776, an instrument born of tyranny and the fear of subsequent despots.
The metamorphosis of the gubernatorial office had its inception in the Constitution of 1850, under which the people were granted the right to elect their own Governor. Twenty years later, the Underwood Constitution invested the Governor with the power of limited veto. Under the Constitution of 1902, the power of veto was extended to the return of bills with suggested amendments and to the [line item veto in the budget]. Governor Westmoreland Davis then stepped into the political picture with the idea of an executive budget, purchasing commission, and a revitalized penal commission.
Always, the General Assembly may convene itself to curb a tyrannical or subversive Governor and to reaffirm in its actions the principals of democratic Government. Popular election and judicial review of administrative acts are safeguards to any arbitrary action. Therefore, concentration of authority is not without thorough and readily invoked safeguards.
The Governor must be in reality, as well as name, the chief executive. To hamper him in the name of democracy is to make his official designation a misnomer and to make a mockery of democracy.
Cell Phones, Cuba and Virginia’s Regulatory Overstep.
May 22, 2008 - On March 28th of this year, in Communist Cuba, there was recently a great step forward by Raul Castro as he pushed a reformist agenda. That step was the legalization of cell phones for the general populace. While they will still be expensive – and surely monitored by the government – Cuba’s symbol of the loosening of laws around cell phones was regarded as an important step toward reform.
Ironically, one month later, Virginia took a small, but significant, step backward.
On April 25th, the Virginia Department of Agriculture and Consumer Services (VDACS) adopted a truly onerous regulation in the Commonwealth. Such regulation (2VAC5-206) requires virtually anyone who has a sheep or goat that has been “bartered, leased, traded, loaned, sold, exhibited” in the Commonwealth to keep records of that transaction for five years. Failure to do so could result in a $2,500 fine or one year in jail.
What? A year in jail because I sold a goat and didn’t keep records of it?
What is worse is that in a legislative oversight meeting in December, the State Veterinarian professed willingness to pursue prosecution of violators to the full extent of the law.
It seems that in its zeal to eradicate a disease called “scrapie”, the Department of Agriculture has gone completely overboard. Scrapie has been linked to Mad Cow disease when ground-up parts of dead, infected sheep are put in cattle feed in England.
Thus in 2001, the federal Department of Agriculture required that all states have a scrapie eradication program in place. I guess the idea of outlawing that dead sheep be fed to live cows was too obvious of a solution for the Federalas.
None of this is to say scrapie should be ignored. But, Virginia’s answer to the federal request is a considerable overstep from what needs to be done and vastly more restrictive than other states. Indeed, according to VDACS own records there have been zero cases in goats and only 3 cases in sheep that have ever been recorded in Virginia.
Thankfully, the high commodity prices have helped much of agriculture in the Commonwealth. But before that, small farmers’, selling locally, has been one of the few bright spots in Virginia’s agricultural landscape. Sadly, the regulatory community is slow to realize this and seems set upon a one-size-fits-all model of agriculture.
I am hopeful that the legislature will overturn these ridiculous rules when it meets in January, but in the meantime citizen help is needed. E-mail or call the governor and ask him to help delay this ridiculous government infringement that creates negligible private gain. Otherwise, someone might be coming after your cell phone next.
A message can be left for Governor Kaine at (804) 786-2211. To e-mail him, go to www.virginia.gov and click on the “Contact the Governor” link in the upper right. For more information on this issue, please visit www.albertpollard.com.
California Homeschooling
April 7, 2008 - Rarely, if ever, do I get contacted about appellate court decisions from other states, but there has recently been a court decision from California that merits comments.
First let me say that California has brought us many great things and a few whoppers of bad ideas. “The Land of Fruits and Nuts” is the phrase one friend of mine described the politics as well as the agricultural commodities.
Nowhere has the phrase been more true than in a recent California appellate court ruling stating that in order to homeschool their child a parent must be a state credentialed teacher. The ruling is not being enforced and will likely be appealed to the California Supreme court, but it is still worth of examination.
The first thing to remember is that courts interpret the law – and as long as those laws are constitutional – tend to uphold those laws no matter how poorly written, nonsensical or far reaching the impact may be.
As background, California allows homeschooling but, unlike Virginia, parents must file paperwork with the state establishing themselves as small private schools. Parents must further either hire state credentialed tutors or enroll their children in independent study programs run by a private or public school despite the fact the children are being taught at home.
You see, unlike in about 30 other states, homeschooling is not specifically mentioned in California code. Therein lies the basis for this nonsensical ruling.
Stemming from one Los Angeles County case, the appellate court ruled that the limited interface a homeschooled child has had with the credentialed teachers means they are not actually being taught by them. Ergo, if a child is homeschooled the parent must be credentialed.
I certainly don’t know California law, but it could be that this is the proper interpretation of a bad law. Heretofore, the “California system” has been working because the state of California has been turning a blind eye to the law and letting the 160,000 plus homeschooled children be homeschooled in a manner that is much more consistent with, say, Virginia law.
Indeed, according to the Los Angeles times “Homeschoolers and government officials have largely accepted this murky arrangement. ‘This works so well, I don’t see any reason to change it,’ said J. Michael Smith, president of the Virginia-based Home School Legal Defense Assn.”
Clearly the court ruling means this “murky arrangement” is going to be changing soon – hopefully in favor of homeschoolers. While homeschoolers in Virginia must evaluate their children annually and file with the local school division, they are not considered a school under Virginia law and do not have to work with a certified teacher.
Homeschooling has exploded in popularity over the past generation. While exact numbers are hard to come by, it is estimated the number of homeschooled children in the nation has doubled from 600,000 to 1.2 million in the past 12 years. A perusal of the web shows that Homeschoolers are not a monolithic group with a religious or ideological agenda. Indeed, there are Virginia groups ranging from the most conservative to “heathen homeschoolers” in Northern Virginia.
I can’t speak for everyone, but what I believe that homeschoolers expect is a clear and rational policy from their state government which allows them a choice without undo government interference. Right now Virginia has the policy – and California doesn’t.
For links to articles and resources about this article, please visit www.albertpollard.com
Zeno’s Paradox
Mar. 17, 2008 - According to one Greek philosopher, infinity can be described as a person who always walks halfway to a destination and never reaches his goal. By always cutting the distance between them and the wall, the distance is always reduced but never eliminated.
Zeno’s paradox, as it is called, is a pretty good description of the 2008 General Assembly session. Last Thursday we finished the most important business of the year – our two year, 81 billion dollar budget. The budget finished, we adjourned sine die (“without day” or “final day”).
However, we still have not finished with all our business; there is major bond legislation left. The budget itself is a mixed blessing. The Commonwealth’s finances have gotten hit as hard as citizens’ recently, with over 2 billion needing to be cut from the Governor’s introduced budget.
Cutting a budget is never an easy task, no matter how large. Half the state budget is non-general funds, meaning they consist of money which is dedicated to its source as it is spent and therefore off-limits to cutting. College tuition, tolls and medical billing at a teaching hospital are all examples of these non-general fund line items.
And, of the remaining general fund budget, approximately half the remaining money serves as direct aide to localities which, if cut, can adversely affect the property tax.
All this is to say that there were no easy choices in last week’s budget vote. I ended up supporting the budget because there was an item of major local importance, regional jail funding, which had been restored from the Governor’s introduced budget.
Had this funding been cut, it would have meant extra pennies on the tax rate because the Commonwealth would have been failing its obligation to help localities house prisoners. Statewide, restoration of this item cost 2.5 million a year.
That was the good news. The more mixed part of the blessing was that the budget cut back local funds for schools from the Governor’s introduced budget. This is not a cut to an existing budget, but instead is a decrease of money that was expected. In another couple of weeks or so, I will have the website up and running so that the spreadsheets can be viewed by all.
Other highlights include: $150,000 for prenatal and obstetrics pilot projects in the Northern Neck and Emporia; $20 million to help implement best management practices for Bay cleanup; $34.4 million for 600 mental retardation waiver slots to help the mentally ill; $4.5 million to help initiate a “wounded warrior” program for veterans with post-traumatic stress syndrome; a 3% cap on tuition for most in-state students; and, $1.7 million to increase foster and adoptive family recruitment.
Despite having finished all this business and adjourning at about 11:15 on Thursday night, we still only walked halfway to the wall. The one major piece of unfinished business is passage of a bond bill for capital projects.
The Senate wants to issue $2.6 billion in bonds, but the House wants a smaller $1.8 billion. The money would be used to help construct college buildings, medical facilities and environmental projects. Further, it would help jump start a sluggish economy.
After that, our regular business should be done – we will have walked half way to the wall again. But, after bonds comes transportation.
That is a different story altogether.
Teduim and the Legislative Process
Mar. 10, 2008 - Tedium. I am sitting on the floor of the House of Delegates on what is supposed to be our last day of the session and Tedium is the word of the day. No matter how much one enjoys public service, no matter how large the matters at hand, there is no other way to describe the final days of a legislative session than tedium.
Stop. Start. Suspend action. There is a lot of hurry and wait. House bills are in the Senate, Senate Bills are in the house. Amendments have been rejected by the other body and put into conference to work out the difference. But with all the grind and crunch of gears, differences do get worked out there and democracy moves forward.
A good example of democracy in action is the action taken to restrict payday lending. The bill was a hard fought victory by opponents of the industry. Of course, from a tactical standpoint, the industry had an easier lobbying job. Not passing a bill means there would continue to be no significant state regulation.
While the final comprise doesn’t suit any party, it is a large step forward. It includes a state database of borrowers to prevent persons from getting more than one loan at a time and limits five loans in six months. It also gives more time – from two weeks to four weeks – to pay off one of these smaller than $500 loans.
While interest is capped at 36%, pricey fees ensure that actual cost of money is higher than that.
However, we have reached an impasse with the Senate over the issue of judgeships and the budget and thus a slow process becomes slower. The budget certainly won’t be ready for us when we leave this evening and it probably won’t be for a week. The differences between the House and Senate and budgets seemed small several days ago, but then the gap widened.
In a time of budget cuts, small differences can become even more acute. And, locally, there is a lot at stake. Consolidation of smaller social services units, regional jail funding issues, school funding formulas and aid to localities are just a few of the issues.
Of course, the future of the budget is now down to a few negotiators on both sides and, if they get it wrong, there can be significant consequences. One seemingly small issue from a statewide perspective, jail funding for example, means many pennies would have a lot of impact on a county tax rate.
Thus, the tedium is spiced with anxiety. While the process lurches towards its conclusion could be easy to forget that real lives are affected and real pocketbooks impacted.
Thus, I continue to try to shore up the local position with those who hold our fate. And, yet, as I sit we have recessed yet again… awaiting action from the Senate.
And, thus, Democracy moves forward – albeit slowly.
(As a footnote, the House finally adjourned at 10:30 Saturday night, the budget was not resolved, nor was the issue of judges. We spent from about 3PM to adjournment waiting for the Senate – going in every hour or so and then standing at ease. We resume work this Tuesday at 4PM.)
