The Northern Virginia Daily's Political Depot

A service for our readers outside the Northern Shenandoah Valley... a sampling of The Daily's political coverage, plus unofficial, 'reporter's notebook' stuff. And occasional dry humor...

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Location: Strasburg, Virginia

Sunday, February 19, 2006

State aid to good causes may not be entirely legal; A1

By Garren Shipley
(Daily Staff Writer)

Legislators like to give state funds to good causes. It’s been that way for years.

But is it legal? It’s a matter getting some discussion in political circles, and the answer isn’t black and white.

Aid to non-government entities has a long history in Virginia.

“We’ve been doing [grants to] non-state agencies for a long time,” said Del. Beverly Sherwood, R-Winchester. The current state budget spends $34.1 million on non-state agencies in fiscal 2005 and 2006.

Former Gov. Mark R. Warner’s proposed final budget includes some $19.8 million over the next two years for museums, theaters and memorials.

Senators and delegates have proposed more than 200 additions to that total, which would spend another $135.7 million.

Budget writers in both the House of Delegates and the Senate are winnowing their way through those requests, in preparation for the release of each chamber’s version of the budget this weekend.

But the question of legality — which started as an offhand question from some in the state’s political chattering classes — apparently doesn’t have a solid answer.

In question is Article IV, section 16, of the Virginia Constitution.

It reads in part: “The General Assembly shall not make any appropriation of public funds … to 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.”

It goes on to make an exception for “nonsectarian institutions for the reform of youthful criminals” and gives legislators the power to let local governments provide grants to charities of all stripes.

Bloggers first raised the question earlier this month, as amendments to the budget began to move forward.

The discussion moved into the realm of elected officials when the legality of grants to some groups was questioned on the Web log of the legislature’s bipartisan Cost Cutting Caucus, a group seeking to reduce the cost of state government through reform.

Del. Chris Saxman, R-Staunton, the caucus chairman, said he was surprised to hear the question asked.

“No one has challenged it before,” he said. “It’s just never brought up,” but not in the sense that longtime members ask newcomers to keep quiet.

Members literally don’t talk about it. “I’ve never heard it discussed,” he said.

Freshman Del. Todd Gilbert, R-Woodstock, said earlier this month that he wasn’t sure about the law, and was asking Attorney General Bob McDonnell’s office for clarification.

Sherwood said it was her non-lawyer understanding that the grants were OK, depending on where they were going.

“As long as the money is going to an entity that is for public use, it is not unconstitutional to do so,” she said. “There is no prohibition.”

A spokesman for Gov. Tim Kaine said Friday that the matter is a “legislative prerogative” and the governor’s focus is on transportation this session, not non-state agencies.

Courts in the commonwealth have apparently never taken up the matter directly, although they have bumped into it on occasion, according to McDonnell’s office.

While the office declined to provide an official opinion — constitutional officers from local and state government are among the few who can request such a ruling — it did point to a 1984 opinion on whether a state-created corporation would fall under the section.

“This constitutional prohibition may be avoided if the organization to which the appropriation is made is not ‘charitable’ or, if charitable, is ‘owned or controlled by the Commonwealth,’” wrote then-Attorney General Gerald Baliles. He would go on to be governor.

But what exactly does charitable mean? That’s something that the state’s 1971 constitution doesn’t answer, but the Supreme Court of Virginia has delved into the matter.

In the 1964 case City of Richmond v. United Givers Fund, the court took the word to mean, at least for purposes of taxation, “liberal, in benefactions to the poor; beneficent.”

But the same court opinion also uses another definition.

“The same case defines the word somewhat more broadly as being limited to an institution which is ‘organized and conducted to perform some service of public good or welfare,’” wrote Baliles, citing the case.

Constitutional issues aside, non-state agencies are a good buy for the public’s dollar, Sherwood said.

“Our non-state agencies are certainly much more efficient in their use of the money,” she said.
Further, they’re vital to some areas.

“In the more rural areas of the state it’s a necessity. Not everyone in my district can get to a museum in Richmond or the Tidewater,” she said. “For the valley, these non-state agency requests are very important.”