Federal appeals court rules on council meeting prayers

The U.S. 4th Circuit Court of Appeals has ruled that a South Carolina town that opened council meetings with prayers that regularly mentioned Jesus Christ violated the 1st Amendment’s establishment clause, which prohibits governments from advocating or establishing a specific religion or faith.

For local governments in Virginia the opinion is instructive and sets the law for the five-state 4th Circuit, of which Virginia is a part. It does not outlaw opening prayers at the meetings of town councils, city councils or boards of supervisors. It does require that those prayers not be used to promote one religious view over another.

The case that prompted the ruling arose in the town of Great Falls, S.C., population 2,150. The council’s practice was to begin its meetings with a prayer that frequently included “Jesus Christ” or “In Christ’s name.” The plaintiff, a member of an earth-based Pagan religion called Wicca, whose practitioners often call themselves witches, participated regularly in council meetings as an interested citizen. Darla Kaye Wynne said she felt uncomfortable with having a Christian prayer to start the meetings.

Wynne’s relationship with the council and other residents began to deteriorate. The situation led to a council meeting with approximately 100 Christians attending to support the prayers. Wynne sued the town to have prayers that invoke Jesus Christ stopped. Wynne said that she didn’t want the council “punished or anything else like that.” She only sought to have the prayers made more generic.

The case made its way to the appeals court after a federal district court issued the following ruling in August 2003:

“IT IS THEREFORE ORDERED that the Clerk of Court shall enter judgment in favor of Plaintiff, permanently enjoining the Town of Great Falls, its Mayor and members of Town Council, and any officers, agents, servants, and employees of the Town, and those persons in active concert or participation with them who receive actual notice of this injunction, from invoking the name of a specific deity associated with any one specific faith or belief in prayers given at Town Council meetings and requiring that the Mayor and members of Town Council advise any other individual who is permitted to give a prayer at Town Council meetings of this court’s order.

“The United States Marshal is DIRECTED to personally serve a copy of this final judgment and injunction on the Town of Great Falls (to its Clerk, Julie Blackwell), Mayor Henry Clayton Starnes, and all Town Council members, including John Broom, Henry Stevenson, Barbara Hilton, Raymond Baker, Mike Brunson and Glen Ross.”

The 4th Circuit decision does not mean that all prayers to begin council or board meetings are prohibited. The court relied on a 1983 Supreme Court opinion that approved prayers by a legislative body and relied on a 1989 case that refined the 1983 opinion by requiring that such official prayers not advance a particular religion. The court prohibited Great Falls council from using prayers that “invoke the name of a specific deity associated with any one specific faith....” The court reiterated that opening prayers, as a part of the history of the United States and as approved by the Supreme Court, remain allowed, but that a council may not use the prayers to advance a particular religious view.

The 4th Circuit stated:

“Public officials’ brief invocations of the Almighty before engaging in public business have always, as the Marsh Court so carefully explained, been part of our Nation’s history. The Town Council of Great Falls remains free to engage in such invocations prior to Council meetings. The opportunity to do so may provide a source of strength to believers, and a time of quiet reflection for all. This opportunity does not, however, provide the Town Council, or any other legislative body, license to advance its own religious views in preference to all others, as the Town Council did here. The First Amendment bars such official preference for one religion, and corresponding official discrimination against all others.”

The 4th Circuit also has before it a case involving the invocation at a board of supervisors meetings. At issue in that case is whether a locality may prohibit a Wiccan priestess from giving the invocation where the locality has a practice of rotating the opening prayers among churches and synagogues. This case arises from Chesterfield County, and was decided in 2003 by a federal district court. The district court prohibited the county from denying a Wiccan priestess the right to offer the invocation. The county is awaiting a ruling on its appeal from the 4th Circuit. contents

Group life premiums should be set aside

Local governments and other political subdivisions should put aside money to pay for group life insurance for their employees, according to information presented at a July 20 meeting of a legislative subcommittee studying the Virginia Retirement System.

A premium holiday for group life insurance has been in effect since March 2002. This means that the state and localities have made no contributions to the program since that time.

VRS Deputy Director Bo Harris reminded the subcommittee that the group life insurance program will have to be funded at some time. To avoid future “sticker shock,” he said VRS is urging localities to put aside the amount that would have been charged for the program (1.14 percent of payroll) had premiums been charged this biennium.

Harris also reported on the financial status of the VRS fund, which has improved in light of the upturn in the stock market, but still lags the performance that had been forecast by the VRS actuary. The actuary assumed an investment return rate of 8 percent. The return for the one-year period is 31.1 percent. The three-year return rate, however, is 4.9 percent and the five-year return rate is 4.8 percent.

The assumed investment return rate is an important factor used in determining what the contribution rate for the VRS system should be. All other factors being equal, a lower than anticipated return rate would mean that the fund’s value would be lower than forecast. A retirement fund gets money from two sources’– contributions and investments. If investments are down, contributions have to go up over the long run. The vast majority of local governments in Virginia participate in VRS.

Market value of the fund’s assets as of March 31, 2004, was $40.1 billion. The fund’s value dipped below $30 billion in 2001.

Harris also reviewed the funding of a defined benefits retirement system and the funding status of the various retirement programs administered by VRS.

In addition, Harris reviewed the benefits accorded public safety officers under the state Line of Duty Act.

For officers incurring a disability from a cause compensable under the Workers’’Compensation Act but not covered by the Virginia Sickness and Disability Program (available only to state employees), these benefits include:

• enhanced disability retirement benefit,
• unreduced life insurance until age 65,
• refund of contributions and interest, and
• health insurance at state expense for dependents (administered by the state Department of Human Resource Management) if in a public safety position.

Officers covered by VSDP receive an enhanced short-term disability and are not refunded contributions and interests.

In the event of an officer’s death from a cause compensable under the Workers’ Compensation Act, the officer’s survivors are eligible for these benefits:

• enhanced retirement benefit for survivor,
• refund of contributions and interest,
• lump sum payment to survivor if in a public safety position (Administered by the state Department of Accounts),
• health insurance at state expense for dependents (administered by DHRM) if in a public safety position, and
• additional insurance if resulting from a felonious assault or an accident

Benefits under the Line of Duty Act currently are paid by the state, even if a local government employs the officer involved. The study of the Line of Duty Act resulted from the introduction of SB 284 by Sen. William C. Wampler Jr. in the 2004 session, which would have made Line of Duty Act benefits retroactive to 1972, and that would have required localities to pay the benefits for local officers.

The VRS study was commissioned by HJR 34, enacted during the 2004 session. The resolution directs the study committee to:

• examine the current benefit structure of VRS;
• review matters relating to funding (such as amortization schedules, level and adequacy of funded ratios, and blending of contribution rates between and among retirement systems;
• make recommendations to improve the Virginia Retirement System; and
• examine existing Virginia benefits and those provided by other states and the federal government to public safety officers who suffer severe and permanent disabilities as a result of catastrophic personal injuries incurred in the line of duty.

Harris’ presentation was made to the Joint Subcommittee Studying the Virginia Retirement System and Benefits of Public Safety Officers Injured in the Line of Duty.

The subcommittee elected Del. Lacey E. Putney chair and Sen. Walter A. Stosch vice chair. Other committee members include Sens. Kenneth W. Stolle, Roscoe Reynolds and Wampler,’and Dels. Thelma Drake; R. Steven Landes; John A. Cosgrove; Watkins M. Abbitt Jr. and Johnny S. Joannou.

The committee is scheduled to finish its work by Nov. 30. It is authorized to hold three additional meetings.

Copies of handouts distributed at the committee meeting, as well as other background information, is available at the committee’s Web site at http://dls.state.va.us/VRS.HTM. contents

VEA, VSBA criticize local funding of schools

Representatives of the Virginia Education Association and the Virginia School Boards Association told the state Board of Education that local governments have cut their funding of K-12 education.

VEA President Jean Bankos described how local governments funded education this year in light of increased state appropriations as a “travesty.” The 2004 General Assembly voted to begin funding higher standards for education that resulted in increased state revenues flowing to local governments for fiscal year 2004-2005. In short, the higher standards mean that the state is funding more instructional positions.

For many years most local governments have voluntarily covered the cost of these positions to ensure that local school divisions are adequately staffed. In addition, localities have funded salary increases for school employees even though the state has not contributed to those raises since 2000. As a result, localities in FY03 spent $2.9 billion more for education than required by the state. With the receipt of the state money for these positions some localities chose to use some local money previously targeted for education for other local priorities, including tax relief.

VEA and VSBA are claiming that local governments have reduced local support for education in light of the increased state revenues. They want the state to prohibit localities from cutting back in any way on local education funding.

While Bankos commended the state for increasing funding, she offered no kudos to localities for their long-standing support for education.

Localities have been forced to pay an extraordinary share of education expenses for several reasons:

• The SOQ, which determine the level of state funding for education, was not revised from 1988 until this past session, despite the wholesale revisions of the Standards of Learning and Standards of Accreditation during this time period. As a result, the funding standards in the SOQ are woefully inadequate.
• There was no state funding for salary increases for teachers since 2000.
• Problems exist with the methodology for computing the cost of the SOQ that result in artificially low estimates.
• Localities have supported education at such a high level out of concern that schools receive enough funding to be accredited under the Standards of Accreditation, and that students obtain enough credits to graduate. The high level of support, however, has forced local governments to increase taxes and fees and defer other important priorities.

VML and the Virginia Association of Counties are conducting a survey of localities with school divisions to determine the degree to which localities reduced local support for education in light of increased state support, whether local tax relief was granted as a result, and the salary increases funded for school employees in the upcoming year. Survey responses are due back to VML by July 30; localities are urged to complete and return the survey as soon as possible. contents

Water supply committee reviews new regulations, state water plan outline

An advisory committee representing business, agriculture, government and conservation interests reviewed proposed revisions to Virginia’s water supply planning regulations. The amendments to Chapter 780, Local and Regional Water Supply Planning, of the Virginia Administrative Code were recommended by a steering committee that is part of the Department of Environmental Quality’s Water Policy Technical Advisory Committee.

The advisory committee met with DEQ staff on July 23 to review the steering committee’s proposals for Phase 1 of a three-phase planning process. Phase I would include an initial determination of future water needs and possible water sources. Local governments would develop local or regional water supply plans and hold public hearings. The State Water Control Board would review the plans to determine compliance with the regulations, and would then certify the Phase 1 Plans. Some questions remain as to what “compliance” or state “certification” of the plans will mean, and what role the regional authorities will have. A consistent concern raised by committee members is ensuring that comprehensive and timely comment from all affected state agencies are received early in the process.

In addition to reviewing the steering committee’s proposals for Phase 1, the technical advisory committee heard a report from DEQ staff on components of a State Water Plan. A three-volume plan was proposed. Volume 1 would include background data and policy information. Volume 2 would address ongoing water supply issues such as ground water management, drought monitoring and response, and reservoir re-licensing. Volume 3 would be made up of river basin summaries. Still to be clarified is how conflicts among water users would be resolved.

The steering committee will meet again on Aug. 23 to continue working on the regulations. DEQ is under an October deadline to have a state plan and accompanying regulations drafted. DEQ has been asked to present its drafts

DEQ has worked with several such advisory committees since the 2002 General Assembly directed the State Water Commission to define the role the state should play in long-term water supply planning and allocation. The 2003 General Assembly required the State Water Control Board to craft “a comprehensive water supply planning process for the development of local, regional and state water supply plans.” The SWCB was to complete draft regulations for water supply planning by December 2003. The advisory committee, however, was unable to reach consensus on controversial legal, technical and management issues by that date, so the 2004 General Assembly delayed the effective date for any new regulations until after July 2005.

The secretary of natural resources, the State Water Control Board and the legislature will review any draft regulations developed by the advisory committee. The regulations are also subject to the Administrative Process Act, which requires public notice and comment. contents

State experiences FY04 surplus

Preliminary figures show that Virginia ended fiscal year 2004 with $323.8 million more in revenues than estimated. This amount does not include the lottery and other transfers.

Gov. Mark R. Warner announced that required deductions and reserves, including deposits to the Revenue Stabilization Fund and the Water Quality Improvement Fund, as well as payments for Hurricane Isabel and other disaster relief, would take $310.7 million of the surplus. A net surplus of $13.1 million would remain after the required deductions.

Warner will brief the House Appropriations, House Finance, and Senate Finance Committees on the FY04 year-end financial results on Aug. 23 in House Room D of the General Assembly Building. contents

VDOT offering Transportation Enhancement Program workshops, funding

The Virginia Department of Transportation is offering a series of workshops for local governments and organizations seeking funding to help pay for projects such as bike trails, environmental mitigation, historic preservation, preservation of abandoned railway corridors, acquisition of scenic or historic easements or sites, scenic or historic highways, control and removal of outdoor advertising, and landscaping. Funds are part of the federal Transportation Enhancement Program and are allocated in Virginia by the Commonwealth Transportation Board.

The CTB recently awarded nearly $15 million in federal money for 107 new and ongoing projects across the state. Projects included sidewalks, bike trails, landscaping and lighting, bike lockers, pedestrian trails and a riverfront boardwalk.

Applications for the next round of funding are due Nov. 1.

VDOT has scheduled workshops for applicants in July and August. Workshops will be held:

• July 29 at Smyth-Bland Regional Library, Marion
• July 30 at the VDOT Salem District Office, Salem
• Aug. 3 at the VDOT Richmond Office, Colonial Heights
• Aug. 5 at the VDOT Harrisonburg Residency Office, Harrisonburg
• Aug. 10 at the VDOT Fredericksburg District Office, Fredericksburg
• Aug. 12 at the VDOT Hampton Roads District Office, Suffolk.

For more information, call 1-800-444-7832 or visit the Web site at www.virginiadot.org/projects/pr-enhance-7-15-04.asp. contents

VML Annual Conference line-up takes shape

Washington D.C. Mayor Anthony Williams and political commentator Mark Shields will give keynote addresses at the Oct. 4 opening session of the 99th annual VML conference. The conference will be held Oct. 3-5 at the Hilton Alexandria Mark Center, 5000 Seminary Road, in Alexandria.

Williams has served as mayor of Washington since 1999, and has helped spark a renaissance in the city. He is credited with restoring fiscal accountability and balancing the budget.

Shields can be seen every Saturday on CNN’s The Capital Gang alongside Robert Novak, Al Hunt, Kate O’Beirne and Margaret Carlson. Since 1979 Shields has written a political column, which is now nationally distributed, for The Washington Post.

The opening day of the conference, Sunday, Oct.3, will include a golf tournament, the final meeting of the Legislative Committee, registration, the opening of the exhibit hall, and an evening reception.

Monday’s highlights will include the opening session at which Williams and Shields will speak, and an assortment of workshops in the afternoon, including sessions on topics such as strategies for dealing with gangs, economic development incentives, quality risk management, use of geographic information system (GIS) Web sites, parliamentary procedures, traffic calming, rental inspection programs, and town/county relations. The Monday evening Host City Night will take place in Old Town Alexandria, and will include dining and music at the Torpedo Factory, the Chart House Restaurant, and along the waterfront.

Tuesday morning’s highlights will include the annual prayer breakfast, a general session (speaker to be announced), and the annual meetings of the Urban, City and Town sections. In the afternoon, workshops on brownfields, university/community relations, and telecommunications tax reform will be held concurrently with a series of round tables. The annual business meeting, including the election of officers and the adoption of the 2005 legislative program, will round out the afternoon events. Tuesday night’s annual banquet will include the presentation of the league’s Achievement Awards, remarks by the incoming president, and entertainment by the Capitol Steps.

Additional information on the conference can be found here. The deadline for room reservations is Aug.13. Hotel reservation information also is available on the Web. contents

Newly elected officials meet in Charlottesville

More than 130 council members, mayors and managers met in Charlottesville July 14-16 at the 2004 Conference for Newly Elected Municipal Officials. Most of the attendees had won their first election in May 2004, but some attendees were incumbent officeholders or managers.

Participants represented cities and towns ranging in size from the Town of Pamplin (Pop. 199) to the City of Virginia Beach (Pop. 425,250).

Sessions covered issues including: What I’ve learned in the First Term, How to Make the Most of Meetings, Council-Manager Relations, Managing a Town Without a Manager, Land Use, Public Officials Liability, Freedom of Information, Conflicts of Interests, Public Safety, Budgeting and Team Building.

Sean O’Brien, deputy director of the Sorensen Institute for Political Leadership, gave a talk on ethics in public service at the conference’s opening event.

Conference participants received a copy of the newly released Handbook for Virginia Mayors and Council Members. Copies of the handbook were mailed to all elected municipal officials this week.

The league and the University of Virginia’s Weldon Cooper Center for Public Service sponsor the conference. contents

Congress adopts temporary transportation extension

Before adjourning for its summer recess last week, Congress passed another extension of the expiring surface transportation law, TEA-21. Senate negotiators rejected a House-proposed $284 billion compromise, some $17 billion below the level the Senate was seeking through a revised proposal. While conference committee negotiators agreed to continue discussions over the recess, chances are fading for a resolution this session. Congress will reconvene after Labor Day, but adjourn prior to the fall elections.

States continue to await the adoption of a national six-year surface transportation act. Prior to the Fourth of July recess, Senate conferees proposed spending $318 billion, the reauthorization level passed by the Senate. House Republican leaders had proposed a $275 billion reauthorization level, an amount more in line with the Bush administration’s preferred $256 billion plan. contents

Proposed Regulation

Crime Prevention Specialists. The Criminal Justice Services Board has proposed regulations that spell out the eligibility requirements for crime prevention specialists. The intent of the amended language is to expand the program to allow the chief executive of any local, state or federal government agency to designate staff who serve in a law-enforcement crime prevention or criminal justice capacity to become certified as a crime prevention specialists. The current law restricts certification to staff from local and state law-enforcement agencies. Proposed amendments update training topics to include current issues such as homeland security, and expand requirements to require addressing four topics on the list in the regulation rather than two topics. Training requirements for re-certification are expanded from one to two topics on the list noted in the regulation. All nonlaw-enforcement applicants will also be required to obtain permission from the law-enforcement agency having jurisdiction where the crime prevention specialist shall serve, and a de-certification section has been added in cases of misrepresentation or conviction of a crime. For additional information, contact Tami Wyrick, Department of Criminal Justice Services, at 804/786-5664 or e-mail her at twyrick@dcjs.state.va.us. contents

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