eNews April 24, 2020
Friday, April 24, 2020 - 05:52pm
In this issue:
- Games of Skill: The strange tale of a bill to simultaneously ban and authorize gambling (continued from last week)
- Peer-to-Peer Vehicle Rentals: Legislature approves Northam
- Vulnerable Road Users: Amendments approved
- Electric Personal Delivery Devices: Amendments approved
- Omnibus transportation legislation: Passed with amendment to cap distribution to localities
- Hampton Roads Transit Legislation: Passed with amendment directing distributions
- Clean Energy and Community Flood Preparedness Act: Passed with amendments intact
- Solar Revenue Sharing: Passed as amended
- Shared solar programs: Passed with amendment to expand low-income service requirements
- Community Flood Preparedness Fund: Passed with amendments to broaden qualifying flood types
- Chesapeake Bay Preservation Area, mature trees: Passed with amendments to broaden criteria
- Danville council approves resolution urging businesses to implement social distancing
- Updates from this week’s Virginia Department of Health (VDH) partner call
Elections
May 5 elections now postponed to May 19
Perhaps the most contested budget amendment was the governor’s proposal to postpone May’s local elections (Amendment #36, HB29). The amendment’s supporters in the House of Delegates needed three separate votes to pass this major policy change. The Senate, however, rejected the amendment by a motion to carry the amendment over for the day. The motion passed by an unrecorded voice vote.
Following the General Assembly’s decision not to pass the Governor’s Amendment 36 in HB29 Wednesday (which would have postponed local elections until November), the Governor announced today that local May elections will now be postponed by two weeks, from May 5 to May 19.
Click here to view the Governor’s Executive Order Fifty-Nine: Postponing May 5, 2020 General and Special Elections to May 19, 2020 Due to Novel Coronabirus (COVID-19.)
The Department of Elections has released a detailed information packet available here.
Key points include the following:
- The state will distribute personal protective equipment (PPE) and send medical volunteers as needed in order to help secure the safety of both poll workers and voters.
- Public buildings, such as schools and libraries, may be opened for the purpose of conducting critical government functions like elections.
- The state’s Constitution permits localities to petition the Supreme Court of Virginia for an addition to postpone elections up to 30 days. However, it is important to note that the 30-day count begins from the original election date, or June 4th at the latest.
Petitioning the Supreme Court of Virginia
Should your locality choose to petition the Supreme Court of Virginia, please contact VML as soon as possible.
VML Contact: Jessica Ackerman, jackerman@vml.org
General Assembly
General Assembly adapts to coronavirus and adopts budget amendments
Measures affecting FOIA, and CARES Act get attention
Practicing the art of social distancing while wearing face masks fashioned from bandanas or purchased from Lowes, ignoring protestors blasting away on their car horns while meeting in two separate locations some three miles apart, the members of Virginia’s House of Delegates and State Senate proved their mettle on Wednesday by carrying out their constitutional responsibility to review the governor’s proposed amendments to legislation passed during the regular session.
There were 181 budget amendments just to the two budget bills (HB29 and HB30) and the General Assembly approved all but eleven. This does not mean the deliberative actions were either swift or congenial. Debate zeroed in on items to expand gubernatorial powers during the COVID-19 pandemic, particularly in regards, for example, to changing the State Medicaid Plan, authorizing the Commonwealth Transportation Board to move money between agencies and programs for changing unemployment benefits. New spending amendments not considered during the Regular Session were also hotly debated.
Amendments added for FOIA and electronic meetings
Amendments regarding the Freedom of Information Act (FOIA) and emergency meetings are of particular interest to local governments. The amendments to HB29 and HB30 allow public bodies to meet by electronic communications during a declared emergency that makes it impracticable or unsafe for the public body or governing board to assemble in a single location and when the purpose of meeting is to discuss or transact the business statutorily required or necessary to continue operations of the public body. Per the amendments:
- Notice of the meeting has to be given.
- A recording or transcript of the meeting has to be made available (localities will want to double check with their counsel on the timing).
- Further, arrangements have to be made for public access through electronic means and the minutes have to state that the meeting was held electronically.
CARES Act funding discretion given
Regarding the use of federal CARES Act funding, the General Assembly agreed to give the governor considerable discretion to spend the money to battle COVID-19 in accordance with federal guidelines released late on Wednesday. The legislators also signed off on amendments in HB29 and HB30 to authorize temporary borrowing using 9A and 9D state bonds. Some $750 million could be issued taking advantage of a special program managed by the Federal Reserve Bank designed to inject operating cash into struggling state and local budgets. Although up to $250 million is authorized for localities under the governor’s budget amendments, Federal Reserve guidelines restrict participation to cities with a population exceeding one million residents and to counties with a population exceeding two million residents. No Virginia locality meets that test.
Sine die, for now
The two budget bills were the last measures considered by the General Assembly before the House exited the state capitol grounds and the Senate vacated the Virginia Science Museum. The Senate, finishing after the House, adjourned sine die at 10:15 p.m.
Leadership in both chambers made it clear that the budget work for the new biennium (beginning on July 1) is far from over. Armed with the governor’s new revenue forecast and his recommendations to cut some portion (or all) of the new spending the approved Veto Session amendments now hold in abeyance, the delegates and senators expect Gov. Northam to call them back to Richmond for a Special Session on the budget sometime during the summer when the real effort to balance scarce resources and yet-to-be calculated needs can commence.
VML Contact: Neal Menkes, nmenkes@vml.org; Michelle Gowdy, mgowdy@vml.org
Revenue & Taxes
Games of Skill: The strange tale of a bill to simultaneously ban and authorize gambling (continued from last week)
This is the story of HB881 and SB971. Like any good story, it has five parts: 1. Exposition, 2. Rising Action, 3. Climax, 4. Falling Action and 5. Resolution. (Not to be confused with the seven stages of grief.)
In the exposition, Governor Northam was alarmed by reports from financial experts that sales of lottery tickets were slumping because of competition from “games of skill” machines and slot machines. The rising action took place in the halls and committee rooms of the General Assembly. It seemed to reach its plot climax when the legislature enacted measures defining these machines as illegal gambling devices.
The falling action occurred when the new legislation, ready for signing, arrived on the governor’s desk.
Ready for the resolution? Just ahead of the deadline, the governor submitted an amendment in the nature of a substitute that changed everything.
Time for a new chapter
The effect of the governor’s amendment, which the General Assembly overwhelmingly approved on Wednesday, is to reverse the traffic flow on a one-way street.
The bill, as passed by the General Assembly, declared these mechanical games illegal. However, the governor’s successful amendment delays that action for one-year. During the 12-month period, these games of skill will be legal with a $1,200 monthly tax on each machine distributed in Virginia during the previous month. The tax allocation is as follows:
- 2% goes to a special fund to treat people with gambling addictions;
- 2% goes to the Department of Alcoholic Beverage Control to administer the bills;
- 12% goes to the localities where the games are physically located; and,
- 84% goes to the newly established COVID-19 Relief Fund to respond to the pandemic.
The number of machines permitted in Virginia will be limited to the number of machines a manufacturer/distributor reports to ABC effective July 1, 2020. Those machines must be in service in ABC business licensees and truck stops as of June 30, 2020.
Finally, on July 1, 2021, the story is slated to end – traffic flow will be reversed again –and games of skill machines will officially become illegal gambling devices.
VML Contact: Neal Menkes, nmenkes@vml.org
Peer-to-Peer Vehicle Rentals: Legislature approves Northam amendment extending time until implementation
The General Assembly approved, with only a handful of dissenting votes, Gov. Northam’s amendment to SB735 which delays until October 1, 2020, the implementation date for several sections of the bill dealing with taxes (originally slated to begin with the start of the new fiscal year on July 1, 2020). The tax treatment for consumers who rent from the vehicle sharing platforms was a major stumbling block in a study undertaken last year by the Department of Motor Vehicles. Consensus could not be reached among local government representatives (including VML and VACo) and the platform companies who advocated for a reduction of the consumer-paid daily rental vehicle tax, from the current 10 percent to 6 percent.
The compromise reached during the regular session set the tax rate at 6.5 percent in FY21, increasing to a permanent rate of 7 percent beginning in FY22 for companies renting ten or fewer vehicles on sharing platforms. Companies with larger vehicle fleets will collect the 10 percent tax rate from their customers.
As amended, SB735 recognizes that the Virginia Department of Taxation may have to develop guidelines to implement the act. Given the extraordinary workload the state tax agency will have to deal with because of changed tax submission deadlines and fading state revenues, the additional time to set up the program is justified.
VML Contact: Neal Menkes, nmenkes@vml.org
Transportation
Vulnerable Road Users: Amendments approved
The House and Senate approved the Governor’s amendments to SB437 which makes operating a motor vehicle in a careless or distracted manner that endangers vulnerable road users a misdemeanor offense. The legislation as originally passed included an expansive list of vulnerable road users including pedestrians, cyclists, wheelchairs, skateboards, roller skates, animal drawn vehicles and animals. The governor’s amendments clarified that operators, passengers and attached devices are included in the definition of vulnerable road users.
Electric Personal Delivery Devices: Amendments approved
The House and Senate approved the Governor’s amendments to SB758 requiring that electric personal delivery devices yield the right of way to pedestrians and have a visible  placard identifying the owner and operator of devices. This legislation proposes allowing 500 pound personal delivery devices operate on sidewalks and roadways throughout the Commonwealth.
VML Contact: Mitchell Smiley, msmiley@vml.org
Omnibus transportation legislation: Passed with amendment to cap distribution to localities
Most of the amendments to the transportation omnibus legislation HB1414/SB890 were technical in nature. However, amendment number 5 moves the date by which the state’s share of revenue distributed to localities from the Recordation and Grantor’s tax is capped at $20 million (previously $40 million) from July 1, 2021 to July 1, 2020. This has the effect of conforming the statutory language with budget language that caps appropriations at $20 million and that sends this revenue to the General Fund.
VML Contact: Mitchell Smiley, msmiley@vml.org
Hampton Roads Transit Legislation: Passed with amendment directing distributions
The Governor’s recommended amendments to HB1726/SB1038 were passed by the General Assembly. This legislation also impacts the state’s distribution to localities collected from the Recordation and Grantor’s tax by directing all of the $20 million from the state’s distribution to localities towards the Hampton Roads Transportation company by way of the Hampton Roads Accountability Commission.
This legislation, according to the State Department of Taxation, will exhaust Recordation and Grantor’s tax revenues as appropriated for distribution to localities. According to the Department of Taxation report, this will impact every city and county outside of Northern Virginia and Hampton Roads.
VML member cities will see a total decline of more than $3 million in the next fiscal year from this change.
VML Contact: Mitchell Smiley, msmiley@vml.org
Public safety
Local Gun Control: Authority clarified by amendment
The General Assembly adopted the Governor’s proposed amendments to HB421 (Price) / SB35 (Surovell). The amendments of interest to local governments added the words “or operated” in the sections dealing with public parks, thus clarifying the authority of the locality to adopt ordinances to prohibit the possession or carrying of firearms, ammunition/components or any combination prohibition in various places.
Human Resource Management
Workers’ Compensation PTSD: Substitute approved
The General Assembly approved the Governor’s substitute to the workers’ compensation post-traumatic stress bills (HB438 / SB561). The substitute adds a requirement that each employer of law-enforcement personnel and firefighters shall make peer support available and refer law-enforcement and firefighters to a mental health professional if requested. There are some other technical amendments as well.
VML Contact: Michelle Gowdy, mgowdy@vml.org
Effective date delayed for several bills
The Governor asked for a delay to May 1, 2021 in the effective date for several major pieces of legislation enacted during the regular session, as shown below.
Collective Bargaining
The collective bargaining bill (SB939) permits counties, cities, and towns to adopt local ordinances authorizing them to (i) recognize any labor union or other employee association as a bargaining agent of any public officers or employees, except for Constitutional officers and their employees, and including public school employees and (ii) collectively bargain or enter into any collective bargaining contract with any such union or association or its agents with respect to any matter relating to them or their employment. The bill provides that the prohibition against striking for public employees applies irrespective of any such local ordinance. Originally the bill took effect this July; with the amendment the bill becomes effective May 1, 2021.
Minimum Wage
The minimum wage legislation (HB395 / SB7) increases the minimum wage from its current federally mandated level of $7.25 per hour to $9.50 per hour effective May 1, 2021; to $11.00 per hour effective January 1, 2022; to $12.00 per hour effective January 1, 2023; to $13.50 per hour effective January 1, 2025; and to $15.00 per hour effective January 1, 2026. For January 1, 2027, and thereafter, the annual minimum wage shall be adjusted to reflect increases in the consumer price index. The measure provides that the increases scheduled for 2025 and 2026 will not become effective unless reenacted by the General Assembly prior to July 1, 2024. If such provisions are not reenacted prior to July 1, 2024, then the annual minimum wage will be adjusted to reflect increases in the consumer price index beginning January 1, 2025.
The measure creates a training wage at 75 percent of the minimum wage for employees in on-the-job training programs lasting less than 90 days.
The measure also provides that the Virginia minimum wage applies to persons whose employment is covered by the Fair Labor Standards Act; persons employed in domestic service or in or about a private home; persons who normally work and are paid on the amount of work done; persons with intellectual or physical disabilities except those whose employment is covered by a special certificate issued by the U.S. Secretary of Labor; persons employed by an employer who does not employ four or more persons at any one time; and persons who are less than 18 years of age and who are under the jurisdiction of a juvenile and domestic relations district court.
Exemptions: The legislation provides that the Virginia minimum wage does not apply to persons participating in the U.S. Department of State’s au pair program, persons employed as temporary foreign workers, and persons employed by certain amusement or recreational establishments, organized camps, or religious or nonprofit educational conference centers.
As passed during the regular session, the increase would have begun in January 2021, but the Governor’s amendment delayed that to May 2021.
Prevailing wage for public works contract legislation
HB833 / SB8 allow localities to adopt an ordinance to require the payment of prevailing wages to any mechanic, laborer, or worker employed, retained, or otherwise hired to perform services in connection with the public contract.
The effective date of the legislation is delayed from this July 1, 2020 to May 1, 2021.
Public works contracts and the authorization for project labor agreements
HB358 authorizes public bodies, including local go9vernment, to require bidders to enter into or adhere to project labor agreements on the public works projects. Public body is defined in the bill as any authority, board, bureau, commission, district, or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns, and counties, municipal councils, school boards, and public institutions of higher education. Project labor agreement is defined in the bill as a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific public works project.
The effective date of the legislation is delayed from this July 1, 2020 to May 1, 2021.
VML Contact: Michelle Gowdy, mgowdy@vml.org
Energy & Environment
Clean Energy and Community Flood Preparedness Act: Passed with amendments intact
In passing HB981/SB1027 the General Assembly approved the Governor’s amendments to change the structure and nature of the fund created for the purposes of flood mitigation loans. These changes are largely technical and do not impact the purpose of the fund.
As a reminder, the Clean Energy and Community Flood Preparedness Act directs revenues generated from the Regional Greenhouse Initiative to funds that can be accessed as loans by localities to distribute to community projects designed to mitigate the impacts of flooding.
VML Contact: Mitchell Smiley, msmiley@vml.org
Solar Revenue Sharing: Passed as amended
The General Assembly approved Governor’s amendments to HB1131 / SB762 clarifying that a locality can choose either to levy the commercial solar generation assessment or the Machinery and Tools tax but not both. The Machinery and Tools tax rate localities can levy on solar generating facilities remains unchanged by this legislation.
As a reminder, this legislation provides localities with commercial solar generation facilities the option of levying a revenue sharing assessment instead of the Machinery and Tools tax.
VML Contact: Mitchell Smiley, msmiley@vml.org
Shared solar programs: Passed with amendment to expand low-income service requirements
The Governor proposed and the General Assembly approved changing the part of HB1634 / SB629 requiring the State Corporation Commission to approve shared solar programs primarily serving low income persons and communities. The approved amendments broaden the definition of an eligible “low income community” as one that has less than 80% of the area median income as determined by the U.S. Department of Housing and Urban Development.
This legislation sets out the conditions for the establishment, operation, and regulation of shared solar programs and specifically require these programs serve low income communities.
VML Contact: Mitchell Smiley, msmiley@vml.org
Community Flood Preparedness Fund: Passed with amendments to broaden qualifying flood types
The General Assembly approved the Governor’s amendments to SB320 which broaden the types of flooding that qualify for fund distribution to include recurrent flooding, sea level rise, and flooding from severe weather events. The amendments also contain technical changes to the structure of the fund.
Distributions from this fund are intended to provide localities with a source of funding to assist with the impacts from flooding and provide the option of forgiving the loan balance principal under certain circumstances.
The overall purpose of this act is to change an existing fund that is unused into a fund that can receive state revenues from the sale of emissions credits for the purpose of assisting localities mitigate the impacts of flooding.
Chesapeake Bay Preservation Area, mature trees: Passed with amendments to broaden criteria
The General Assembly approved amendments from the Governor to HB504 directing the State Water Control Board to also consider how to increase coastal resiliency as it pertains to sea level rise and climate change. This broadens the factors and criteria that the State Water Control Board must consider in regulations impacting local government land use activities.
The legislation adds mature trees and the planting of trees as water quality protection tools for the State Water Control Board to add to the list of activities for use in development within Chesapeake Bay Preservation Areas.
VML Contact: Mitchell Smiley, msmiley@vml.org
COVID-19 updates
Danville council approves resolution urging businesses to implement social distancing
Earlier this week the Danville City Council adopted a resolution that urges local businesses to implement social distancing best practices to protect the health and well-being of customers and employees.
The resolution came about because of concerns heard by city officials that detailed crowding in some stores, the lack of hand sanitizer or wipes for carts, and no options for senior citizen-only shopping hours.
The resolution urges businesses to enact limits on the numbers of shoppers that can be in the store at one time, mark floors to encourage distancing at check-out, establish one-way aisles, have employees use face masks, implement senior-only shopping hours, and allow phone-in orders for customers who lack internet access.
The resolution may be seen here >
VML Contact: Janet Areson, jareson@vml.org
Updates from this week’s Virginia Department of Health (VDH) partner call
The state continues to seek PPE for the many health and safety sectors that require it. While the state has secured a contract for more equipment, the ability of the contractor to deliver is still subject to the ever-changing supply chain.
While VDH has a COVID-19 webpage that offers statewide information, caseload numbers and more, if you are interested in seeing combined information from hospitals, including number of beds and ventilators available, numbers of patients discharged, etc., you can visit the Virginia Hospital and Healthcare Association (VHHA) dashboard.
Along with the availability of PPE for all the sectors needing it, another concern raised by state officials is the drop in EMS calls and visits to emergency rooms. The concern is that people are fearful of being exposed to COVID-19 in emergency rooms, so they put off having potentially urgent conditions addressed. Hospitals have begun reaching out to communities to assure people that it is safe to come to an emergency room if they need assistance and to not delay having serious medical conditions addressed.
VML Contact: Janet Areson, jareson@vml.org
Announcements
White House releases fact sheet detailing federal support to Virginia
The White House Office of Intergovernmental Affairs has published a fact sheet titled “The Trump Administration Is Supporting the People of Virginia.” This document provides an overview of Federal coordination and assistance provided to the Commonwealth of Virginia and the people of Virginia to combat the coronavirus. It also includes links to resources.
Download the fact sheet here >
The White House Office of Intergovernmental Affairs (WH IGA) will continue to share pertinent information as it becomes available.
