eNews March 13, 2020
Friday, March 13, 2020 - 04:47pm
In this issue:
- How should local governments conduct meetings during this crisis?
- Speaking of emergency planning – have you talked to your VDEM regional rep?
Health
How should local governments conduct meetings during this crisis?
Several VML members have expressed concern over how to conduct business during this time when we are not supposed to be near each other! My guess is that the Freedom of Information Act never contemplated a scenario where people were not encouraged to meet. VML has received guidance from the FOIA Council on how to use subdivision A3 of Virginia Code Section 2.2-3708.2.
That opinion – which is advisory only – is posted here >.
However, VML also wanted to get clarity on Virginia Code Section 44-146.21 which states that during a state of emergency (state or local) “the director of emergency management of each political subdivision or any member of the governing body, may…..[among other powers] proceed without regard to time-consuming procedures and formalities prescribed by law (except mandatory constitutional requirements) pertaining to the performance of public work………..”
Senator McPike and Delegate Sullivan were kind enough to send a letter to the Office of the Attorney General asking the following question: “Does Va. Code 44-146.21 allow local governing bodies, upon declaration of a state of emergency, to hold their meetings solely by electronic communication during the pendency of the emergency?”
This letter was sent on March 13, 2020 and we are awaiting an answer.
Two other questions were also asked in the letter to the Attorney General:
- “Since the Governor has declared a state of emergency, may local governing bodies hold their meetings solely by electronic communication during the pendency of the emergency pursuant to Va. Code 2.2-3708.2.A.3?”
- “If the foregoing statutes do not allow solely electronic meetings of local governing bodies, how can the continuity of government be provided by such meetings be ensured under Virginia law?”
VML continues to try and gain clarity on these issues. We will continue to post update to our Coronavirus Resources page.
As you issue your local emergency declarations, please keep this guidance in mind and consult your attorney on how to provide as much flexibility as possible.
VML Contact: Michelle Gowdy, mgowdy@vml.org
Speaking of emergency planning – more resources for you
The Virginia Department of Emergency Management (VDEM) website offers information and links that, like the Virginia Department of Health, are helpful to local officials as well as individuals, families, and workplaces seeking information about basic emergency preparedness. You can bookmark it for reference.
And if you haven’t already bookmarked it and posted it on your locality’s website, the Virginia Department of Health’s website offers a whole range of information about COVID-19, including links to federal partner agencies. This website is updated regularly (often hourly) as needed.
Other resources include the International City/County Management Association (ICMA), which has created a page with links to a coronavirus discussion guide and other local government-related issues as well as links to other organizations/websites of possible interest.
Finally, a publication on leadership before, during and after a crisis written by Ron Carlee, DPA, former Arlington County Manager and director of the Center for Regional Excellence, Strome College of Business at Old Dominion University, is available online here. Carlee addressed crisis leadership at the VML Mayor’s Institute at the 2019 Annual Conference in Roanoke.
VML Contact: Janet Areson, jareson@vml.org
Finance
BB&T is asking localities for money back!
Workgroup formed on issue
VML has been made aware that BB&T is attempting to collect a substantial refund from localities. On or about February 27, 2020, the Virginia Department of Taxation issued a memorandum to local Commissioners of the Revenue that listed localities and the amounts owed to BB&T for tax years 2012-2014 as a refund to the Bank Franchise Tax (BFT) totaling $10,320,242.
The memorandum is posted here >.
The BFT is a self-assessed tax by the banks based upon state statute and regulations issued by the State Tax Commissioner. The bank’s return is sent to the Commissioner of the Revenue who forwards the document to the State. A locality can adopt, if it chooses, an ordinance to impose a local BFT equal to 80 percent of the state rate. The local portion is remitted to the local Treasurer and the state portion to the State. The Department of Taxation has taken the position that the localities must refund the local portions based on an appeal of an erroneous assessment made by the state.
Localities were not notified of the appeal until now.
There was a similar appeal made in 2014 by a different bank. The State Tax Commissioner made a quick decision and provided the refund information to localities. An agreement was reached, and the payments were made by the localities without them having to pay interest on the refunds owed.
The concern in this instance is that neither the bank nor the State Tax Commissioner notified localities, and these are revisions based on returns from several years ago. A workgroup has been formed and members have already asked the Department of Taxation for a meeting.
Please let VML know if you have an interest in participating or if you want to be further informed on this issue.
VML Contact: Michelle Gowdy, mgowdy@vml.org
General Assembly
2020 session ends with legislative wins, losses and missed opportunities for localities
The General Assembly’s legislative process groaned (and nearly collapsed) as newly empowered Democrats pushed through stunning new statewide policies and reversed some twenty-years of Republican actions in the space of 60-days.
Weary delegates and senators, bleary-eyed from long hours spent in committees and subcommittees, engaged in lengthy floor debates on what at times seemed like an overwhelmingly large number of bills. Proposals to expand voting rights; regulate the possession of and access to firearms; manage locally owned Confederate statues; modernize county taxing powers; increase transportation funding; and tilt legislative attention from business interests to the interests of labor are just a sampling of the issue reversals made by state legislators.
In case you don’t yet know who will pay for these policy changes…SPOILER ALERT: Localities will have to pony up the money.
Some bright spots
However, local priorities were not ignored in every instance. In the “win column,” cities and counties are now authorized under SB11 and HB534 to impose by ordinance a 5 cent tax on disposable plastic bags for local environmental cleanup and education programs to reduce environmental waste. Both measures passed the General Assembly by party-line votes.
The “disruption economy” was somewhat disrupted by SB735 which passed the General Assembly with strong bipartisan support. The measure establishes insurance, taxation, recordkeeping, disclosure, and safety recall requirements for individuals and companies engaged in “peer-to-peer” vehicle rentals. Efforts to slash the vehicle rental tax rate for peer-to-peer rentals from the current 10 percent to 4 percent failed. The final bill, thanks to local governments and our allies, establishes a 7 percent rate for individuals and companies renting ten or fewer vehicles through online platforms. The 10 percent rental rate imposed on car renters who rent from conventional businesses like Hertz will also be applied to those companies with a fleet of 11 or more vehicles who use online platforms.
In some cases, the General Assembly’s action to defeat or significantly alter a legislative proposal qualified as a notch in the local government “win” column. For example:
HB869 would have mandated cities and counties to supplement state compensation for public defenders by the same amount the localities supplement their Commonwealth’s Attorney’s Offices.
SB1067 would have required localities to provide full waivers of certain stormwater charges for public use airport runways and taxiways.
HB1438 as first proposed, the state would have reserved all tolling privileges for itself. VML, HRTAC and others successfully lobbied to turn the bill inside out to protect local and regional interests. As enacted, HB1438 authorizes the Hampton Roads Transportation Accountability Commission (HRTAC) to impose and collect tolls in high-occupancy toll lanes on certain portions of Interstate 64. The bill directs the Commission to enter into an agreement with the Commonwealth Transportation Board and the Department of Transportation regarding the standards for operating the facility and use of toll proceeds.
But not all the stories had happy endings
SB588 and HB785 modernized the taxing authority of Virginia’s counties. The legislation also capped the tax rates that cities and towns can impose on cigarettes. It is unclear why the General Assembly decided that city and town authority to tax cigarettes should be included in these measures (other than Altria wanting it). It is also unclear why if the General Assembly was concerned about taxes on cigarettes that it raised the state tax on this item, effectively doubling the tax from 30¢ per pack of 20 cigarettes to 60¢ per pack.
HB831 and SB794 are measures passed by the General Assembly that extend land use powers (enjoyed by utilities for services provided to the public) to private profit-making businesses. Although ostensibly intended to expand broadband service to unserved and underserved areas of the state, the bills trespass on the property rights of citizens and local governments without providing compensation or notice. Despite overwhelming legislative support, VML believes the measures are unconstitutional.
SB9 and HB783 add cancers of the colon, brain, or testes to the list of cancers that are presumed to be an occupational disease covered by the Virginia Workers’ Compensation Act when firefighters and certain employees develop the cancer. The measures remove the compensability requirement that the employee who develops cancer had contact with a toxic substance encountered in the line of duty. In addition, the bills establish a five-year service requirement to qualify for a presumption that hypertension or heart disease are an occupational disease. Further, the bills, reduce from twelve to five years the service requirement to qualify for a presumption that cancer is an occupational disease.
To be clear: The issue with this SB9 and HB783 is not whether these benefits are deserved. The issue is that the state is mandating these benefits without funding even a portion of the costs that are sure to come; setting up unachievable timelines for public employers to review and approve or disapprove claims; and creating a segue from the workers compensation program to the more expensive line of duty act program.
HB582 repeals the existing prohibition on collective bargaining by local government employees. The measure requires public employers and employee organizations that are exclusive bargaining representatives to negotiate in good faith with respect to wages, hours, and other terms and conditions of employment. It is important to point out that the legislation does NOT include state employees. This was not an oversight. The state decided that the decision to include state employees requires study. (According to the VEC, there are 161,100 state employees as opposed to 378,000 local employees.)
As for missed and muffed opportunities, these can be found in the budget conference report. For example, the Senate’s version of the budget included $30.7 million to accelerate the payback of the contributions deferred during the 2010-12 biennium. The amendment did not survive the budget conference. If it had, employer contribution rates paid by cities and counties for teacher retirement could have been reduced. A House budget amendment included $5 million each year to pay for the cost of lowering the Virginia Retirement System amortization period by five years by adjusting the Retiree Health Care Credit (RHCC) rate calculation. This action would provide an estimated savings of $388 million over the amortization period, but ultimately was rejected by the budget conferees.
More to come
Don’t let anyone tell you otherwise. The 2020 legislative session is not over.
Although legislators finished their business earlier in the week, just like Arnold Schwarzenegger in the Terminator movies, they will be back. April 22 is the Reconvened Session for the General Assembly to act on gubernatorial amendments to legislation and the budget. The members will also consider sustaining or overriding any measures that Gov. Northam vetoes.
VML Contact: Neal Menkes, nmenkes@vml.org
Elections
Preclearance (thankfully) dies for 2020
Del. VanValkenburg’s preclearance bill (HB761), which would have reinstituted stringent requirements from Section 5 of the Voting Rights Act for select localities across the Commonwealth, died quietly in conference. Among other issues, the proposed legislation would have applied to localities only – not to statewide districts or elections – and failed to include provisions that had previously been available under Section 5, such as the ability to opt out upon meeting certain criteria. Because HB761 would have only applied to localities with two or more racial or ethnic populations making up 20 percent or more of their voting-aged residents, questions also arose about the accuracy and frequency of any determination of which cities and counties would fall under its domain.
VML will continue to monitor this and other election-related issues that may arise ahead of the 2021 General Assembly session.
VML Contact: Jessica Ackerman, jackerman@vml.org
Redistricting amendment passes both houses
After a session of discussion and controversy, SJR18 (Barker) passed both the House and Senate and will go to the voters for approval or not in the general election this November.
The amendment provides for a 16-member Virginia Redistricting Commission whose membership would consist of equal numbers of legislators and independent citizens, with an emphasis on equal involvement by Democrats and Republicans.
Should the amendment be approved by the voters, it would take effect November 20, 2020.
VML Contact: Jessica Ackerman, jackerman@vml.org
