eNews: Special Edition January 25, 2022
Tuesday, January 25, 2022 - 06:39pm
This issue sponsored by:
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In this issue:
- CSA, education, and public safety budget amendments introduced
- Governor Youngkin introduces budget amendments
- Bills reported from Senate Local Government: Two to watch and one to oppose
- Eminent Domain bills would make condemnation cases more expensive for localities
- Sovereign Immunity bill to watch: Civil actions against localities and local employees
- Criteria for Virginia Telecommunications Initiative Grant bill reported from House Communications, Technology, and Innovation Committee
- House Commerce and Energy Committee overtime bill
- House General Laws Subcommittees hears many FOIA bills (and more!)
- Charter bills reported from the Charter Subcommittee of Senate Local Government
Budget
CSA, education, and public safety budget amendments introduced
VML and local government partners worked budget amendments to introduce this session. The following are budget amendments addressing the Children’s Services Act (CSA) program, jail per diems, and HB 599 funding (this includes all the HB 599 amendments, including those introduced independently of local government partners’ efforts).
Children’s Services Act (CSA)
HB30 (2022-2024 biennium)
CSA administrative funding to localities – 284#2h (Plum) and 284#1s (Hanger):
Provides $2.5 million (GF) each year to ensure that each local CSA program receives at least $50,000 per year in administrative funding (including local matching dollars).
CSA regional technical assistance consultants – 285#2h (Plum) and 285#2s (Hanger):
Provides $542,320 in FY23 and $511,920 in FY24 to support four regional consultants at Office of Children’s Services to provide support to local CSA programs with effective program implementation.
K-12 Education
Instructional aides – Item 137 #17h (Plum); 137#18h (Keam); Item 137 #12s (McClellan):
Provides $160.2 million in FY23 and $167.4 million in FY24 for the state’s share of funding for instructional aides based on the ratio of total kindergarten through grade seven instructional aides to total kindergarten through grade seven teachers. Currently, instructional aides are only funded for kindergarten and special education. This amendment is intended to provide additional state support for positions that are currently funded only with local dollars.
Flexibility in teacher compensation increase – Item 137 #10h (Watts); Item 137 #2s (Marsden); Item 137 #8s (Ebbin):
Removes the requirement in the introduced budget for school divisions to provide at least an average 2.5 percent salary increase in each year of the biennium to access the state share of the 5 percent compensation supplement that is proposed for each year of the biennium. With the removal of this language, school divisions could provide the local share of up to a 5 percent salary increase in each year of the biennium without having to meet a minimum threshold to access the state share.
Elimination of the Support Cap – 137#9 (Kory, Reid, Barker):
Would provide $419.2 million in FY23 and $430.5 million in FY24 to offset the cost and eliminate the support cap. Following the recession in 2009, a “temporary” support cap was implemented. This support cap limited the number of support positions that were funded by the Standards of Quality (SOQ) to save money over time. However, after 13 years this support cap is still in place. This proposal was adopted by the Board of Education as part of its biennial SOQ review.
Public Safety
HB30/SB30 (2022-2024 biennium):
Jail per diems – 73#1h (Brewer), 73#3s (Petersen), and 73#4s (Deeds):
These amendments would increase the per diem paid to local and regional jails for local responsible inmates from $4 to $8 per day, and from $18 to $22 for inmates housed and maintained in a jail farm not under the control of the sheriff. This returns the per diem rate to that which was in place prior to a reduction during the Great Recession.
State assistance to local law enforcement – (HB599) funding: 410 #2h (Brewer); 410#1s (Reeves); 410#2s (Edwards); 410#3s (Lucas); 410#4s (Newman):
These amendments provide $49.4 million the first year and $59.4 million the second year from the general fund for the State Aid to Localities with Police Departments (“599”) Program. The purpose is to reflect the general fund revenue growth rate of 14.4 percent in FY 2021 and 4.9 percent in FY 2022, as well as the projected general fund revenue growth of 4.8 percent in FY 2023 and 4.2 percent in FY 2024, as directed by § 9.1-165, et seq., Code of Virginia
HB 29/SB 29 (FY2022 budget):
State Assistance to Local Law Enforcement (HB 599) – 408 #2h (Brewer); 408#1s (Edwards); 408#2s (Lucas); 408#3s (Reeves):
Provides $38.4 million from the general fund for the State Aid to Localities with Police Departments (“599”) Program. The purpose is to reflect the general fund revenue growth rate of 14.4 percent in FY 2021 and 4.9 percent in FY 2022, as directed by § 9.1-165, et seq., Code of Virginia.
VML Contact: Janet Areson, jareson@vml.org
Governor Youngkin introduces budget amendments
Whenever a newly elected governor takes office, he/she is given the opportunity introduce budget amendments during the Session. Newly inaugurated Governor Glenn Youngkin took advantage of that opportunity and offered 25 budget amendments in the past week. Some of those proposed budget amendments included matters affecting local governments including the following under HB/SB29 (FY2022):
Gasoline tax delay: 4-14.00#1g
This amendment delays a planned increase in gasoline taxes from July 1, 2022, until July 1, 2023
Increase Funding for GO Virginia and Establish a Talent Pathways Program: 115 #14G
This amendment adds $29.5 million in FY23 and $54.45 million in FY24 to restore funding for GO Virginia’s existing grant programs to the fiscal year 2021 base level, and establishes and funds a new “talent pathways” development initiative to foster collaboration by business and education on expanding job opportunities, meeting workforce needs, and developing and retaining talent in the Commonwealth
Additional Virginia Business Ready Sites Funding: 125 #6g
This amendment adds $14.45 million (GF) each year for the Business Ready Sites Program to $20.0 million each year.
Create Temporary Interagency Office on Infrastructure Funding Coordination: 257 #1g
This amendment provides $1.0 million in FY 23 for efforts to secure federal grant funding provided by the Infrastructure Investment and Jobs Act.
School Resource Officer funding: 408#8g
This amendment provides $25.8 million each year for School Resource Officer Incentive Grants.
Additional 599 Aid to Localities Funding: 410 #3G
This amendment provides an additional $13.5 million each year to be distributed to localities with qualifying police departments; except that no funds shall be allocated to any locality in which the police department’s budget has decreased on a per capita basis.”
Office of Drinking Water: 296#3g
Provides $1.834 million each year avert 14 layoffs within the Office of Drinking Water.
Law Enforcement Training and Equipment: 486#16g
This amendment provides $100 million in American Rescue Plan Act (ARPA) funding in FY23 to the Department of Criminal Justice Services to make one-time grants to state and local law enforcement agencies, including colleges and universities, local and regional jails for training and purchasing of equipment and supplies to support law enforcement related activities including operating and maintaining body cameras, vehicles, tablets for patrol vehicles, tactical equipment, specialty and protective gear, and body armor. Any distribution made to a local law enforcement agency shall not require a local match.
To see all the budget amendments introduced by General Assembly members, go to the State Budget Amendments page on the General Assembly’s website.
VML Contact: Janet Areson, jareson@vml.org
Finance
The “Grocery Tax”: A brief history
The 2022 General Assembly has before it several bills to exempt groceries from the sales and use tax. While this initiative has gathered a lot of recent attention, it is not new. In fact, it’s been around the block a few times. Let’s use this opportunity to look at the history of this issue with the General Assembly.
In 1966, the Virginia General Assembly established two sales taxes: a statewide sales tax of 3 percent and a local option sales tax of 1 percent, totaling 4 percent.
| Original 3 percent State Sales Tax Distribution | |
| 2/3 | State General Fund |
| 1/3 | Distributed to public schools based on school age population |
The state sales tax rate has been increased three times to its present level of 5.3 percent statewide. While the General Assembly increased the state sales tax rate in recent decades, it has also partially exempted “food intended for home consumption” (a.k.a. groceries) from the tax.
However, the General Assembly has not yet made the grocery tax emption fully retroactive to 1966. For this reason, groceries continue to be taxed at a reduced sales tax rate of 2.5 percent (that’s 1 percent local option sales tax and 1.5 percent reduced state sales tax).
“Repeal and fully replace” is not a new idea
Because sales taxes increased the cost of nondiscretionary items like food, there has always been bipartisan support to “repeal the grocery tax” in Virginia. This is why the combined sales tax rate on groceries today is 2.5 percent, not the 5.3 percent levied otherwise.
However, it is critical to recall that while the General Assembly has partially exempted groceries from sales taxes, it has also increased the rate of that sales tax. These corresponding actions were vital in the past to keep state budgets in balance.
But now, in 2022, the movement to fully repeal the grocery tax is back with a vengeance.
VML is tracking several bills this session that would fully exempt groceries from state and local sales taxes (HB1008 (Durant), SB571 (Newman), HB90 (McNamara), SB609 (DeSteph), and SB380 (McDougle). Some of these bills partially replace lost revenue to local governments, and some of them propose no revenue replacement at all.
VML encourages the General Assembly and Governor Glenn Youngkin to follow the examples of past governors and legislators and fully replace the expected revenue loss from exempting groceries from sales taxes.
VML will continue to monitor and educate our members about the potential impact of changes to Virginia’s state and local sales taxes. We expect many opportunities to help Senators and Delegates appreciate how any tax cutting proposals made by the state will affect local government budgets.
VML Contact: Carter Hutchinson, chutchinson@vml.org
Education
Sales tax for school construction: Update
SB472 (McClellan) was heard on the Senate Floor on Monday January 24th for its third and final reading. This bill passed out of the Senate with a vote of 28-12. VML thanks everyone who advocated on behalf of this legislation. VML continues to support this legislation and will provide further updates on SB472 after crossover occurs on February 15th.
VML Contact: Josette Bulova, jbulova@vml.org
Local surplus funding: Update
VML has worked with Delegate Simonds and SB251 will be heard in House Education Early Childhood Education and Innovation Subcommittee with new language to match SB481 (McClellan) which has been covered in the two most recent editions of eNews (January 18 article here; January 25 article here). VML supports this legislation and urges members to support it as well.
HB608 (Bourne) will be in front of the House Education Early Childhood Education and Innovation Subcommittee as well. This bill does not reflect the amendments VML proposed. VML plans to speak in opposition of this legislation in subcommittee as well.
VML Contact: Josette Bulova, jbulova@vml.org
Local Government Legislation
Bills reported from Senate Local Government: Two to watch and one to oppose
The following bills were reported from the Senate Local Government Committee.
SB52 (Cosgrove) Payment by subdivider of the pro rata share of the cost of certain facilities. If a locality has an ordinance to allow for payment by the developer or subdivider of the pro rata share of the cost of providing sewer, water, stormwater etc., for property located outside the property limits of the land owned/controlled by the developer necessitated by such development, this bill will require that a subsequent subdivider or developer shall pay for their share of the facilities.
SB206 (Petersen) Historic Preservation. If a locality has adopted an ordinance setting out historic landmarks within the locality as established by the Virginia Board of Historic Resources or other structures as defined by 15.2-2201 an application may be filed to preserve or accommodate historical or archaeological resources. Under this bill the filing of the application shall stay the locality from issuing a permit to raze or demolish the structure until 30 days after the rendering of the final decision of the governing body. In addition, the affected property owner, the applicant or any resident who provided public input may appeal to the circuit court for review of any final decision of the governing body.
Cell tower bill opposed by VML
SB255 (Bell) Zoning; wireless communications infrastructure; application process. VML urges you to contact your delegation to oppose this bill. This bill would require that an application be approved if the proposed new structure provides additional wireless coverage or capacity for first responders or if the wireless support structure is not within a four-mile radius of an existing structure. Currently a locality that follows the appropriate rules can deny a structure that exceeds 50 feet, BUT this bill would amend that to 150 feet.
For reference, this bill talks about a “standard process project” as defined in 15.2-2316.3 of the Code of Virginia in dealing with cell towers.
Reasons to oppose this bill include:
- The original 50’ provision was adopted based on the FCC’s definition of a small wireless facility. Changing the height to 150’ co-mingles small wireless facilities and large-scale wireless towers.
- Localities and wireless companies currently work together to ensure public safety has capacity on new towers.
- This bill will not make a significant difference in rural deployment.
VML Contact: Michelle Gowdy, mgowdy@vml.org
Eminent Domain bills would make condemnation cases more expensive for localities
SB666 (Obenshain) Eminent domain; lost access and lost profits. Significantly expands the costs of condemning property owned by or used for a business by requiring payment for any change of access, instead of the existing loss of access and greatly expanding the ability of the landowner or business owner operating on the land to claim lost profits. The bill makes these claims apply to taking property (traditional condemnation) or damaging property (such as a change of access to a business).
In 2012, VML and interest groups hammered out the existing law on these matters. Estimating lost profits in the future becomes speculative, since a host of forces can change the profitability of a business. The 2012 compromise addressed this by limiting profits to three years. VML opposes this bill because it undoes the compromise, removes the three-year limitation, and creates other increases in cost. The likely result: if the bill becomes law the condemnation of property where a business is operated will become much more expensive.
This bill is currently in the Senate Judiciary Committee.
SB694 (Obenshain) Eminent domain. Makes the process of condemnation more expensive by requiring a locality taking land to complete a 60-year title report. The owner must be provided a copy of the title report. If the owner decides to have their own title report completed, the locality must pay the owner for that cost as well.
Furthermore, the bill requires the court to order the locality to pay the owner for a survey the owner contracts for. This would apply even in a subdivision or other place where existing surveys show the land boundaries. Effectively, the owner gets a government-provided survey, whether one is useful or not.
The bill also requires the locality to pay all expert witness fees. Under the long-term rules of eminent domain, the owner – not the government – is responsible for his or her costs. This bill removes all incentive for the owner to negotiate a price for the land to be acquired.
This bill is also in the Senate Judiciary Committee. A hearing date has not been set for either.
VML Contact: Mark Flynn, markkflynn@gmail.com
Sovereign Immunity bill to watch: Civil actions against localities and local employees
HB609 (Bourne) Civil action for the deprivation of rights; duties and liabilities of certain employers. Would create a significant change in the ability of citizens to sue local governments and local government employees. The bill would do away with sovereign immunity in suits regarding any alleged harm to a plaintiff. This would be extremely costly to all local governments and local political subdivisions. The bill was scheduled for a Monday subcommittee hearing but has not been presented to date.
VML Contact: Mark Flynn, markkflynn@gmail.com
Virginia Criteria for Virginia Telecommunications Initiative Grant bill reported from House Communications, Technology, and Innovation Committee
HB249 (Davis) Department of Housing and Community Development (DHCD) to adjust criteria regarding eligibility for a Virginia Telecommunications Initiative grant. Directs DHCD to adjust the criteria to reflect the United State Treasury’s Final Rule regarding the American Rescue Plan Act of 2021.
VML Contact: Michelle Gowdy, mgowdy@vml.org
House Commerce and Energy Committee overtime bill
HB1173 (Ware) Fair Labor Standards Act; overtime, employer liability. Replaces the current provisions of the Virginia Overtime Wage Act with the provision that any employer that violates the overtime wage requirements of the federal Fair Labor Standards Act and any related laws/regulations. This bill fixes the problem that occurred as a result of HB2063 (Mullin) from last year (see eNews June 18, 2021).
VML Contact: Michelle Gowdy, mgowdy@vml.org
House General Laws Subcommittees hears many FOIA bills (and more!)
Bills that passed
HB58 (Davis) Local Government; prohibits certain practices that would require contractors to provide benefits. No local governing body shall require a wage floor or any other employee benefit or compensation above what is otherwise required by law. The bill only applies to contracts executed after January 1, 2023, or renewals. The bill also does not prohibit localities from entering into contracts for economic development incentives which require the grantee (company) to maintain a certain stated wage leave.
HB444 (Bennett-Parker) Virginia Freedom of Information Act; meetings conducted through electronic meetings. This bill sets out parameters for public bodies to hold electronic meetings outside of the state of emergency when following rules as set out in the bill. VML, VACo, the Coalition on Open Government and the Press Association worked very hard on this bill and support it.
HB980 (Williams Graves) FOIA; exclusions to application of chapter, local administrative investigations, disclosure. This bill allows complainants property and email addresses withheld from FOIA for local code complaints pertaining to public health and safety and safety and nuisances as well as waste and recycling complaints.
HB150 (March) Virginia Freedom of Information Act; local public bodies to post meeting minutes on its website. This bill requires localities to post minutes of its meetings on its website if they have a website within seven working days of final approval of the minutes. If there is no website, copies must be available at a prominent location, the office of the clerk or the chief administrator’s office.
Other actions taken
HB307 (Freitas) Virginia Freedom of Information Act; estimated charges for records. This bill would require public bodies to make all reasonable efforts to provide records at the lowest possible cost and prior to conducting any search will notify the requestor in writing of the estimated costs. This bill went by for the week so the Delegate could work on it.
HB331 (Krizek) Virginia Freedom of Information Act; procedure for requesting records. This legislation proposes that all FOIA requests have to be by hard copy mail, they no longer can be verbal or hand delivered. VML Thanks Delegate Krizek for Striking this bill.
HB154 (March) Virginia Freedom of Information Act; public records database. This bill would have required that all public records be send to a public records database maintained by the Virginia Information Technologies Agency. VML Thanks Delegate March for Striking this bill.
HB631 (Hudson) Virginia Freedom of Information Act; closed meetings, privacy of witnesses. This bill adds a provision for closed meetings if an administrative or disciplinary hearing for wrongdoing of a law enforcement officer if they are a complainant, witness, or the subject of the hearing. VML Thanks Delegate Hudson for Striking this bill.
HB687 (Kory) Virginia Freedom of Information Act; changes definition of meeting. This bill amends the definition of meetings to say that a meeting is less than a quorum of members of a public body instead of 3 or more members. VML Thanks Delegate Kory for Striking this bill.
HB599 (Roem) Virginia Freedom of Information Act; charges for production of public records. This bill requires public bodies to provide the first 4 records requests by a requestor in a 31-day period to be free for the first 2 hours of the request; it limits the rate localities charge to a maximum salary of $33 per hour and authorizes a petition by the public body if they argue that the rate should be higher. In addition, it requires that this information be posted as a policy on the website or a written policy explaining the process of charging for records. This bill died for a lack of a second.
HB722 (Gooditis) Virginia Freedom of Information Act; meetings held through electronic communication means. This bill would allow local public bodies operating in an advisory capacity to meet electronic without a physical quorum. The public has to be afforded substantially equivalent access. This bill died in committee.
VML Contact: Michelle Gowdy, mgowdy@vml.org
Charter bills reported from the Charter Subcommittee of Senate Local Government
The following charter bills affect VML member localities:
- SB58 (Locke) City of Portsmouth
- SB91 (Ruff) Town of Clarksville
- SB92 (Ruff) Town of Blackstone
- SB97 (Surovell) Town of Occoquan
- SB99 (Hanger) Town of Grottoes
- SB164 (Peake) Town of Appomattox
- SB182 (Saslaw) City of Falls Church
- SB253 (Locke) City of Hampton
- SB274 (DeSteph) City of Virginia Beach
- SB322 (Vogel) Town of The Plains
VML Contact: Michelle Gowdy, mgowdy@vml.org
