Friday, November 15, 2013

On The Confederate Flag

Earlier this week I was driving north on Boulevard. (For those of you from outside of Richmond, that is the full name of this street.) As I passed the art museum, I saw them—several people standing out front carrying Confederate flags. These people have been picketing the Virginia Museum of Fine Arts (VMFA) for two years. What is their beef? In 2011, the VMFA removed the Confederate flags that had been displayed in front of the Confederate Memorial Chapel, a church that stands on VMFA property. The VMFA says it did so to be historically accurate—the Chapel did not fly the Confederate flag during its early years. The protesters, who became known as Flaggers, considered the removal an affront to the Confederate heritage of Richmond and asserted that it was dishonoring their ancestors who had fought for the Confederacy.

This summer, when they found that they were mostly being ignored, the flaggers announced that they were going to erect the biggest Confederate flag they could find on private property abutting Interstate 95 south of Richmond. The announcement drew international attention and scorn to the City of Richmond. (Not to worry, we Richmonders are used to scorn—mainly based on the actions of the Virginia General Assembly, which meets in our fair city on the James). In any event, the erection turned out to be a bust, since this largest of Confederate flags could hardly be seen from the Interstate; at least while there was foliage on the trees. But, I wasn’t thinking of that as I passed the protesters. I was just trying to figure out what kind of mindset would have them picketing in support of the symbol of a lost cause.

If you are not from this city, perhaps you don’t know how significant is the four years—from the spring of 1861, when Virginia purported to secede from the United States, until April 1865, when the Confederate government abandoned this city—during which Richmond was the capital of the aborted Confederacy. There is a significant portion of our citizenry who look on those four years as Richmond’s golden days. We have a major thoroughfare with monuments to our pantheon of Confederate gods. (Other cities may have statues; in Richmond we have monuments.) These structures honor those we hold most sacred—(from East to West) James Ewell Brown (JEB) Stuart, Robert E. Lee, Jefferson Davis and Thomas “Stonewall” Jackson. (Further to the west there is a structure dedicated to Mathew Fontaine Maury, “Pathfinder of the Seas,” and another one for Arthur Ashe, a tennis star, but these were afterthoughts). And, on one of Richmond’s highest hills, visible for many blocks, we have erected a monolith with a statute atop it dedicated to Confederate soldiers and sailors. We also have an ordinary statue honoring A. P. Hill, a lesser Confederate officer*, and in Hollywood Cemetery we have another monument to Jefferson Davis, at the sight of his grave. 

For many people in Richmond, the period of the Confederacy is a part of Richmond’s heritage that must be celebrated. They think there is something romantic about the “Lost Cause,” and that those four years, in which the Confederate flag flew above the General Assembly building, were among Richmond’s finest hours. I assume that the flaggers are among that group.

I certainly agree that the Confederate years are part of Richmond’s history and that we must not forget them. But, these were not great years. These four years were among the darkest in Richmond’s history. These four years ended in disaster. During these four years the residents of Richmond suffered death, disease, famine and destruction. Is there something really romantic about this? Of course these years are part of our history, but they are nothing to be proud of.

And what about the members of the United States Congress, who left their posts and went south to serve in the Confederate government or in the governments of the seceding states? And the soldiers who fought on the side of the Confederacy against the United States? Are we to honor them as heroes?

This is the hard part to talk about. I know there are many people whose ancestors did serve in those capacities. I would like to honor those who lost their lives fighting for what they believed in. I do not want to condemn them. But, reader, history has been very cruel to the soldiers, sailors and civilian leaders of the Confederacy. Their actions, which may have been considered heroic and patriotic from 1861 to 1865, suddenly underwent a change in character when Lee and other Confederate generals surrendered and when the Confederate government disbanded. Because what these Confederates—military and civilian—believed in turned out to be an insurrection against the United States. What is more, their behavior constituted treason. Article III, Section 3, of the United States Constitution provides:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

From the time that the first cannon shots were fired against the United States installation at Fort Sumter, the civilian leaders and the soldiers and sailors of the Confederate States of America were “levying war” against the United States. They may have thought they were only defending their states but in fact they were attacking and killing soldiers wearing the uniform of the United States and who were fighting under its flag. This constituted treason. Under President Lincoln’s “malice toward none”, “charity for all” policy, which continued for a time after his death, Confederate civilian and military leaders were not tried for treason. This fact, however, does not change the nature of their behavior.

Reader, I recently heard an interview of the head of the Sons of Confederate Veterans by local historians. He argued that we must look at the Confederate cause no differently than we look at the American cause in our War of Independence. He said that the Confederate leaders were no different than our revolutionary leaders; they were each fighting for freedom from an oppressive government located in a distant capital. Confederate soldiers, just like American soldiers in the Revolutionary War were fighting to protect themselves and their families from tyranny; they must be honored and celebrated.

The leader of the Sons of Confederate Veterans made a very persuasive argument. However, he fails to recognize the reality of history. The simple fact is that those who fought for the cause of American freedom won their war; those who fought for Confederate freedom lost theirs. And, reader, there lies the difference. Had the militias of the southern states and the army of the Confederacy been victorious in their insurrection, they would indeed be heroes of a valiant cause. Had the Confederacy won, Jefferson Davis would be the father of his country, and towns and cities throughout the south would be named Davis. But, loyal reader, history is not what some people wish had happened. History is what actually happened. **

On occasion, I visit Shockoe Hill Cemetery or Hollywood Cemetery here in Richmond. Each contains the graves of many soldiers who fought on both sides of the Civil War. In both cemeteries I have seen the graves of Union soldiers identified by an American flag and the graves of Confederate soldiers indentified by a Confederate flag. These are the flags under which they fought and died and I think it is appropriate that their graves be adorned in this way. I also have no problem with Confederate (or British or Mexican or French flags) being flown at historic sites to recreate things as they were.

But this maven cannot agree with those who feel that the Confederate flag should be flown as a symbol of our glorious heritage and to honor those who fought on the southern side in the Civil War. When a cause has ended; when a rebellion has failed; when an attempted new nation has been destroyed; it is time to acknowledge the realities of history and bury its symbols.


*Let us not feel sorry about General Hill. After all, he does have an American military base named after him. Maybe someday the maven will write about the curious custom we have in this country of naming military bases after people who fought against the United States.

** And, had history been different in the 1770s and 1780s—had the British armies crushed our militias and the United States Army—things certainly would be different. We would be singing “God Save the Queen” and saluting the Union Jack. George Washington might be remembered as is Guy Fawkes as the treasonous leader of an unsuccessful rebellion. But, that also is not what happened.




Wednesday, November 13, 2013

Rescue The Maven—Please

I posted my first entry in this blog more than seven years ago. It was entitled “The Marriage Amendment—WWJD” and was one of two entries I wrote trying to convince people to vote against the so-called marriage amendment to the Virginia Constitution. Why did this citizen of the 20th Century suddenly decide to start writing a blog? Well, frankly, I was kind of frustrated by the fact that the Richmond Times-Dispatch never published any of my letters to the editor. One day in October 2006, I shouted, “Who needs the stinking Times-Dispatch; I will self-publish.” And, as they say, the rest is history.

I have never worried too much about who is reading James River Maven. I always write to an imaginary trusted loyal reader. Sometimes I even address the reader as the only one who is reading the blog. All was well; I was happy; and then…

This week, while using a search engine to find one of my posts, I found a page from "URLmetrics" rankng my blog. It said that James River Maven was the 3,744,686 ranked website in the United States. Let me say this another way—there are 3,744,685 websites in the country ranked higher than mine. I seem to be trending, but in the wrong direction. What a revolting development this is!

Now, I have to admit that I have no idea what the URL ranking means. Does it mean that 3¾ million websites have better content than James River Maven? Does it mean that 3¾ million websites are better written than James River Maven? Does it mean that 3¾ million websites are more frequently read than James River Maven? I do not know. But I do know that my 3,744,686 ranking equates to James River Maven having an estimated worth of $793.06. (I sure hope that doesn’t change my tax status).

A bigger man than the maven would search his soul to try to determine what is lacking in his blog. Not me! I will use the philosophy of a well-known local politician who I heard say, not too long ago, that when a candidate loses, it is not his fault but the fault of his supporters. So, I come to the inevitable conclusion that it is your fault, loyal reader, that I am not ranked higher. It is obvious to me that you simply do not read each of my entries enough times; you do not spread my fame to your friends either by Facebook or Twitter; you have not become a follower of the maven; you have not urged your friends and acquaintances to become followers. 

Trusted reader, I must turn to you to do the right thing. Only you can save the maven from the embarrassing 3,744,686th place. You need to read each of my posts at least 100 times. You must tell all your friends, both real and virtual, that James River Maven is the place to be. You need to become my follower and to urge others to do the same.

Who knows, if you come to my rescue, I might start trending in the right direction. I might even become a virus. And, maybe, just maybe, in the near future I may be ranked number 2,000,000.

Tuesday, November 12, 2013

Signs—Seven Years Later

At some time in the remote past, probably before I moved to Richmond, the Richmond City Council, our governing body, decided that advertising signs were ugly. And so they passed an ordinance declaring that such signs appearing on public property were a nuisance. That ordinance is currently in the City Code and either appears in Chapter 19, Article II of the Code (as found on the city’s website) or Chapter 38, Article III, Division 2 (as published by Municode.) It appears that the Municode version is based on a later enactment so I will reference that one.

Section 38-113 of the Code provides:

“It shall be unlawful for any person to paint, mark or write on or post or otherwise affix to or upon a public way or fixture thereon any sign or other form of commercial, noncommercial, or political advertising, promotion, solicitation, communication or display. It shall furthermore be unlawful for any person to cause or, with knowledge, permit such actions to be taken on such person's behalf.” (Certain types of signs are exempt from the ordinance under section 38-114.)

The penalty provision of the ordinance provides that anyone convicted of violating the ordinance shall be fined not less than $10 or more than $50. Each sign is considered a separate violation and each day it is displayed is considered a separate violation. Section 38-112.

Additional bite for the statute is contained in section 38-115, which states:

“Any violation of this division is hereby declared to be a nuisance. No person shall have any legal right to the continued presence of a sign in a public way in violation of this division, nor shall there be any legal remedy against any person solely for the removal from a public way of a sign which is in violation of this division. Any person may abate the nuisance created by a violation of this division without liability for doing so. If abatement is made by the city, the reasonable costs incurred in removal may be assessed against any person responsible for or benefited by the violation, and such costs shall be collected in the same manner as city taxes. For a willful violation, the city shall be entitled to recover costs, the reasonable value of attorney's fees, and punitive damages in any proceeding which it may bring to enjoin future violations.”

One thing about this nuisance ordinance seems very clear to me—it is never (or hardly ever) enforced. There are commercial advertising signs posted all over the city and they sit there indefinitely with no consequences. In the fall there are myriad political signs posted on the public way, many remaining after Election Day; and nobody seems to pay any fines and nobody seems to be billed for the cost of city employees removing those signs after the election is over.

As a lawyer, I get very upset when the legislature (in this case the City Council) goes to the trouble of enacting a law but nobody enforces it. Such abdication contributes to contempt for law by those who become aware of it. And, in the case of the sign ordinance, failure to enforce the law also deprives the city of potentially significant amounts of revenue. As this maven said seven years ago when first noticing the city’s failure to enforce the sign ordinance:

“From the fact that the city did not enforce the ordinance with respect to political signs erected during the recent campaign, I must assume that the city government is flush with money. Why else would it deliberately refuse to assess fines or collect the cost of removal from the various campaign committees that planted all the signs? When the next budget cycle comes around, let’s all remember the thousands of dollars that the city did not collect this election year.” 1

Richmond Public Schools Budget: You Figure It Out

The maven is throwing in the towel! I have spent far too much time on this, both last spring and this fall, and it just doesn’t get any better. This whole problem was caused by the Virginia General Assembly. Why should I be the one who has to bail them out?

So I am going to put all my research out there and any of you readers is welcome to come up with a reasonable solution. For any of you who can do it, I will be glad to award my virtual “You’re Obviously a Better Lawyer than Me” medal, which you can wear or frame and hang over your desk.

What is this all about? It’s about what rules should the school board, the mayor and the city council follow in formulating the annual budget for Richmond Public Schools.

For those of you who are old-time maven fans you know that since 2008 I have been criticizing the Richmond School Board for preparing budgets each year that were not based on the needs of the school system but rather on the wishes of Richmond’s mayor and city council. I pointed out that all three players in the school budget game were either unaware of, or were choosing to ignore, the requirement of state law that school budgets be based on an “estimate of the amount of money deemed to be needed during the next fiscal year for the support of the public schools of the school division.” (Virginia Code section 22.1-92, my emphasis). I have pointed out that the way the school budget has been handled in Richmond over recent years has resulted in the City of Richmond providing a constantly lower percentage of its operating budget for schools each year, a percentage that is lower than that of other jurisdictions in Virginia.

But last spring, when I started looking at the controlling statutes again, I discovered that the school board, the mayor and the city council were looking at totally different provisions of law than the maven was. I was looking at Title 22.1 of the Virginia Code entitled “Education.” The board, mayor and council were looking at Chapter 6 of the Richmond City Charter, entitled Budget. Trust me, reader; these sets of law are significantly different.

State Law:

All of Title 22.1 of the Virginia Code, including Chapter 8 on Public School Funds, was enacted in furtherance of the General Assembly’s responsibility under Article VIII, Section 1, of the Virginia Constitution, which reads:
The General Assembly shall provide for a system of free public elementary and secondary schools for all children of school age throughout the Commonwealth, and shall seek to ensure that an educational program of high quality is established and continually maintained.

The General Assembly created school districts and school boards as entities of the state, rather than agencies of local governmental units. The provisions controlling school boards are contained in Title 22.1, chapter 5 of the Virginia Code. The General Assembly intended that school budgets and school funds be treated separately from the funding for local government. The laws governing school funding are contained in an entirely separate chapter of the code from those covering local government funding, which are contained in Title 15.2, chapter 25 of the Code.

Chapter 8 of Title 22.1 of the Virginia Code is entitled “Public School Funds.” The key provisions of that chapter with regard to annual school budgets are sections 92, 93 and 94. Section 22.1-92 reads:

A. It shall be the duty of each division superintendent to prepare, with the approval of the school board, and submit to the governing body or bodies appropriating funds for the school division, by [April 1] the estimate of the amount of money deemed to be needed during the next fiscal year for the support of the public schools of the school division. The estimate shall set up the amount of money deemed to be needed for each major classification prescribed by the Board of Education and such other headings or items as may be necessary.

*                      *                      *.

B. Before any school board gives final approval to its budget for submission to the governing body, the school board shall hold at least one public hearing to receive the views of citizens within the school division. A school board shall cause public notice to be given at least 10 days prior to any hearing by publication in a newspaper having a general circulation within the school division. . .

Section 22.1-93 provides:

Notwithstanding any other provision of law . . . the governing body of a municipality shall prepare and approve an annual budget for educational purposes by May fifteen or within thirty days of the receipt by the municipality of the estimates of state funds, whichever shall later occur. Upon approval, each local school division shall publish the approved annual budget, including the estimated required local match, on the division's website, and the document shall also be made available in hard copy as needed to citizens for inspection.

Section 22.1-94 states:

A governing body may make appropriations to a school board from the funds derived from local levies and from any other funds available, for operation, capital outlay and debt service in the public schools. . . .The appropriations may be made on the same periodic basis as the governing body makes appropriations to other departments and agencies.

Sections 92 and 93 were reenacted by the General Assembly as recently as 2011.

In sum, these provisions require:

1- That the Superintendent of Schools, with the approval of the school board, submit to the local governing body—in Richmond, this would be the City Council—no later than April 1 of each year an estimate of the amount of funds that will be necessary to operate the public schools in the upcoming year. This estimate shall use the classifications established by the state Board of Education. These classifications are (i) instruction, (ii) administration, attendance and health, (iii) pupil transportation, (iv) operation and maintenance, (v) school food services and other noninstructional operations, (vi) facilities, (vii) debt and fund transfers, (viii) technology, and (ix) contingency reserves. (Virginia Code section 22.1-115)

2- That before adopting its budget, the school board shall hold at least one public meeting and that it shall give ten days notice before that meeting.

3- That the local governing body—in Richmond, the City Council—shall prepare and approve an annual budget for educational purposes by May 15 (or within 30 days of receiving an estimate of state funds that the school district will receive in the following school year.)

4- That the local governing body may appropriate local funds to the school board (to supplement funds received from the state) for operation, capital outlay and debt service of the school district.

(The only strange requirement in this legislative scheme for public school budgeting is the second one. As indicated in the quote above, section 22.1-92(B) requires the school board to hold a public meeting before approving its budget, but the statute nowhere requires the school board to prepare a budget.)

City Charter:

In enacting the Richmond City Charter, the General Assembly appears to treat the school board as a special entity within the city government. Section 20.01 of the Charter provides:

The School Board shall consist of nine trustees [sic]. One trustee shall be elected from each of the nine Council districts and shall be a qualified voter of that district.

The time of election and terms of members of the School Board shall be the same as the time of election and terms of the members of the Council.

Trustees shall take office July 1 following their election.

Except as provided in this Charter the School Board shall have all the powers and duties relating to the management and control of the public schools of the City provided by the general laws of the Commonwealth. None of the provisions of this Charter shall be interpreted to refer to or include the School Board unless the intention so to do is expressly stated or is clearly apparent from the context.

The laws respecting the preparation and approval of budgets in the City of Richmond are contained in Chapter 6 of the Charter. Section 6.02 provides:

On a day to be fixed by the council, but in no case earlier than the second Monday of February or later than the seventh day of April in each year, the mayor shall submit to the council: (a) separate current expense budgets for the general operation of the city government, for the public schools and for each utility as defined in Chapter 13 of this charter; (b) a budget message; and (c) a capital budget.

Section 6.03 states:

It shall be the duty of the head of . . . each board or commission, including the school board . . . to provide, at such time as the mayor may prescribe, estimates of revenue and expenditure for that . . . board. . . for the ensuing fiscal year. Such estimates shall be submitted in a form as determined by the mayor. . . . The mayor shall . . . make such revisions in such estimates as he/she may deem proper, subject to the laws of the Commonwealth relating to obligatory expenditures for any purpose, except that in the case of the school board, he/she may recommend a revision only as permitted by § 22.1-94 of the Code of Virginia or any other provision of general law not in conflict with this charter.

Section 6.05 provides:

For any fund, the total of proposed expenditures shall not exceed the total of estimated income plus carried forward fund balance.

Section 6.09 provides:

A public hearing on the budget plan as a whole shall be held by the Council within the time and after the notice provided for hearings on ordinances by Section 4.10 of this Charter, except that the notice of such hearing shall be printed in a newspaper published or in general circulation in the City.

 Section 6.11 states:

Not later than the thirty-first day of May in each year the council shall adopt the budget, the appropriation ordinances and such ordinances providing for additional revenue as may be necessary to put the budget in balance.
And, section 6.14 provides:
It shall be the duty of the school board to submit its budget estimates to the mayor at the same time as other departments and in the form prescribed by the mayor. The mayor and council may take any action on the school budget permitted by § 22.1-94 of the Code of Virginia or any other provision of general law not in conflict with this charter. The school board shall before the beginning of the fiscal year file with the director of finance its budget as finally revised and its appropriations based thereon.

In sum, these provisions of the city charter provide:
1- That the School Board [section 6.14] (or the head of the School Board [section 603]) submits to the Mayor budget estimates [section 6.14] (or estimates of revenues and expenditures [section 6.3) in the form and at the time required by the Mayor.
2- That the total of proposed expenditures for any fund shall not exceed the estimated expected income plus any balance carried forward.

3- That the mayor may make changes in the school board estimates consistent with state law.
4- That, by a date specified by the City Council, the Mayor shall submit separate current expense budgets for the city government and for the public schools.
5- That the City Council holds a public hearing on the “budget plan.”
6- That the City Council shall adopt the budget and any ordinances necessary to balance it by the end of May.

Side by side:
Comparing the state and city provisions reveals several inconsistencies. Some of these inconsistencies only relate to the date things need to be done. The substantive ones are:
1- The state law requires the submission to the governing body of the local jurisdiction of an estimate of the needs of the school system. The city code has no such provision.
2- The state law requires the use of classifications established by the state Board of Education. The city code requires that budget statements be in the form specified by the mayor.
3- The state law provides that the school board’s budget be submitted directly to the governing body. The city code provides that the school board’s budget be submitted first to the mayor who may make changes before submitting it to the City Council.
4- The state law requires the governing body to prepare and approve an annual budget for educational purposes. The city charter requires the Mayor to submit to the City Council a separate budget for public schools. However, the charter indicates that the council is to adopt a single budget for the city including the public schools.
Both the Virginia Code provisions and the city charter provisions were enacted by the Virginia General Assembly. And yet, they are in conflict. So, what do we do about these conflicts?
When a court has to apply two statutes that appear on their surface to be contradictory, it relies on a “legal fiction.” That fiction assumes that in enacting new legislation the legislature is fully aware of all other laws it has ever enacted and intends the new legislation to be compatible with those laws. In other words, the law does not favor implied repeals. It is only when the court finds that it cannot give both statutes full effect that it relies on one of two principals of statutory interpretation:
1- Later in time prevails: The assumption is that the legislature intended its most recent pronouncement to be controlling;
2- Specific controls over general: The assumption is that the legislature intended its more specific pronouncement to be an exception to the general statute.
This approach, however, makes no sense in the current instance. Merely, choosing which of the conflicting statutes should control will not resolve the basic problem. Does the General Assembly want the Richmond School Board to operate as other school boards in the Commonwealth, that is, as an instrumentality of the state that also receives funding from the City of Richmond; or does the General Assembly want the school board (for budget formulation purposes) to be an entity of the City of Richmond that also receives funding from the Commonwealth?

So, the maven has to abdicate his responsibility on this issue. I strongly recommend that the Richmond School Board and/or the City Council and/or the Mayor take this issue back to the General Assembly for resolution. I also recommend that our local senators and delegates make sure this issue is resolved when the General Assembly reconvenes in 2014.


Tuesday, November 05, 2013

Richmond School Board: Let the City Council and the People Know What You Need

According to Zach Reid’s article in today’s Richmond Times-Dispatch1, the Richmond School Board is seeking the help of the citizens in setting its priorities in formulating the budget for operating Richmond Public Schools (RPS) for the fiscal year 2014-15. The board will seek input using surveys both in writing and on the web. The input received will be “vetted” at a special budget meeting on November 23.

This maven congratulates the board on this approach. In providing services, it is always wise for an enterprise to seek the views both of its customers (families of RPS students) and its owners (the taxpayers of Richmond). On an issue as important as the future of our children we all should cooperate by participating in the budget survey.

The TD article also states that the RPS staff has already been doing its homework and has created a list of needs of the school system and has prioritized them. This certainly will help the board when it gets into the deliberative part of formulating the budget. But, it will also help the Interim Superintendent and the board comply with a provision of state law, which has not been followed in the recent past.

Section 22.1-92 of the Code of Virginia provides:

A. It shall be the duty of each division superintendent to prepare, with the approval of the school board, and submit to the governing body or bodies appropriating funds for the school division, by [April 1] the estimate of the amount of money deemed to be needed during the next fiscal year for the support of the public schools of the school division. The estimate shall set up the amount of money deemed to be needed for each major classification prescribed by the Board of Education and such other headings or items as may be necessary.

(The classifications prescribed by the state Board of Education are (i) instruction, (ii) administration, attendance and health, (iii) pupil transportation, (iv) operation and maintenance, (v) school food services and other noninstructional operations, (vi) facilities, (vii) debt and fund transfers, (viii) technology, and (ix) contingency reserves. (Virginia Code section 22.1-115)). This mandate, which is not inconsistent with any provision of the Richmond city charter, allows both the governing body (the City Council) and the citizens to know at the beginning of budget preparation what the superintendent and board estimate they need to run the school system. The only thing in the state statute that is problematic is the deadline for submission of the statement. In light of the budget schedule set out in the Richmond city charter, it would make more sense for the superintendent to submit the estimate to the City Council no later than the middle of January.

Therefore, I recommend that the Richmond School Board direct the Interim Superintendent to begin working on the mandated estimate, so that it will be ready to be submitted to the City Council by January 15, 2014.


Thursday, October 31, 2013

The Real Mark Obenshain: What his daughter Won’t Tell You

The Mark Obenshain we know is the one we see in his TV ads. He is the nice guy, with the nice family and a nice suburban home. He has an attractive wife and a cute daughter who is always defending him from the evil opponent who issues lies about him in his campaign. She accuses the opponent of not protecting women and flashes a bill reference number to prove it (although it disappears from the screen so fast I still don’t know what the bill is). And the media-produced Mark Obenshain is the one that appears to be in a dead heat with his opponent Mark Herring as the last hours of the campaign tick away.

But there is another Mark Obenshain. That is the Obenshain his daughter won’t talk about. That is the Obenshain who has consistently voted for right wing conservative legislation. That is the Obenshain who has earned the endorsement of many right wing conservative groups and low scores from progressive groups. That is the Mark Obenshain you need to meet.

Mark’s Supporters:

Let’s take a look at the groups that support Mark Obenshain:

Republican Liberty Caucus of Virginia: The Caucus has endorsed Obenshain’s candidacy. As it describes itself, “the Republican Liberty Caucus of Virginia exists to promote individual liberty, limited government, and free enterprise within the Republican Party.” The national Caucus represents the extreme right-wing of the Republican Party, favoring reduced government intrusion, lower taxes, elimination of federal agencies, less regulation, a strong national defense with fewer military bases abroad, and no foreign aid. The Republican Liberty Caucus is working to make the Republican Party even more conservative than it already is.

National Rifle Association Political Victory Fund: The NRA-PVA has endorsed Obenshain’s candidacy based on the votes and positions he has taken while in the General Assembly. The NRA-PVA has also endorsed Obenshain’s running mates Ken Cuccinelli and Earl Jackson.

Family Foundation of Virginia: Based on his voting record, Obenshain has received a 100% rating from the Foundation. For those who are not familiar with the Foundation, I quote from one of my earlier posts:

As for the Virginia Family Foundation, its website indicates that its “vision is to establish a Commonwealth of strong families who are guided by faith and protected by a principled government.” The Family Foundation’s five-year plan seeks to 1- Establish Virginia as the most pro-life state in the nation. 2-Protect the institution of traditional marriage. 3-Reinforce the rights of parents to make life-altering decisions in their children’s lives. 4-Limit the undue burden placed on families by state government. 5- Reestablish Virginia as the national model for religious liberty. In the area of education, the Virginia Family Foundation favors tax credits for families “that choose non-public schools.” 1
To receive the 100% rating from the Foundation, Obenshain had to vote the right way on all 20 pieces of legislation that it supported. So Mark voted (for brevity I have omitted some of the votes):

a- in favor of HB321 in 2012, which gave a tax credit to corporations and individuals who contributed to scholarship programs that financed poor children attending private schools;

b- in favor of HB462 in 2012, which requires a woman to undergo ultrasound imaging before undergoing an abortion.

c- in favor of SB349 in 2012, which allows a private adoption agency to refuse to participate in an adoption that violates its written religious or moral convictions.

d- against SR27 in 2013, and thus against the confirmation of Judge Tracy Thorne-Begland.

e- against HB2313 in 2013, which created a new funding mechanism for transportation projects in Virginia. (The Foundation opposed because it resulted in a net increase of taxes).

f- in favor of SB1074 in 2013, which allows student organizations at state colleges or universities to discriminate on the basis of religious, political or philosophical beliefs.

g- in favor of an amendment to HB1900 in 2013, which prohibited insurance companies participating in exchanges under the Affordable Health Act from providing abortion coverage.

h- against SB701 in 2013, which prohibited discrimination on the basis of sexual preference.

i- in favor of HB1112 in 2012, which would repeal the requirement of vaccination against human papillomavirus for female children.

j- against HB62 and SB826 in 2012, which would have repealed the provision of law that allows state Medicaid funds to pay for an abortion when a doctor certifies “that the fetus would be born with a gross and totally incapacitating physical deformity or mental deficiency.”

k-against SJ130 in 2012, which would have ratified the Equal Rights Amendment to the United States Constitution.

l- in favor of SJ287 in 2013, which would amend the Virginia Constitution to authorize “prayer in private or public settings, on government premises, on public property, and in all public schools” The amendment would also require the display of the Ten Commandment in all public schools.

American Conservative Union: Obenshain received a 100% rating from the Union which describes itself in these words:

“For more than forty years, ACU has served as an umbrella organization harnessing the collective strength of conservative organizations fighting for Americans who are concerned with liberty, personal responsibility, traditional values, and strong national defense…As America’s premier conservative voice, ACU is the leading entity in providing conservative positions on issues to Congress, the Executive Branch, State Legislatures, the media, political candidates, and the public.”

The Union is the host of the annual CPAC conference.

Marks Opponents:

These are some of the groups that oppose Mark Obenshain:

NARAL Pro-Choice Virginia: Obenshain received a 0% rating from this organization.

Our mission is to develop and sustain a constituency that uses the state-level political process in Virginia to guarantee every woman the right to make personal decisions regarding the full range of reproductive choices …”

Virginia Education Association: Obenshain received a 0% rating from the VEA.

"The mission of the Virginia Education Association is to unite our members and local communities across the Commonwealth in fulfilling the promise of a high quality public education that successfully prepares every single student to realize his or her full potential. We believe this can be accomplished by advocating for students, education professionals, and support professionals.”

Some of Mark’s Recent Votes:

2013:  Obenshain voted against HB1907, which increased the fine for driving while texting.

            Obenshain voted for SB1335, which prohibited the disclosure of information about persons authorized to carry concealed weapons.

            Obenshain voted for SB1256, which provides that a photo-ID is the only form of identification that will permit a person to vote in Virginia.

            Obenshain voted for SB721, which required drug testing for certain welfare recipients.

            Obenshain voted against SB975, which prohibited smoking in a car containing minors.

            Obenshain voted against SB736, which requires drivers or passengers in cars to wait for a “reasonable opportunity” to open doors on the side adjacent to moving traffic.

            Obenshain voted for SB1335, which prohibited the disclosure of information about persons authorized to carry concealed weapons.

2012:  Obenshain voted for HB48, which allows a resident to use deadly force against an intruder, if the intruder commits an “overt act” and the resident believes he is in imminent danger of physical injury.

            Obenshain voted for HB940, which repealed the limit on purchasing one hand-gun in a 30 day period.

 And, so we have a portrait of the other Mark Obenshain; the one his daughter will not talk about. This is the Obenshain whose voting record has made him the darling of all the ultra-conservative groups in Virginia. This is the Obenshain who has not earned the votes of either Democrats or Independents in next Tuesday’s election. He has also not earned the votes of mainstream Republicans who want to save their party from the extremists on the right who have been controlling it for the past several years. The only intelligent choice next Tuesday is to vote for the other Mark—Mark Herring for Attorney General.


Wednesday, October 30, 2013

Will the Real Manoli Loupassi Please Stand

 First, a few disclaimers: 1- I do not live in the 68th House of Delegates district, so Manoli Loupassi is not my delegate; 2- Mr. Loupassi is a Republican so it would have to be a strange combination of circumstances that would lead me to support him in a political race; and 3- I opposed Mr. Loupassi’s election campaign in 2007 1 (although my opposition then was based mainly on the hateful campaign he was running.

On the other hand, Manoli seems a nice enough guy. I have met him several times and we have always been civil to each other. I used to enjoy watching him preside over the Richmond City Council back when he was its president. And, Mr. Loupassi always presents himself as one of those reasonable Republicans, not a Tea Party, NRA, Family Foundation of Virginia right-wing Republican. This presentment, you may argue, is negated by the facts that Manoli has been endorsed for reelection by the NRA and scored 88 on the Family Foundation’s rating of legislators in the last section. But, as I long ago learned, words are cheap (perhaps that is why I use so many of them). For a legislator running for reelection, it makes more sense to look at his or her voting records.

So let’s look at Manoli’s voting record while in the House of Delegates:

Issues relating to women:

In 2011, Manoli voted for HB2434, which expressed the intent of the General Assembly that the state establish its own health benefits exchange (under the Affordable Care Act) that would exclude abortion coverage from all insurance offered in the state (with stated exceptions).

In 2012, Manoli voted for HB462 and SB484, both of which require a woman to undergo ultrasound imaging before undergoing an abortion.

In 2012, Manoli voted for HB62, which would have repealed the provision of law that allows state Medicaid funds to pay for an abortion when a doctor certifies “that the fetus would be born with a gross and totally incapacitating physical deformity or mental deficiency.”

In 2013, Manoli voted for HB1, which provided that “The life of each human being begins at conception.” and that “Unborn children have protectable interests in life, health, and well-being.”

 Issues relating to firearms: (Most legislation attempting to place limits on gun purchases, ownership or use are never voted on by the full House of Delegates because they are killed by the NRA-controlled Committee on Militia, Police and Public Safety)

In 2010, Manoli voted for HB885, which permits a person to carry a handgun in a motor vehicle or vessel, if the weapon is secured in a compartment or container.

In 2010, Manoli voted for HB505, which allows a concealed weapon to be carried into a restaurant or club in which alcoholic beverages are served, so long as the gun carrier does not drink.

In 2012, Manoli voted for HB48, which allows a resident to use deadly force against an intruder, if the intruder commits an “overt act” and the resident believes he is in imminent danger of physical injury.

In 2012, Manoli voted for HB940 and SB323, which repealed the limit on purchasing one hand-gun in a 30 day period.

In 2013, Manoli voted for SB1335, which prohibited the disclosure of information about persons authorized to carry concealed weapons.

Other Issues:

(Photo-ID) In 2013, Manoli voted for SB1256, which provides that a photo-ID is the only form of identification that will permit a person to vote in Virginia.

(Adoption) In 2012, Manoli voted for SB349, which allows a private adoption agency to refuse to participate in an adoption that violates its written religious or moral convictions.

(Legal Presence) In 2012, Manoli voted for HB1060, which requires Virginia law enforcement personal to ascertain whether each person they arrest is in the country legally.

(Employee Retirement) In 2012, Manoli voted for HB1129, which reduced retirement benefits for Virginia state employees.

(Congressional Districting) In 2012, Manoli voted for HB251, which established districts for Virginia’s 11 representatives that strongly favor Republican incumbents.

(General Assembly Districting) In 2011, Manoli vote for HB5005, which established districts for the Virginia Senate and House of Delegates that strongly favored incumbents, including himself.

So, trusted reader, I have shown you some of Manoli Loupassi’s votes. And I ask you, is Manoli the reasonable Republican that he would like you to believe he is. Or has he voted consistently to justify his endorsement by the NRA and his high score by the Family Foundation? To me, he seems the wrong man to represent Democrats and Independents in the 68th District. He is also the wrong man to represent Republicans who want to reclaim their party from the Tea Party wing that is pushing their party “to the right, ever to the right…”

Tuesday, October 15, 2013

School Board Needs to Think Outside the Box

This maven gave out a little gasp when I read this in today’s Richmond Times-Dispatch: “Next schools chief to get more pay.” 1 My gasp turned to a moan when I read the sub-headline, “Richmond School Board sets minimum salary of $225,000.” Now, don’t get me wrong. As a taxpayer I am not opposed to paying people what they are worth. But, it seems that our beloved Richmond Nine are agreeing to a minimum salary that is $47,000 more than we paid our last superintendent. That is an increase of 26%. I am wondering how many home runs or what kind of low ERA would justify a 26% pay increase in the free agent market. But, what do I know of the market for urban school chiefs?

However, I am a bit disappointed that the board so easily agreed to the recommendation of their hired recruiting consultant that the new superintendent’s salary must begin with a 2. Isn’t this the school board that was so upset at the interim superintendent’s recent performance improvement plan because it wasn’t visionary and called for nothing new? Why isn’t this board willing to think outside the box when it comes to setting the compensation of its next superintendent?

A story: During my last summer in law school I worked as a legal intern for NASA. This was 1969, and I was fortunate to be with NASA during the summer of the first moon landing. But, I did do some work and I also learned some history. I learned that after the Soviets got a big first step in the space race, NASA was created with an implicit mission statement that failure was not acceptable. So, NASA rejected the traditional Department of Defense contracting model under which contractors received the same compensation regardless of how well they performed. Instead they adopted an incentive contracting model under which a contractor’s compensation depended on how well it did its job.

For example, if a contractor was hired to build a third-stage rocket to be completed by, let’s say, December 31, 1962, the contract set a base compensation for the contractor building the rocket. However, if the contractor delivered it before the target date it earned an incentive bonus. On the other hand, if it missed the target date it suffered a penalty. Likewise, if the rocket performed flawlessly the contractor earned another bonus. However, if it did not perform flawlessly the contractor suffered a penalty. Incentive contracting gave contractors a strong stake in the success of whatever NASA program they were working on.

What if, instead of simply setting the new superintendent’s salary at some figure beginning with a 2, the board insisted on a contract in which the superintendent’s compensation depended on how well s/he did the job? Why not a contract that sets a base salary but provides for bonuses if the superintendent successfully moves RPS toward greatness and penalties if the school system does not improve? I am sure that the board and a superintendent can reach agreement measures, based perhaps on the Objectives of the 2010-2015 RPS Strategic Plan. Using this kind of incentive contracting would make the next superintendent more than just an employee. He or she would be a partner in this city’s mission of creating a first rate school system for our children. 

But, you may ask, what if a candidate doesn’t want to work under a contract where compensation is based on how well he or she does the job? I reply with a question. Do we want a superintendent who is not so sure of success that she or he is willing to agree to an incentive contract?


Monday, October 14, 2013

Don’t Negotiate, Mister President

My neighbor (we both live in the Richmond Metropolitan Area) and majority leader in the House of Representatives, Eric Cantor, appeared as a guest columnist this week in the Richmond Times-Dispatch and lambasted the President of the United States for his unwillingness to negotiate with the Congress on issues relating to the federal budget and the national debt. 1 That’s what Mr. Cantor says, but if you read his opinion carefully you will see that his real complaint is that the president has not negotiated on its terms with one political party in one chamber of the Congress. But, let us not quibble. There have been a goodly number of people out there who have adequately criticized Mr. Cantor’s guest column. That is not what this maven wants to talk about.

In his column, Mr. Cantor asserts that many of this republic’s presidents have been faced with a Congress controlled by an opposition party and that all of them have been successful leaders because they have negotiated with that opposition. Only President Obama refuses to negotiate and is therefore a bad leader. I could do an exhaustive study to check on Mr. Cantor’s accuracy. After all, this country has been blessed with lots of mediocre and bad presidents and many of them did not lead successfully at all. But it is not for this maven to challenge this historical conclusion uttered by the product of one of Richmond’s finest private schools. And again that is not what I want to talk about. 

What I do want to talk about is this sentence from Mr. Cantor’s guest column: “The president not only has refused to negotiate on issues of debt and spending but also has mocked the very idea of engaging with Congress.” Again, I will agree with Mr. Cantor’s assessment, although as a life-long and loyal Democrat I could argue. What concerns me is Mr. Cantor’s belief that this president, or any other president, has a constitutional or any other responsibility to negotiate with congressional leaders of the opposition party. I certainly cannot find such a responsibility in the Constitution.

What I find surprising is that the drafters of the Constitution said so little about the legislative process. Although there is lots of space in the Constitution dedicated to setting forth the extent of the powers of the Congress, this is all the Constitution says about how legislation is to be enacted:  

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.”

Article I, section 7.

Nowhere is there mention of the actual legislative process—that one chamber enacts a bill and sends it to the other chamber; that the other chamber can agree with the bill, can reject the bill, can substitute its own bill; that if the chambers are not in agreement they will meet in conference, and that only when each chamber passes the bill in identical language is it sent to the president for his approval or veto. (I suppose the drafters assumed that the process was implicit in the language they used and didn’t need to be specified.)

But, Mr. Cantor, nowhere in this description of the legislative process does the Constitution state that a president has any roll other than approving or rejecting a bill sent to him by the Congress. There is no mention of him or her being required to negotiate with leaders of the opposition party. However, maybe we have to look elsewhere in the Constitution to support Mr. Cantor’s belief. Let’s look at the article dealing with the powers of the executive branch.

The Constitution says:

“He [the president] shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper…”

Article II, Section 3.

So, the president shall report to the Congress on the “State of the Union”, may recommend legislation to them, may “on extraordinary Occasions” call them into special session, and if they cannot agree he can adjourn them. But, again, there is no mention of negotiation.

I am unable to tell when the practice of the president negotiating with members of the Congress began. Mr. Cantor says that as recently as 1995 President Clinton and Speaker of the House Gingrich worked overtime to reach a bipartisan agreement that ended a debt/government shut down crisis at that time. But he does not say “as early as”, so we don’t know who was the first president to do so.

The idea that a president should participate in legislative negotiations as the head of his party is not in the system that the drafters of the Constitution designed for our republic. In fact, it is more like the British system in which the Prime Minister is both head of government and head of his or her party. The drafters, instead, based our system on separation of the legislative, executive and judicial functions. Article I, section 1 of the Constitution says “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”  Article II, section 1 says “The executive Power shall be vested in a President of the United States of America.” Article III, section 1 states “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

The Constitution provides for three separate branches of government that interact only in the few instances that the Constitution specifies. Therefore, for a president to negotiate over legislation with congressional leaders changes the delegate balance of power that the drafters so carefully structured. 

But, Maven. Why mess with something that is working. What is the downside with the president and the Congress getting together to work out the terms of legislation? 

First, looking at recent history, especially the last several weeks, demonstrates that the negotiation process is not working.  

Second, allowing the president to participate in the legislative process gives him or her greater power than the Constitution envisioned. Making the president a kind of super legislator contradicts the Article I language quoted above that all legislative powers should reside in the Congress. The careful structure of separation of powers allows the president to propose legislation at the beginning of the process and to approve of or veto legislation passed by the Congress at the end, but not to participate in the deliberations involved in its enactment.

Third, there is only one President of the United States. She or he is elected by voters in all of the states. Each member of the House of Representatives is elected by only one four hundred thirty fifth of the American electorate. Each Senator is elected by the voters in only one of fifty states. The party leaders in each chamber, including the Speaker of the House, are chosen only by the members of their own party, usually for having survived longer than the other party members. Negotiations between a president and congressional leaders therefore are necessarily between people of unequal power.

Fourth, in the present historical context, we have a president who is personally detested by a significant minority of the population. That minority has managed to elect members of the Congress both in the House and the Senate. These members seem to be more concerned with weakening this president and in depriving him of any historical legacy than in governing. In this context, having the president participate in negotiations makes it less likely that they will succeed, because the motivation of some of the negotiators will be to embarrass the president rather than to reach a reasonable compromise. 

So, this maven recommends that the president return to the constitutionally described process and refrain from negotiating with members of Congress on the content or language of legislation. On the other side, the Congress should move back to the constitutional process and stop pulling the president into the legislative process. In each chamber, if there is disagreement on legislation, the leaders of each party should negotiate with each other to try to reach agreement. If the two chambers disagree on legislation, their differences should be ironed out in a conference. This process has worked for centuries and can work again if implemented.