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.