Richmond Public Schools: The Law is Clear

Sometimes, it is very frustrating to be a maven. You write and you write but nobody seems to listen. I can’t count the number of times I have explained the laws controlling the operation of the public schools in Richmond, VA, USA. And just when I think everybody understands, I see a turf war breaking out in our lovely city on the James between City Council and the School Board. City Council wants to form a committee composed of representatives of the mayor, council and school board to formulate a three-year plan for the operation of Richmond Public Schools. The School Board strongly objects to what it sees as an invasion of its jurisdiction. I don’t have time to go into more detail, so if you want to know more read these two articles. 1 2  

Now, pay attention. I will explain this once more. 

Article VIII, Section 1 of the Virginia Constitution provides:

“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.”

Article VIII, Section 7 of the constitution says:

“The supervision of schools in each school division shall be vested in a school board, to be composed of members selected in the manner, for the term, possessing the qualifications, and to the number provided by law.”

In implementing these constitutional mandates, the General Assembly enacted VA Code section 22.1-28 which provides:

“The supervision of schools in each school division shall be vested in a school board selected as provided in this chapter or as otherwise provided by law.” 

The drafters of the constitution could have chosen to place school divisions under the control of local governing bodies like city councils or boards of supervisors. That would have been logical. But they did not. They put supervision of local school divisions in school boards that are independent of local governing bodies. I assume they did so to insulate school operation from local politics.

The citizens of Richmond maintained the independence of their local school board in the City’s charter. Section 20.01 of the charter reads, in part:

“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.”

So, what about the City Council? As the City’s governing body, does it have no role to play in Richmond Public Schools? Yes, it has a role. That role has to do with providing funding for the operation of the schools. Section 22.1-93 of the Virginia Code states:

“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.”
 

The state law also mandates that the local governing body provide a minimum amount of local funding to supplement state funding for public schools. Section 22.1-94 says:

“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. Such appropriations shall be not less than the cost apportioned to the governing body for maintaining an educational program meeting the standards of quality for the several school divisions prescribed as provided by law.” 

This requirement was incorporated in Section 6.14 of the City Charter that 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.” 

But maven, surely the City Council has the statutory authority to create a committee to formulate a three-year plan for Richmond Public Schools.

Trusted reader, you have not been listening carefully. I have found no statute authorizing City Council to take such action. This is no different than two years ago, when Mayor Jones created a school accountability and efficiency task force. As I said then,

“Certainly, the mayor has appointed it. However, he can only assign to the task force authority which he has as mayor. He cannot create a committee or task force that has more authority than he has.”

Likewise with the Council’s committee. Council can create it, but it cannot assign to it authority that it does not have. 

Maven, are you really saying that City Council has no authority to make sure Richmond Public Schools is operating properly? 

Now, dear reader, you are putting words in my mouth. Of course the City Council has authority. As the appropriating body it has the implicit authority to oversee Richmond Public School’s use of the money it gives it. As part of the yearly budget process, the School Board submits its annual budget, which should explain how RPS used past appropriations and how it intends to spend the money School Board is asking for. If the Council is not satisfied with the explanations in the School Board’s budget, it has the right to ask the Chair of the Board or the Superintendent of Schools to explain in more detail.

Let me plagiarize some words I wrote two years ago:

“Despite the separation in rolls specified in state law, this maven is not advocating that the mayor and city council have no responsibility for the operation of Richmond Public Schools. On the contrary. I think that in the past some members of the city council have sidestepped issues relating to RPS by saying it is the responsibility of the school board not of the council. The condition of RPS is far too important to the city for any elected official to ever say, ‘It’s not my responsibility.’ I’m sure I have said it before, but if I haven’t I will say it loudly and clearly now: The City of Richmond will never be a great city until it has great public schools. It really doesn’t matter what else the city government does. So long as our schools are not world-class, Richmond will only be a C+ or B- city.”

So, Maven, what should we do?

Patient reader; you know that before I enrolled in the Maven Academy I was an attorney. So I know how to operate within the bounds of the law. I have two suggestions that can be implemented immediately.

1- Let the city councilmember and the school board representative in each of the city’s nine electoral districts get together to discuss how the council and board can work together to improve Richmond’s public schools. This will provide an opportunity to defuse the current dispute and to build trust between them. This trust can be brought by each back to the fully body. 

2- At least twice each year, the City Council should invite the Superintendent of Schools to meet with them to share his plans for the public schools. This meeting will also give each councilmember the opportunity to make suggestions to the Superintendent on how things may be improved. 

The city councilmember and school board representative in each district were elected by the same voters. The voters expected both people to do their statutory jobs and to work together to make Richmond become the best city it can become. It is time for these 18 people to forget blame and personalities and get on with the business of the City of Richmond.

Richmond School Funding: Déjà Vous, Again and Again and Again

My one fan out there knows that almost as long as I have been a maven I have been complaining that the City of Richmond doesn’t provide enough money for Richmond Public Schools. Rather than listing all the posts in which I have made that argument I will just refer you to the last one. 1  Guess what? It is budget season again in River City and our Mayor has cut the school board’s proposed budget by about $3.8 million. So here we are in 2014 and AGAIN the maven has to argue for more money for our children.

I have pointed out before that as a percentage of its general fund expenditures Richmond spends less on its public schools than almost any other jurisdiction in Virginia. So, to save time, I won’t say that now. I have also talked about the fact that the percentage of general fund expenditures going to Richmond Public Schools is constantly going down. This I need to talk about again. But first a little disclaimer. I find Richmond’s budget documents available on line to be confusing. In the past, when I reported to you the percentages, I relied on the pie charts contained in annual budgets. But the on-line collection is not complete so there are some years for which I don’t have pie charts. In addition, the pie charts don’t always agree with the tables contained in the budgets. Finally, because of the bi-annual nature of Richmond budgeting, there are different amounts in the documents designated as “proposed”, “amended”, “adopted” and “actual.”

Let me give you a few key numbers. For fiscal year 2009, the Mayor proposed and the City Council approved a budget that provided $161 million in general fund payments to Richmond Public Schools (RPS) out of a total general fund budget of $658.1 million. Under this budget the schools were receiving 24.47% of the total. For fiscal year 2014, the most recent year for which the council enacted a budget, the Mayor proposed and the City Council approved a budget that provided only $154.4 million to RPS out of a total general fund budget of $760.5 million. The schools’ share of total general fund expenditures has dropped to 20.2%. So how, dear reader, has this happened?

In March 2009 Mayor Jones informed City Council that, because of the economic recession, city revenues would be down considerably and that therefore the city’s payment to RPS for fiscal year 2010 would have to be reduced by 4%. The dollar reduction to RPS was about $8 million. The recession ended and city revenue increased considerably. However, neither the Mayor nor the City Council ever restored the $8 million that had been cut from RPS. As you can see from just the two years indicated in the preceding paragraph, total city general fund spending has increased by more than $100 million since fiscal year 2009 while the amount the city contributes to RPS is still more than $6 million less than it was then. 

The mayor and the chair of the council’s budget committee have argued that the percentages don’t matter; that the city is committed to its public schools; that the Mayor’s proposed increase ($1 million of the $4.8 million requested by the school board) from last year is adequate. But nobody talks about the lost $8 million. If the city is really committed to public schools the annual percentage of general fund expenditures for RPS should stay pretty constant. Yet, if the Mayor’s proposed budget is adopted by City Council, the RPS slice of the pie will be down to 20.1%. Any members of City Council who votes to approve the Mayor’s budget will be hard-pressed in the future to claim they really care about the children of Richmond.

What’s With the Petitions in River City?

While we’re talking about Mayor Jones’s proposal to develop Richmond’s Shockoe Bottom, have you noticed there are two petitions floating around the city that stadium opponents think will put an end to the mayor’s madness. As you know the drafters of the Bill of Rights guaranteed the right of the people to petition the Government for redress of their grievances. So I guess that petitions are good. On the other hand there are so many people with grievances, and in this age of instant mass communications, I am asked to sign at least a dozen petitions a day. The Federal Government itself has a website encouraging citizens to submit petitions for the president to address. But, I am sort of wondering why the need for these two new petitions. 

I haven’t seen the petitions physically yet, but I understand that they are submitted under the authority of section 3.06.1 of the Richmond City Charter. That section provides that if a petition is filed containing the signatures of 10% of the highest number of voters who have voted in the city in the past five elections (a number that is estimated to be 9,800) requesting an amendment to the city charter, then the amendment shall be put on the ballot as a referendum question for all city voters. If the voters approve the referendum, the amendment is to be submitted to Virginia’s General Assembly for its approval. The two petitions circulating today request the following amendments to the City Charter: 

1- Proposition A proposes an amendment to the Charter creating a new section 2.04.02, providing that under the City Council’s powers contained in section 4.02 of the Charter, “there shall be created and funding provided for” the Historic East End Shockoe Bottom Commission. The Commission shall prepare (within nine months of its creation) a report to the Mayor and City Council on “how best to achieve economic growth while at the same [time] preserving the vital history of [the] area including the historic record regarding those uniquely significant events having taken place in the Shockoe Bottom area of the Historic East End.” Proposition A also provides that the City Council shall take no further action concerning the mayor’s Shockoe development plan until the Commission submits its report.  

2- Proposition B proposes an amendment to section 3.06.1 of the Charter broadening the authority of a minority of members of the City Council to call for an advisory referendum on issues relating to Mayor Jones’s Shockoe development proposal. With regard to ordinances relating directly to the baseball stadium proposed by the mayor the amendment would allow 3 of the 9 council members to call for an advisory referendum. With regard to ordinances dealing with various funding options for the Shockoe development the amendment would allow 4 of the 9 council members to call for an advisory referendum. Under existing language in section 3.06.1 a Council resolution calling for an advisory referendum requires that the issue be submitted to the voters and that the results of the referendum be reported to City Council for “such further action as it may deem advisable and in the best interests of the City.” 

Reader, to fully understand the significance of these two petitions you should understand the governing philosophy of Richmond’s City Charter, our local constitution. Chapter 4.02 of the Charter provides “All powers vested in the City shall be exercised by the Council except as otherwise provided in this Charter.” This means that the City Council is the governing body of the city. Unless the Charter assigns them elsewhere, all decisions regarding the governance of the city are to be made by City Council. The Charter does create the offices of mayor and chief administrative office of the city and assigns certain functions to the persons holding those offices. It also authorizes the City Council to create departments and other subdivisions of the city and to delegate governing powers to those subdivisions. In short, the City of Richmond is not a democracy. It operates under a republican form of government. We elect our nine members of the City Council. They in turn make the decisions that govern the city. 

The Charter as presently worded provides for three instances in which specific issues may be voted on by the citizens of Richmond. Two of these are in section 3.06.1. The first paragraph of that section authorizes the City Council, presumably by a majority vote, to request an advisory referendum on any proposed ordinance or proposed amendment to the Charter, the results of which are not binding on the Council. The second paragraph permits a referendum, under the procedures I described above, on an amendment to the City Charter itself. The third referendum provision is in section 7B.05. It provides for a referendum on an ordinance authorizing the city to issue bonds if within 30 days after the City Council passes the ordinance a petition with signatures of 10% of voters is submitted to the Richmond Circuit Court. 

I firmly believe that if something ain't broken, it don’t need to be fixed. So what exactly is wrong with the Richmond City Charter that it needs to be amended now? Is the structure of the city government unsound? Is there some inherent inefficiency that can only be solved by what are essentially constitutional amendments? Is the City Council as formulated and empowered under the current Charter incapable of governing? Trusted reader, let us skip through all the arguments and get to the actual reason that opponents of the Shockoe development plan are circulating these petitions. They have been convinced, by people who speak loudly and type in capital letters, that under the current political circumstances they cannot win. They have been told that if the process is allowed to work out as envisioned by our Charter as currently worded, the mayor’s proposal will be approved by City Council. Since they think they cannot win under the current rules, they seek to change the rules. 

But, forgetting motivation, and forgetting that it is generally bad policy to amend a constitution to achieve a single issue (remember prohibition?), what will these petitions accomplish? The first thing you need to understand reader, especially if you are a citizen of River City, is that these petitions will not permit the voters of Richmond to decide whether or not they want a baseball stadium to be built in Shockoe Bottom as part of the mayor’s development plan. If someone asks you to sign either or both of these petitions and tells you it is all about letting the citizens decide whether to build the stadium, they are, to put it politely, deceiving you. There is nothing in either petition that allows that. Both petitions only change the procedures or delay actions by City Council. Nothing more. They will not allow you to decide the stadium question. Do we really want to amend the City Charter just to delay the project? 

And what of the specifics? What exactly will this Historic East End Shockoe Bottom Commission be? The petition says nothing. It says “there shall be created and funding provided for” this commission. It says it is to be created under the City Council’s general powers so I assume that the Council is being mandated to create and fund the Commission. But the petition is silent on how many members shall be on the Commission. More important it does not say who shall appoint them—the Council itself, the mayor, the chief administrative officer. And how much money is contained in “funding provide for”? How much does it need to do this job--$50,000; $250,000; $5,000,000? The proposed amendment is silent. And what will be the effect of the Commission’s report? Are we trading government by an elected City Council to government by an appointed commission? I suspect that the drafters of Proposition A gave this little thought because the really important part of the amendment is not the Commission but subsection (d), which prohibits the City Council from acting until the Commission submits its report. 

With respect to Proposition B, is it really good government to allow a minority of the members of City Council to force the court and the board of elections to put a proposition on the ballot which will only be advisory? Special elections are costly. If it is good government, why not do it for all issues; why limit it to the mayor’s Shockoe development project? Personally, I think it is not good government to allow a minority of Council to have so much power. With respect to the stadium itself, the proposed amendment would allow only three of the Council’s nine members to force a referendum. The proponents argue that the amendment is designed to effect democratic decisions. Dear reader, is it democratic to allow 1/3 of a legislative body to control its actions? 

I could go on, but by now I am probably losing your attention. If you are a citizen of Richmond you will have to decide whether to sign these petitions. In making that decision consider that these petitions will not give you a vote on whether you favor or oppose the Shockoe stadium. Then consider whether you really think that our City Charter needs to be amended so as to delay the City Council from carrying out its assigned functions. As for me, I will not sign them. They are bad government.

“Voting Rights” Attack: Has Paul Goldman Gone Too Far?

 

I met Paul Goldman in June of 2008 at the office of the City Registrar here in RVA. I was submitting my petitions to be on the ballot as a candidate for the School Board. Mr. Goldman was submitting petitions to be on the ballot as a candidate for mayor of our fair city. Neither of us was elected: I lost on Election Day; Mr. Goldman dropped out of the race and endorsed Dwight Jones for mayor. After that we were sort of Facebook friends for a while but via email rather than FB. Our contacts faded to virtually none over the years. 

Recently, CBS Channel 6 here in Richmond has engaged Mr. Goldman as sort of a political guru, in which roll he gives his comments on happenings both in the General Assembly and Richmond’s City Hall. Lately, Mr. Goldman has commented a great deal on the proposal by Mayor Dwight Jones to develop the Shockoe Bottom area of Richmond, including a new stadium for Richmond’s beloved Flying Squirrels. Mr. Goldman’s comments have been particularly aggressive toward what he refers to as the Jones-Marsh Democratic machine. (Jones is Mayor Dwight Jones; Marsh is state Senator Henry Marsh). Mr. Goldman has also gone beyond merely commenting by providing legal services to a group of Richmond citizens who oppose the Shockoe development plan; including helping them launch a petition campaign to force a referendum on the plan. 

I ought to add a few other facts about Mr. Goldman. In the past he has managed the campaigns of several candidates for high office in Virginia. He has also served as chair of the Democratic Party of Virginia. He also participated in drafting the current Charter of the City of Richmond. 

Although I have been critical on Facebook with regard to several of Mr. Goldman’s attacks on Mayor Jones and the Shockoe development plan, it was not until I read his current comment on the Channel 6 website that I decided I had to update this blog. 1 In this piece, Mr. Goldman accuses Mayor Jones, Senator Marsh and Democrats on Richmond’s City Council of deliberately depriving Richmond citizens of the right to vote on the Shockoe development plan. (With respect to Senator Marsh, this is a particularly nasty attack because Henry Marsh has devoted most of his life working to assure that all people regardless of ethnicity or economic status can exercise their right to vote.)  

In his latest piece, after pointing out the efforts of Virginia Democrats to block Republican efforts to disenfranchise voters, Mr. Goldman goes on the attack: 

This time, it is Mayor Jones and his Democratic allies denying VOTING RIGHTS to these very same WHITE residents and RACIAL MINORITIES in Richmond. 

The Richmond City Charter—supposedly guaranteed by Section 7B.05—intends to give Richmonders an absolute Voting Ability to tell the Mayor and City Council “NO WAY ARE YOU GOING TO WASTE HUNDREDS OF MILLION OF PUBLIC DOLLARS on a Shockoe Stadium” when we need this money for more pressing needs. 

The first part of Section 3.06.1 is intended to give citizens another Voting Rights option in such matters, but Richmond Democrats on City Council are ALSO DENYING THIS RIGHT TO THE PEOPLE OF RICHMOND.

 

(All of the capitalization is in Mr. Goldman’s original). 

Since Mr. Goldman is an attorney and because he is one of the principal drafters of the city charter that he refers to in the above language, I almost feel that I should simply assume that his interpretation is correct. However, because his charge that city Democrats are deliberately depriving citizens of the right to vote is so severe, I really need to give it a fact check. 

One section of the city charter that Mr. Goldman does not mention in his attack on Richmond Democrats is section 4.02. This section provides “All powers vested in the City shall be exercised by the Council except as otherwise provided in this Charter.” This section grants to City Council all governing powers in the City of Richmond, unless there is some other provision in the charter that moves that power elsewhere.  

So what about the people’s right to vote that Mr. Goldman claims is being denied? Well, first of all, the charter clearly states that it is the people of Richmond who elect both the mayor and the members of the City Council. Section 3.01, section 3.01.1. I know of no attempt by any Democrats in the city to deprive citizens of Richmond of this right to vote for mayor and members of the City Council. In fact I know that before the most recent municipal election Richmond Democrats worked hard to register as many voters as possible. 

Well Mr. Goldman says that the city charter “intends” to grant to Richmonders an “absolute Voting Ability” to tell the mayor and city council that they cannot spend taxpayers’ dollars on a Shockhoe stadium. He says that this intent is “supposedly guaranteed by section 7B.05.” What is this absolute Voting Ability that Mr. Goldman talks about?  

Chapter 7B of the charter describes the city’s ability to borrow funds by issuing bonds, notes or other obligations. Section 7B.04 sets forth the procedure to be followed by City Council in passing ordinances authorizing the issuance of bonds. This procedure is the same as in passing other ordinances except that it requires six votes to pass such an ordinance. Subsection 7B.04(a) provides further that no ordinance authorizing bonds “shall take effect until the thirty-first day after publication of notice of its adoption…” 

Section 7B.05 of the charter provides that if, within thirty days after City Council has adopted an ordinance authorizing bonds, a petition containing the signatures of 10% of the city’s voters (Mr. Goldman has calculated the number as being 9800 voters) requesting that the ordinance be submitted to the voters of the city is filed with the clerk of the Richmond Circuit Court, then the ordinance shall be put on the ballot at an election called for such purpose. I assume that this must be the “absolute Voting Ability” that Mr. Goldman is referring to. 

But, section 7B.05 does not create a right in the people to decide whether city funds should be spent on a stadium or on other needs. Section 7B.05 is limited in its scope. It applies only after the City Council has adopted an ordinance authorizing the issuance of bonds. And it grants to the citizens the right to vote on the limited question of whether those bonds should be issued only if a petition with approximately 9800 signatures is filed within 30 days.  

So, how does Paul Goldman support his accusation that Mayor Jones and his Democratic allies are “denying VOTING RIGHTS to these very same WHITE residents and RACIAL MINORITIES in Richmond”? He points out that Mayor Jones has amended his development proposal so that not all of the city payments will be financed by bonds issued by the City. Instead, some of the costs will be financed through the city’s Economic Development Authority. Mr. Goldman insists that the mayor made this change only to deny citizens the right to vote on an ordinance authorizing the issuance of bonds. In Mr. Goldman’s own words: 

“Because doing it this way ELIMINATES THE PUBLIC’S RIGHT TO VOTE DOWN WASTEFUL STADIUM BONDS, since the right to vote doesn’t apply to EDA bonds since it is not covered by the Richmond City Charter.”

I am not sure how Mr. Goldman knows that Mayor Jones and his Democratic allies changed the financing for the proposed Shockoe development for the sole reason of avoiding a possible referendum. Perhaps Mr. Goldman understands Machiavellian thinking better than I do. There may be many reasons why EDA financing or funding from other sources make more sense than issuing bonds for the Shockoe project.  

Mr. Goldman also makes the accusation that Democratic members of the City Council are denying Richmonders “voting rights” under section 3.06.1 of the city charter. This accusation is even more unfounded than the accusation I just discussed. This section provides:

 

“The Council shall have authority to order, by resolution directed to the Circuit Court of the City of Richmond, the submission to the qualified voters of the City for an advisory referendum thereon, any proposed ordinance or amendment to the City Charter.”

 

If City Council did decide to ask for an “advisory referendum”, the results of the referendum would be reported back to it for “such further action as it may deem advisable and in the best interests of the City.”  

What exactly is Mr. Goldman thinking? There are no “voting rights” here. This section merely provides City Council with the authority to ask the people what they think. The fact that the City Council has not chosen to exercise that authority does not deprive the citizens of Richmond of anything.  

I do not know why Mr. Goldman made these baseless charges against Mayor Jones, his Democratic allies (including Senator Marsh) and the Democratic members of the City Council (whom we can’t even identify because in Richmond Council members are elected in a non-partisan election). He chose to attack on the issue of voting rights (a particularly sensitive issue for Democrats) and he chose to use lots of capital letters. I assume he is very angry about something. Whatever the reason for his attack, Mr. Goldman owes apologies to Mayor Jones, Senator Marsh, members of the City Council, Richmond Democrats and all other citizens of the city.

 

The Battle of Shockoe

This maven has said nothing about the ongoing dispute here in Richmond over Mayor Dwight Jones’ plan for the redevelopment of the Shockoe Bottom area of the city, which centers on a new minor league baseball stadium. I have been silent mainly because I am split on this issue, sort of like the population of Richmond. I think the vicinity of the existing stadium (the Diamond) would be a better place for a new stadium, but my preference is not that strong. I also have serious questions whether the taxpayers of Richmond should pay for a stadium for a privately-owned entity. But, we subsidize other businesses to keep them in Richmond so why is a new stadium that different? I am also strongly swayed by those of my African American friends who argue that placing a stadium so close to where so many thousands of African slaves were imprisoned and sold as property (and where many of them died and were buried) is a disgrace to their memory. However, although I know what these friends don’t want, I have not been able to figure out what they do want other than a slogan that calls for an “historic district”. I think that we in Richmond should be forever mindful of the outrageous activities that went on in Shockoe Bottom for so many decades. But I am not sure this necessarily means that the area must remain forever as it is. And, on my third “other hand,” I am aware that the City of Richmond badly needs to expand its tax base. So, with this internal ambiguity, what was a maven to say? 

For the world outside of Richmond (and for you Richmonders who have been hibernating for the last few months)—some time past (I am too lazy to do the research to give you exact dates but exact dates are not important) the mayor of our beloved city, Dwight Jones, revealed to all of us a plan for the total revitalization of Shockoe Bottom. His plan included a new baseball stadium, a hotel, a supermarket, apartment buildings and a structure memorializing the slave trade that went on in the area in the 18^th and 19^th centuries. The plan was complete with artist renderings and financial statements. The mayor described his plan as essential to the revitalization of the Shockoe area, as well as vital to the economic expansion of the city. The mayor’s Shockoe plan was strongly connected to a more vaguely described plan to develop the area along the Boulevard where the Diamond now stands into a major commercial and residential neighborhood. A close examination of the Shockoe plan showed that its financial success counted on revenue from the Boulevard development. The mayor’s plan met both with very strong support and very strong opposition.  

The mayor’s plan cannot be implemented without the approval of the Richmond City Council. In fact, because it requires the sale of city owned property, the plan needs a super-majority to pass. Like the residents of the city, members of the council are divided on the plan. The eventual outcome will depend on those council members who have not yet decided. Although the mayor and his supporters have called the Shockoe plan an all or nothing proposition and have called for quick approval by the council, the council has been very deliberate, asking questions and holding neighborhood meetings for public input. 

This week, probably out of frustration that his proposal has not gained quick approval by the City Council, Mayor Jones raised the stakes. As reported in the Richmond Free Press 1 and repeated in the Richmond Times Dispatch 2 at a prayer meeting commemorating the issuance of the Emancipation Proclamation, the mayor said that the City of Richmond is “still 50% African-American” but there is now a majority on the City Council “that doesn’t look like us.” The mayor implied that those white members of the council who don’t back his plan do not care about creating jobs for African-Americans. The mayor’s attempt to turn this dispute into a racial issue is particularly strange because the most vocal opponents of his development plan come from the African-American community. If it turns out that the City Council does not approve Mayor Jones’ plan, he may regret that he suggested that some of them may be racists. 

The mayor may also regret the way that he has tried to implement this project. As I understand it, the mayor did not involve the City Council, as a body, in the formation of the plan. After being mayor for nearly five years, and having been reelected to a second term by a substantial majority, Mr. Jones seems to have forgotten that under the City’s charter it is the City Council, not the mayor, that is the governing body of the City of Richmond. Under the charter, the mayor is responsible “for the proper administration of city government.” He is also has several other specified responsibilities including preparing a proposed city budget for the council’s consideration. But, he is not the government. If I were a member of the City Council I would be jealous of the council’s governing authority and I just might be resentful when the mayor tells me that his plan is an all or nothing proposition and that my only options are to vote “yes” or “no.” Further, it would have made political sense to get council members involved in the planning for the Shockoe development. People who feel they have contributed to the formulation of a plan are not likely to oppose it when it comes up for a vote.

The Shockoe Bottom development plan will probably come onto the City Council’s agenda later this month. If the plan passes, the mayor needs to reach out to those who oppose a stadium in the former slave trading area by making sure that the structure commemorating this dark period in our history is one of the first to be built. He should also take the initiative in making sure that the entire area of the city from the old Manchester Docks along the slave trail up to Broad Street be designated a National Historic District. If the plan is defeated, the mayor and City Council need to get together quickly and create a new plan to redevelop the Shockoe Bottom area.

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.

 

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.