Thursday, May 19, 2011

Are Virginia Counties utilizing an unconstitutional law to fund charitable organizations?

UPDATE: Sen. Chap Petersen (D- Fairfax) has thrown in his opinion on the importance of the AG advisory opinion.  Generally, he is correct about the interpretation, and identifies a reasonable Constitutional solution.   We still will likely disagree regarding the policy of specific charitable purposes that may or may not be funded if the Constitution is amended.  We can all have that debate if the Constitution is amended.
Greg Letiecq over at periodically raises thorny legal issues.  Today he identified a fascinating one that begs for litigation.  As discussed in his post it appears local governments in Virginia may be regularly exercising unconstitutional authority in making appropriations to charitable organizations.

Below is my commentary on Mr. Letiecq’s post:

First, I agree that the power to appropriate directly to charitable institutions from the G.A. is prohibited by Va. Const. Art. IV § 16

For localities:  Localities only have those powers granted to them by the General Assembly.  The questions asked by Greg are valid and unanswered by the January AG opinion.  Va. Const. Art. VII § 3 governs the scope of authority that can be granted to localities, and states in part:

“The General Assembly may provide by general law or special act that any county, city, town, or other unit of government may exercise any of its powers or perform any of its functions. . .”

There is a distinct absence of case law analyzing Va. Const. Art. VII § 3, meaning we are left with nothing to analyze but the actual text of Va. Const. Art. VII § 3.  In my opinion, this necessarily excludes the ability to grant to localities powers the G.A. itself does not possess.  In short, Va. Code § 15.2-953 is unconstitutional to the extent the locality is attempting to exercise the authority to give money to a charity that could not qualify for receipt off funds under the narrow factors of  Va. Const. Art. IV § 16.  Even shorter:  Va. Code § 15.2-953 is unconstitutional.

Remember, it is still appropriate for a charity to provide services pursuant to government appropriations as long as the appropriation is to a government agency that subsequently farms out the payments to non-profits and for-profits to provide social services.  A prime recent example in public discussion is the provision of adoption placement services in Virginia by charities.  Nonetheless, direct contributions to charities by Counties, Cities, and Towns appear to be unconstitutional.

Way to blow the lid off this one Greg.

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