Priceless ... and Possibly Unconstitutional?

The members of the General Assembly's House and Senate Education Committees and the various subcommittees, would do themselves and the citizens of Richmond a huge favor if they were simply to ask Virginia Attorney General Mark Herring for an official opinion concerning the constitutionality of House Bill 2253 and Senate Bill 1370.  [Click here HB2253 to read the House Bill and here SB1370 to read the Senate Bill and track the status of each.]

The ostensible purpose of these two bills, introduced last week by Sen. John Watkins, R-Powhatan, Del. Delores L. McQuinn, D-Richmond and co-patroned by Del. Joseph D. Morrissey, I-74th, is to rescue the question of which City of Richmond Public School (RPS) buildings to close from the dreaded jaws of "politics."

Known by the awkward and laughably lofty nomenclature, "The Richmond City Public Schools Learning Excellence by Aligning Public Schools Commission," these bills propose to create a "Brac Commission" of a sort that would include two members each to be appointed by the Richmond School Board, Richmond City Council and Richmond Mayor, Dwight C. Jones. Those six people would then choose a seventh member who would serve as chairman.

In an Orwellian leap of logic and a display of “newspeak,” the patrons and supporters of these bills maintain that they only want “to help” the Richmond School Board members remove the taint of politics from their deliberations concerning school closures.  Their solution?  Yup, create another layer of bureaucracy and commission even more studies of the problem.
Seriously, do the math, folks. The Mayor chooses two. City Council picks two, and now that the Mayor Jones controls council, he winds up with four votes. The commission then elects the chairman, so the Mayor wins five to two, at least. As W.C. Fields famously remarked, "Easy as taking candy from a baby."

Not only did the news about the filing of these bills take several school board members by surprise, but it has angered parents across the city.

Judging from comments posted on Face Book and elsewhere, many suspect these bills are evidence of a "power grab" by Jones and some members of the Richmond City Council who want to stall the process of fixing dilapidated schools, and leaking roofs by adding yet another unnecessary layer of political players to make the hard decisions. A sampling of comments: 
  • "There is no way in the world that the mayor's pick for Council president, Michelle Mosby, just sat up in bed one morning and said I think this is the right thing to do. City Council needs to clean its own house before they try to take over the school system." 
  • "We at last have a School Board that wants to reform our schools, a Superintendent who is responsive to the community and now the Mayor and some members of the City Council are more concerned with this disgusting power grab than they are with making our schools right."
  • "This is a brazen attempt to add another layer of bureaucracy to city government in order to yank power away from the people. I'm disgusted by the city administration that they would target our town at the state level -- an end run around School Board."
  • “Our School Board was elected to oversee and make decisions for our schools. We have a facility task force and the Superintendent's office has a good team. School Board and School Administration work closely with the schools and the people." 
As the news hit the fan this past week, Mayor Jones' press officer, Tammy Hawley, began telling reporters that the proposal comes from the City Council members -- and not the Mayor's office.  The legislation further requires the commission to visit every school at least once (!) and calls for a report to the mayor by Dec. 1, 2016, or just about a month after the next elections in the city. 

School Board vice chair, Kristen Larsen (4th-District), recalled that she and School Board Chair Donald Coleman (7th-District) did have a brief discussion with city and state officials shortly before Christmas, but that her takeaway from that meeting was that the issue would not be raised for at least a year. She said, " ... I never expected that this proposed legislation was imminent." 

RPS School Board members Kimberly Gray (2nd-District) and Jeffrey Bourne (3rd-District) each say they were shocked by the news. "School Board members should not be learning about proposed legislation from news reporters. School Board members need to be allowed to do the job we were elected to do," she said.

Likewise, Bourne said that he was "stunned that anyone would patron a bill without first speaking with the full School Board. Our parents and employees deserve more respect than this. "

He noted that what is proposed here "quite possibly conflicts with Virginia's Constitution."

The proposed legislation would also create a city-controlled trust that would be funded, at least in part, by the sale of surplussed school properties. Another disturbing element to the legislation is that there is no requirement that any of these individuals actually live in Richmond. 
Not only does the proposed legislation appear to sidestep School Board and parental input, but it also flies in the face of long established case law in Virginia. But don't take my word for it.

Consider instead the words of Judge J. Harvie Wilkinson, III, of the U.S. Court of Appeals for the Fourth Circuit. In the opinion in Bacon v. City of Richmond, a case involving the Americans with Disabilities Act, Wilkinson wrote:

"Furthermore, under Virginia law, the City of Richmond is vested with bare legal title and thus the owner of school buildings in name only. Equitable title to school property rests in the hands of the School Board. It is the School Board that is “vested with the exclusive control of all school property, both real and personal. This is true even where legal “title to such property is vested in a city. Likewise, the School Board is the legal entity charged with the care, management, and control of school property." [See additional case law citations concerning the authority of School Boards at the end of this blog post.]

Mind you, this isn't the first time that Jones and his staff have tried to circumvent the authority of the Richmond School Board.

Remember when Jones and his staff seized control of the Westhampton Building?

Remember how the Jones' administration used it to anchor the infamously expensive pie-in-the-sky deal that brought the Redskins training facility to the city and gave Bon Secours Hospital an incredibly sweet deal for the property at the corner of Patterson and Libbie Avenues. 

We all know how that turned out, right? [Click here "Botched Play" to read a Back Page I wrote on this topic for Style Weekly.]

Board members say they are asking the patrons of these two bills to remove them from consideration during this legislative session.  Should they fail to persuade state officials to do so, citizens are encouraged to let their representatives in the State Senate and the House of Delegates know what they want done. 

• See, e.g., V A . CODE ANN. § 22.1-79 (Supp. 2010).• Section 22.1-94 (2006)..• Id. Those classifications include "(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." Section 22.1-115 (Supp. 2010).• Bd. of Supvrs. of Chesterfield Cty. v. Cty. Sch. Bd. of Chesterfield Cty., 182 Va. 266, 28 S.E.2d 698 (1944) (Although County Board f Supervisors can determine the budget o f the School Board, it may not include a specific line item for teacher's salaries); see also 1975-76 Op. Va. Att'y Gen. 22, 23 ("The board of supervisors may not fund individual line items, nor may it alter individual line items, either by way of an increase or a reduction.").
 • Thus, a board of supervisors may not wrest from the school board the authority to provide for the construction and furnishing of school buildings. 1997 Op. Va. Att'y Gen. 55, 56. Furthermore, "the board of supervisors has no authority to require the school board to declare its unused real estate as surplus property." 1987~88Op.Va.Att'y Gen. 339, 339. 
 • Moreover, "[i]t is the responsibility of the local school board to select and purchase a site upon which a public school shall be located." 1976-77 Op. Va. Att'y Gen. 237, 238. Nor must the school board accept the recommendation of the board of supervisors that it contract with an insurance provider designated by the board of supervisors. 1972-73 Op. Va. Att'y Gen. 30. Finally, this Office has concluded that "the authority to determine whether or not the [school] property in question should be sold or retained is vested in the local school board." 1968-69 Op. Va. Att'y Gen. 209, 209.