A Virginia Supreme Court ruling from earlier this year is preventing members of the Fairfax County Board of Supervisors from participating in certain land-use cases.
The April 18 opinion by Justice William Mims ostensibly was focused on a specific land-use case. The Newberry Station community sued the Board of Supervisors to fight a proposed Metro bus maintenance facility approved adjacent to their neighborhood.
The community argued that Supervisors Cathy Hudgins (D-Hunter Mill) and Jeff McKay (D-Lee) should not have been able to vote on the issue because they represent the county on the Washington Metropolitan Area Transit Authority Board of Directors, and that Supervisor John Cook (R-Braddock) and Chairwoman Sharon Bulova (D-At large) should not have voted because they had received campaign contributions from one of the companies involved.
Bulova did abstain on the vote, and the others all disclosed their relationships prior to voting, as had been the board’s standard practice.
While the ruling upheld a lower court ruling that allowed the bus facility to go forward, the opinion’s parsing of a confusing section of state code has created new challenges for the Board of Supervisors.
“It’s a stunning decision that wasn’t really part of the overall lawsuit,” said Supervisor Penny Gross (D-Mason). “It means that members of the Board of Supervisors, should this stand, cannot do their jobs.”
Based on the current interpretation, board members now must not only disclose any relationships with an applicant in land-use cases, but also recuse themselves and refrain from being involved in the case at all.
At the last Board of Supervisors meeting in July, the potential awkwardness of the current situation became evident as the board voted to defer action on a land-use case for a project at an Inova hospital.
Only three of the 10 board members were able to vote. Two board members, Gross and Gerry Hyland (D-Mount Vernon) sit on Inova boards. Other board members couldn’t participate due to receiving campaign donations from Gross, Hyland or other Inova board members. Some couldn’t participate due to receiving free admission to the nonprofit hospital system’s annual dinner.
Cook said he considers it part of his job to attend dinners and other community events because he learns from them and meets constituents.
“To be disqualified from a case because you did a necessary part of your job, that doesn’t help anybody,” Cook said.
Local land-use attorneys now are advising their clients not to make contributions to members of the Board of Supervisors.
“Property owners, applicants, consultants and their individual agents and members should understand the scope of this case prior to making any political contributions to members of the Fairfax County Board of Supervisors or other impacted officials,” states a blog post on the website of the law firm McGuire Woods. “Failure to do so could result in recusal of key officials or open up land use cases to legal challenge by opponents.”
Gross said she could have to abstain from voting on land-use cases in her district, if such conflicts exist, and even refrain from speaking with applicants or constituents about a case.
“It is truly a frightening situation,” she said.
McGuire Woods recommends not making any contributions or providing anything else, like a meal or event tickets, that would be considered a gift, and says applicants should not discuss cases with board members when they know of a gift or contribution that has been provided in the last 12 months.
Donors affiliated with the real estate and construction industries typically contribute a large percentage of donations to local elections.
It is not yet clear how many land-use cases will be affected, said county spokeswoman Merni Fitzgerald.
However, Cook notes, the Supreme Court opinion doesn’t affect other issues the board votes on, like tax rates or employee pay, even though public employee unions also are big donors to board members’ campaigns.
“They are directly affected by our decisions on employee pay,” he said. “Every donor is a taxpayer, and we set the tax rate.”
Gross and Cook both said the board is very committed to transparency and abides by strict disclosure rules. All contributions over $100 and gifts over $50 require disclosure.
“We’re very open, very transparent,” Gross said.
Gross said the board likely will have to wait until at least the next General Assembly session before the situation can be rectified.
With this year’s ethics scandals involving Gov. Bob McDonnell (R), that may be a tough sell.
“Nobody wants to be seen as the champion for changing open disclosure,” Cook said.