The Virginia Legislative Record is a report of the activities of Virginia legislative study commissions and joint subcommittees, reflecting the ongoing deliberations and recommendations of interim legislative studies. Meeting summaries were prepared by the staff of the Division of Legislative Services. More information concerning the individual commissions and committees is available on the DLS website or by calling 804-786-3591.
2015 Interim Meeting Summaries
2015 Interim News and Meeting Calendar
The Virginia Register of Regulations is Virginia’s official publication of proposed, final, and emergency regulations. All regulations must be filed with the Registrar of Regulations to become law. The Virginia Register, published every other Monday, provides a snapshot of all regulatory activity in Virginia. The current Register issue, as well as prior issues and additional information about the regulatory process in Virginia, is available at http://register.dls.virginia.gov. Contact the Division of Legislative Services at 804-786-3591 (ext. 258, 261, or 262) or follow the Virginia Register on Twitter @varegs for more information.
September 9, 2015
The Virginia Code Commission (the Commission) met on September 9, 2015, in Richmond, with Senator John Edwards, chair, presiding.
Code of Virginia pricing and replacement volume proposal
Mr. Kennedy explained that LexisNexis determines the volumes of the Code of Virginia to recommend to the Code Commission for replacement based on age and size of supplement. Historically, LexisNexis recommends four to six volumes for replacement each year, and the more volumes replaced, the lower the cost of the supplement. This year, Lexis recommends replacing the following six volumes in 2016: Volumes 1A, 1B, 3, 4B, 5, and 5A. A proposed price increase of 5.0% is based on the Producer Price Index for Book Publishing.
The Commission approved (i) the replacement of Volumes 1A (Title 3.2), 1B (Titles 4.1-6.2), 3 (Titles 11-13.1), 4B (Titles 20-21), and 5A (Titles 24.2-28.2) in 2016; (ii) the replacement of Volume 5 (Titles 22.1-23) in 2016 contingent on the passage of Title 23.1 at the 2016 Session of the General Assembly; and (iii) a price increase of 5.0%.
At its November 18, 2014, meeting, the Commission decided to include the full text of all compacts in the Code of Virginia. Ms. Brenner reported on the status of the implementation of this decision at the April 6, 2015, and the May 4, 2015, meetings. She reported at this meeting on the three remaining compacts: the Southeastern Interstate Forest Fire Protection Compact, the Middle Atlantic Interstate Forest Fire Protection Compact, and the Nonresident Violator Compact of 1977. Ms. Brenner noted that effective July 1, 2016, the compacts volume will no longer be published. All compacts will be in the Code of Virginia and on the Virginia Law Portal.
At its May 4, 2015, meeting, the Commission agreed to proceed with a bill to amend the existing sections in Title 10.1 that incorporate by reference the two forest fire compacts by striking the existing language and including the full text of the compacts in the Code of Virginia. Ms. Brenner presented the requested bill and noted that the bill includes technical changes and a more substantive change regarding gubernatorial appointments. After discussion of the changes regarding appointments, the matter was deferred to a future meeting to obtain input from the Governor’s office.
Regarding the Nonresident Violator Compact of 1977, which is the only remaining uncodified compact, Ms. Brenner explained that the Department of Motor Vehicles is looking into withdrawing from the 1977 compact and entering into the new compact; therefore, Ms. Brenner requested the Commission’s approval to defer further action on the compact until 2016. The Commission approved the request.
of Title 23, Educational Institutions
Mr. Brimmer advised that the Commission had not previously reviewed proposed Chapter 4 (General Provisions) in the Students and Campuses subtitle and advised that the changes are technical in nature.
Staff presented new changes to previously reviewed Chapters 14 (Christopher Newport University), 15 (George Mason University), 16 (James Madison University), 17 (Longwood University), 31 (Educational Authorities, Centers, Institutes, and Partnerships), and 32 (Museums and Other Cultural Entities). Chapters with new changes are discussed below:
Mr. Brimmer stated that staff recommends moving the following existing sections from Title 23 to Title 22.1 (Education), instead of into Title 23.1, as the subject matter is more appropriate for Title 22.1.
Mr. Brimmer proposes moving the Commonwealth Health Research Board codified at Chapter 22 (§ 23-277 et seq.) into Title 32.1 (Health). The Commission previously reviewed this chapter, and the only new change is a clarification of board member terms. The Commonwealth Health Research Board concurs with the changes.
The Commission met on October 5 and November 16, 2015.
October 5, 2015
The Virginia Code Commission (the Commission) met on October 5, 2015, in Richmond, with Senator John Edwards, chair, presiding.
Meaning of “Court” in Code of Virginia (Judge vs. Jury)
Delegate Greg Habeeb advised that the recent decision of the Supreme Court of Virginia in REVI, LLC v. Chicago Title Insurance Company involved a statutory amendment contained in a recodification bill. The issue involves the use of the word “court” in § 38.2-209 A of the Code of Virginia and whether it means “judge” or “jury.” Specifically, during the recodification of Title 38.1 to 38.2, the word “trial judge” was changed to “court” in § 38.2-209 A, and the recodification report described the change as technical. Delegate Habeeb noted that the Code Commission and the recodification report played a significant role in Justice Mims’ majority opinion and was referenced in Justice Kelsey’s dissent. The dissent also noted that the use of “court” is inconsistent throughout the Code of Virginia.
Delegate Habeeb asked if the Commission was interested in taking up this issue and having DLS staff review how the term “court” is used throughout the Code. The Code Commission briefly discussed the issue, but no action was taken.
Use of Gender-Specific References in Code of Virginia
Delegate Marcus Simon addressed the Code Commission and briefly reviewed the background for this item, including his prior presentation to the Code Commission regarding HB 1600 and SB 1211 of the 2015 Session of the General Assembly, the U.S. Supreme Court decision in Obergefell v. Hodges, the request from the Speaker Bill Howell and Senator Tommy Norment, and the comprehensive compilation of gender references in the Code prepared by DLS. David Cotter, DLS Senior Attorney, explained that the chart, prepared by Caroline Stalker of DLS, presents the scope of gender references in the Code of Virginia. A code-wide definition may be problematic in some topic areas, such as assisted conception. If the approach is to make changes in each instance where a gender-specific reference is used, many places are easily changed, but others are more complicated and stakeholders would need to be involved. Delegate Habeeb advised that during consideration of HB 1600 by the House Courts Civil Subcommittee, the subcommittee asked whether changing the existing language in § 1-216 was sufficient or if the Obergefell decision mandates a different approach. Delegate Habeeb supported a comprehensive approach to amend the Code and recommended that staff use the chart to make amendments section by section. If necessary, the Code Commission could appoint a subcommittee. Delegate Jim LeMunyon also supported a comprehensive approach.
Senator Adam Ebbin addressed the Code Commission and stated that his goal was certainty and not a piecemeal approach. Delegate Simon concurred and volunteered to be on a committee if one was established by the Code Commission.
The Commission voted to proceed with a comprehensive approach in preparing a bill to amend gender-specific references in the Code of Virginia.
Selection of Next Title Recodification
The Code Commission approved the recommendation of Commission member Bob Tavenner that the Code Commission select Title 55, Property and Conveyances, as the next recodification project. Mr. Cotter informed the Code Commission that the Real Estate Section of the Virginia Bar Association supports the recodification of Title 55 and has begun forming a committee to assist DLS. The bankers also support this recodification, Mr. Cotter reported, and other stakeholders have shown interest.
Recodification of Title 23, Educational Institutions
Commission member Thomas Moncure explained that a colleague had identified an inconsistency in the use of “appointed and qualified” and “appointed and confirmed” in proposed Title 23.1 as it relates to holdover members of governing bodies. The Code Commission voted to replace “appointed and confirmed” with “appointed and qualified” throughout Title 23.1.
Ryan Brimmer and Tom Stevens, DLS Attorneys, presented the last four chapters of Title 23.1 for initial review by the Code Commission and revisited issues previously raised in other chapters.
Proposed Chapter 5, In-State Tuition and Reduced Rate Tuition Eligibility. The provisions of existing Chapter 1 of Title 23 relating to in-state tuition eligibility have been consolidated into this chapter.
Proposed Chapter 6, Financial Assistance. This chapter is a consolidation of provisions of Title 23 relating to financial assistance.
Proposed Chapter 7, Virginia Savings Plans. Existing Chapter 7 (Virginia College Savings Plan and ABLE Savings Trust Accounts) is reorganized as this proposed chapter. Mr. Brimmer advised that staff was still fine-tuning this chapter. Chris McGee, General Counsel for the Virginia College Savings Plan, stated that the Plan now includes five programs, one of which was added in the 2015 Session of the General Assembly to include ABLE accounts. Mr. McGee identified a number of issues that remain to be addressed to ensure that there are no unintended consequences from the recodification, and he recommended that the Code Commission proceed slowly and carefully, particularly regarding the liabilities and obligations under the prepay plan. Delegate Habeeb emphasized the limited time remaining for completing the recodification, and Mr. McGee stated that he expects all issues on this chapter to be resolved by the Commission’s November meeting.
Proposed Chapter 10, Restructured Higher Education Financial and Administrative Operations Act. Existing Chapter 4.10 is reorganized as this chapter. In § 23.1-1000, in the definition of the term “capital project,” staff pointed out that dollar amounts were changed to reflect those in the appropriation act. Commission member E.M. Miller suggested either changing the specific dollar amount to a reference to the appropriation act or to ask the Code publisher to note the amount in an annotation to the section.
Additional chapters or sections for review.
After discussion, the Code Commission directed staff to review this section and report back to the Code Commission.
In conclusion, Mr. Stevens indicated that staff will revisit the unresolved issues at the November meeting and present (i) the final changes made by the work group, (ii) the executive summary for the recodification report, and (iii) the enactment clauses for the draft bill.
The Commission met on November 16, 2015.
September 28, 2015
The Virginia Conflict of Interest and Ethics Advisory Council (the Council) met in Richmond on September 28, 2015. Senator Tommy Norment called the meeting to order. Executive Director Chris Piper introduced each member of the Council and the staff of the Council.
Election of Chair and Vice-Chair
Senator Janet Howell nominated Judge Walter Felton as chair and he was unanimously confirmed as chair. Delegate Todd Gilbert nominated Judge Patricia West as vice-chair and she was unanimously confirmed as vice-chair.
Council overview and staff recommendations for Council duties. Mr. Piper gave an overview of Council duties and presented staff recommendations for delegation of duties to staff as appropriate. Delegate Gilbert made a motion to delegate any additional unforeseen duties to the staff until the Council meets again. Council member Bernard Henderson requested a report of informal guidance provided by the staff, and staff agreed to provide the report to the Council on a regular basis.
Delegate Gilbert requested staff draft a procedure for protecting confidentiality of informal guidance for staff and Council.
The Council adopted the staff recommendations, as amended.
Staff recommendations regarding forms and procedures. Mr. Piper presented staff recommendations on Conflict of Interest Forms and Procedures, which included the General Assembly and State and Local Government Employees Statements of Economic Interests, the Financial Disclosure Form, and the Real Estate Disclosure Form. The Council adopted the staff recommendations.
Mr. Piper presented staff recommendations on Lobbyist Registration and Disclosure Forms and Procedures. The Council adopted the staff recommendations.
Mr. Piper presented staff recommendations for Formal Advisory Opinion Procedures and Informal Guidance Procedures. Mr. Henderson suggested that the Council amend the Formal Advisory Opinion Procedures to remove the ability to request a formal opinion via telephone. The motion was approved. The Council adopted the staff recommendations, as amended.
Other organizational issues. Mr. Piper presented staff recommendations to delegate authority of daily operations of the Council and development of the Council’s website to the Executive Director. The Council adopted the staff recommendations.
David Bailey of David Bailey & Associates pointed out a confusing part of the lobbyist disclosure form. Several members of the Council discussed their desire to remove the forms from the Code of Virginia and provide authority to the Council to develop the forms.
All documents discussed at the meeting are available on the Council’s website.
August 17, 2015
The Virginia Disability Commission (the Commission) met in Richmond on August 17, 2015, with Senator Dave Marsden, chair, presiding. Commission members introduced themselves. Sarah Stanton, staff attorney, Division of Legislative Services, provided a brief overview of the Commission’s scope, purpose, membership, and prior activities.
Department for Aging and Rehabilitative Services
Ms. Hayfield gave a presentation on current programs at DARS that provide employment assistance to individuals with autism spectrum disorder (ASD) and other disabilities. She explained that, pursuant to Executive Order 46 (2015), DARS is promoting and incentivizing the hiring of qualified Virginians with disabilities by new and existing Virginia businesses seeking to relocate to the Commonwealth. Ms. Hayfield stated that Virginia’s Vocational Rehabilitation Program is helping thousands of Virginians with disabilities to secure competitive integrated employment with a 62% success rate. She noted that 3,000 individuals are on the Program’s waiting list due to current service demands in excess of available dollars.
Ms. Hayfield stated that DARS has also found success with Project SEARCH—a program focused on helping young adults age 18 through 22 gain work experience through internships. Participants receive support from DARS-funded coaches, workplace mentors, and counselors as well as school-funded teachers. She noted that 82% of the participants are successfully employed upon completion of the program.
Finally, Ms. Hayfield explained that DARS has also placed emphasis on providing services to individuals with ASD. With a steady increase of clients with ASD over the past 20 years, DARS has heightened the number of services available to such individuals. Through pilot programs and other research, DARS has developed techniques that have proven successful in helping individuals with ASD thrive in the workplace. An example of such advances involves the use of assistive technology aids. Specifically, DARS has provided iPods to individuals with ASD for use in the workplace as cognitive aids. Applications available on this device help the individual to, among other things, calm down in stressful situations, complete tasks in a timely manner, improve social skills, and develop an improved sense of self-efficacy. Ms. Hayfield noted that, consequently, the costs of helping individuals with ASD have increased to approximately $7,400 per case, while the typical costs associated with serving individuals with other disabilities average $4,903 per case. With the use of iPods and other proven techniques, 67.2% of the participants with ASD obtained employment upon successful completion of the DARS program.
of Work Groups—Housing and Transportation, Education and Employment,
Commission members discussed work group appointments and potential meeting dates but made no final determinations due to the absence of several Commission members.
A representative from the Virginia Rehabilitation Association (VRA) opined that the Commission should place emphasis on helping Virginians with disabilities obtain employment, including securing adequate funding for vocational rehabilitation services. The representative further stated that, upon request, the VRA is willing to assist with the Commission’s future work group activities.
Chairman Marsden stated that the Commission may host another meeting in September or October at a date and time to be determined.
October 19, 2015
The Dr. Martin Luther King, Jr. Memorial Commission (the Commission) met jointly with its Emancipation Proclamation and Freedom Monument Subcommittee on October 19, 2015, in Richmond to consider requests for collaborations and partnerships, receive status and final reports, and review and select a model for the monument.
Silas Musgrove, president of the Northside High School Museum (the Museum) in Pittsylvania County, requested that the Commission partner with the Museum to convert 8-millimeter and 16-millimeter films in the Museum’s collection to discs and develop an audiovisual presentation of the history of African Americans in Pittsylvania County from 1903 through the desegregation of public schools in 1969. This effort will facilitate the preservation of a part of the history of desegregation in the Commonwealth, particularly in Southside and Southwest Virginia. The Commission collaborated with the Museum’s alumni committee in 2007 to begin the first phase of the Museum, which was dedicated in June 2010. The Museum’s alumni committee plans to complete phase two of its work by September 2016. The Commission requested that Mr. Musgrove provide an itemized budget for phase two at its next meeting to help the Commission determine the nature and extent of its participation in the project.
Patrick Farris, subcommittee member and Warren County Historical Society executive director, revisited the Commission’s work on the closing of public schools in Virginia and introduced Zach Logan, a history teacher at Warren County High School, who briefed the Commission on efforts between Warren County Public Schools and the Front Royal NAACP to write the history of desegregation in Warren County in order that it may be included in the Desegregation of Virginia Education (DOVE) project preserved at Old Dominion University. Mr. Farris or Mr. Logan will notify the Commission whether its assistance will be requested in this endeavor.
“Remembering Slavery, Resistance, and Freedom”
Dr. Barrett presented the findings and recommendations of the “Remembering Slavery, Resistance, and Freedom” project, a partnership of The College of William and Mary and the Commission. The project, funded in part by the Virginia Foundation for Humanities and Public Policy, The College of William and Mary, the National Endowment for Humanities, and the Commission, began in December 2010 as a part of the Commission’s commemoration of the sesquicentennial of the Emancipation Proclamation. Twelve expert advisors specializing in aspects of African American life, history, memory, and memorialization created a database of Virginia cemeteries where former enslaved persons are interred and a pilot program to solicit eight community conversations in Northern, Central, Coastal, Valley, and Southwest Virginia to identify the themes and modes of commemoration most resonant for African Americans in Virginia. Demographically, the 172 community participants were roughly two-thirds female, one-third male; 60 percent identified as African American, one-third as European descendants, five percent as descendants of Africans and/or Native Americans, and the remainder as Europeans. A few of the participants were born and reared outside of the United States but currently reside in Virginia. Sixty-two percent of participants grew up or were educated in Virginia. Over 80 percent were educated beyond high school; 18.4 percent were active or retired educators and 8.2 percent worked in historical or cultural organizations.
Dr. Barrett summarized the project findings as follows:
Dr. Barrett stated that African American participants’ discussions of struggles for full freedom were related to their definitions of freedom as including full access to citizenship and full membership in U.S. society. Several questions arose among the participants regarding rights and citizenship in the context of the Emancipation Proclamation 150 years ago and in contemporary civic life. She noted that Salamishah Tillet’s “Sites of Slavery: Citizenship, Racial Democracy, and the Post-Civil Rights Imagination” (2012) refers to this sensibility among African Americans as “civic estrangement.” Commission Chairwoman Jennifer McClellan directed that The College of William and Mary report be posted to the Commission’s website for public access.
Brian Grogan, executive director of Mercy Seat Films, Inc., reported on the status of the trailer for the film They Closed Our Schools and the publication of the book of the same title by the University of Virginia Press. The film, a collaborative effort with the Commission, will be featured in a film series at the Virginia Historical Society on October 22, 2015. The film and book document the history of the public school closings of 1959–1964 and their aftermath in Prince Edward County. Materials amassed for the film and book will be housed in the special collection at Virginia Commonwealth University Library. It is anticipated that the book will be released in September 2016 and that publicity for the film will generate additional funds for the film’s completion.
Emancipation Proclamation and Freedom Monument Models
At its May 19, 2015, meeting, the Commission narrowed its selection of artists for the Emancipation Proclamation and Freedom Monument to four finalists and asked each finalist to present a model at the October 19, 2015, meeting for review and consideration. All finalists are members of the National Sculpture Society. Each artist presented his model in private before the Commission, was asked a series of questions, and agreed, if selected, to make changes as may be requested by the Commission. Presenting models were the following artists:
Richard Blake of Blake Sculptor & Mata Design in Kinzers, Pennsylvania, presented a bronze model that as constructed will stand approximately 7'5" in height above the base and nearly 6'6" in diameter from edge to edge. The base of the monument will be polished black granite on all sides. The base will measure approximately 7' by 7' by 18" deep. Five granite plinths surrounding the central sculpture will measure about 18" x 15" x 15". Carved into the face of the five granite plinths will be highlights of the lives of certain historical figures that will make up the grand composition. Everdur Bronze will be used as a patina to create a medium golden brown color on the bronzes. This model, if chosen for the monument, would chronicle the lives of the central figures composing the grand composition and would implement an Augmented Reality (AR) system, providing an enhanced live experience through discovery-based learning and enabling visitors to experience a guided auditory and visual tour of the Emancipation Proclamation and Freedom Monument.
Joseph H. and Anna Koh Varilla of Koh-Varilla Guild in Chicago, Illinois, a married sculpture team, offered a small clay model of a bronze monument that would be an in-the-round high and low bas-relief life-size sculpture of major figures in the Abolitionist Movement. The bas-relief concept depicts a scene in Washington, D.C., with President Abraham Lincoln, holding a copy of the Emancipation Proclamation, seated near the center of the composition. William Lloyd Garrison, a leading abolitionist, stands behind Lincoln, and an African American Union soldier kneels at the far right of the composition. On the opposite side of the panel is Frederick Douglass, a proud abolitionist who is determined to debate his cause, and Sojourner Truth, who gestures toward President Lincoln, expressing her belief in the righteousness of the Emancipation Proclamation. The background of the panel in low bas-relief illustrates the dome of the United States Capitol Building under construction, built with African American labor during the American Civil War. The construction of the dome during the American Civil War is a symbolic and auspicious reminder of the nation in the process of creating a more perfect union. Along the bottom plinth of the front panel is President Lincoln’s eloquent statement “A house divided against itself cannot stand. I believe this government cannot endure permanently half-slave and half-free.” In the front of the monument, government and the legal fight for emancipation are depicted, and the back-panel composition illustrates the ferocity and high cost in blood and treasure required to eliminate slavery in this country. The background low bas-relief scene of the panel illustrates one of many battles fought between the Union and the Confederacy. In high relief, the back panel shows life-size figures of Harriet Tubman and John Brown aiding a beaten and exhausted fugitive slave. The back panel has quotations from Lincoln and Douglass.
Thomas Jay Warren, NSS, of Warren Sculpture Studios, Inc., National Sculpture Society, and Portrait Sculptors of the Americas in Rogue River, Oregon, presented a model with two options, one scaled with 12' bronze figures and another with 8' bronze figures, both depicting a formerly enslaved African American man whose steel shackles have been broken and a woman standing on a bronze pedestal, cuddling an infant in her arms, and holding a page from a calendar reading January 1, 1863, high above her head. In option 1, the monument stands 18' tall with 12' tall bronze figures and a pedestal. In option 2, the monument is 12' tall with 8' figures. Both options include the word “Freedom” on one face of the base, an excerpt of the Emancipation Proclamation on the second face, bronze portraits of Virginia’s heroes in the fight for freedom (i.e., Dredd Scott, Booker T. Washington, Maggie L. Walker, and Oliver White Hill) on the third face, and bronze portraits of Irene Morgan, Henry L. Marsh III, Barbara Johns, and L. Douglas Wilder, representing Virginia’s leaders on the path to equality, on the fourth face.
Rob Firmin of Daub & Firmin Studios in Kensington, California, submitted a design focused on the monument’s concepts of emancipation and freedom. The model’s design goals include boldness of commemoration of the critically important events and principles and a clean, contemporary aesthetic, incorporating a monumental S-curved scroll in granite, a 36' tall stainless steel and CorTen signing pen, with an engraved image of President Lincoln, from which rays of colored light emanate at night, a circular plaza with “Freedom” in 18' script engraved by the pen, and granite paving with a carnelian granite border. The monument will provide high visibility for Richmond and Virginia on Brown’s Island as a permanent reminder to visitors, including large island-event crowds, of the centrality of emancipation and freedom to America. The model is designed to attract civil rights and general tourism. The high visibility of the monument from many angles, including from the top of South 5th Street, the Tredegar Ironworks, and the many buildings that overlook Brown’s Island would provide the opportunity to celebrate holidays and announce events, even weather forecasts, from the monument. With the inclusion of JOJO CMS Interactive Technology, a type of e-learning technology, visitors could interact with the monument to learn about various historical figures and other important events throughout the year. The monument would be constructed of materials requiring minimal maintenance. Mr. Firmin presented three options—scroll, pen, and script; scroll only; and pen and script only—with the cost for each option.
The Commission agreed to go into executive session to discuss the models. At the close of the executive session, the Commission resumed its meeting in open session and informed the artists that they would be notified of the Commission’s decision(s) in writing. Chairwoman McClellan asked all Commission and subcommittee members to notify staff of any changes they would like requested of the artists and asked that consideration be given to the costs of changes. It was noted that a meeting with Richmond City and state officials would be arranged as soon as possible concerning next steps to be taken regarding the monument.
Other Commemorations and Guidelines for Collaborations
In discussing future commemorations, collaborations, and partnerships, Chairwoman McClellan noted that the Thirteenth Amendment was ratified on December 6, 1865, and its adoption was proclaimed by Secretary of State William H. Seward on December 18, 1865. She asked staff to research significant events that should be commemorated in 2016 and obtained the Commission’s approval to introduce legislation on its behalf in the 2016 Session, as appropriate. The Commission agreed that staff would develop recommendations and present guidelines for collaborations and partnerships for consideration at the next meeting.
The Commission agreed to meet again on December 2, 2015, to receive an update from the MLK Board of Trustees, consider other business, and act on any unfinished matters pertaining to the Emancipation Proclamation and Freedom Monument. Chairwoman McClellan announced that this will be the last meeting before the 2016 Session.
September 30, 2015
The Virginia Freedom of Information Advisory Council (the Council) held its third meeting of the 2015 Interim on September 30, 2015, in Richmond to receive progress reports from the Records Subcommittee and the Meetings Subcommittee (the Subcommittees), which were created in 2014 as part of the study of the Freedom of Information Act (FOIA) in accordance with House Joint Resolution No. 96, to begin the legislative preview, and to discuss other issues of interest to the Council.
The meeting was called to order and members introduced themselves, including Shawri King-Casey, the new designee of the Attorney General. Ms. King-Casey is the first Compliance and Transparency Counsel for the Office of the Attorney General. The Council elected Delegate James LeMunyon as chair and Senator Richard Stuart as vice-chair.
Delegate LeMunyon then noted that because Delegate Rick Morris was unable to attend that day’s meeting, agenda item #4 concerning Delegate Morris’s House Bill 2223 would be deferred until the Council’s next meeting on November 18, 2015.
The Council next received progress reports from the Records Subcommittee and the Meetings Subcommittee.
Staff advised the Council that the Records Subcommittee had met four times during the 2015 Interim (May 11, June 18, July 22, and August 18) to continue its study of records exemptions as directed by HJR No. 96 (2014) and pursuant to the study plan adopted by the Council. Specific information about the sections of FOIA reviewed by the Records Subcommittee beginning in 2014 and the recommendations of the Records Subcommittee as of August 18, 2015, is available in Appendix A on the FOIA website.
Council member Kathleen Dooley, chair of the Meetings Subcommittee, advised the Council that the Meetings Subcommittee had met four times during the 2015 Interim (May 12, June 17, July 21, and August 19) to continue its study of meeting exemptions as directed by HJR No. 96 (2014) and pursuant to the study plan adopted by the Council. Ms. Dooley announced that the Subcommittee had completed its initial review of the closed meeting exemptions and was moving on to consider procedural matters. Specific information about the sections of FOIA reviewed by the Meetings Subcommittee beginning in 2014 and the recommendations of the Meetings Subcommittee as of July 22, 2015, is available in Appendix A on the FOIA website. She announced that the Meetings Subcommittee would meet again following that day’s full Council meeting.
Review of Subcommittee-Recommended Legislative Proposals
Following the reports of the Subcommittees, Maria J.K. Everett, Executive Director of the Council, reviewed the draft legislation recommended to date by both Subcommittees. As a reminder, the Council has previously indicated that, rather than introduce individual legislative recommendations as separate bills while the HJR No. 96 study is ongoing, it prefers to introduce omnibus legislation at the conclusion of the study.
Stephen L. DeVita, Esq., presented three proposals on behalf of the Loudoun County School Board. The full text of the proposals is available on the Council website. A summary of the three proposals follows:
Victoria Nicholls, a citizen of Virginia, suggested changing the exemptions applicable to the Virginia Department of Health Professions (DHP) and the various boards relating to medical professions. She specifically suggested that copies of DHP reports and decisions to dismiss or proceed with a case against a health care professional be given to the complainant; that correspondence from the health care professional who is the subject of a complaint be given to the complainant; that records of state employees involved in investigations be available so that complainants can see outcomes for patients to compare as to whether state employees are doing their jobs; and that professional curricula vitae for appointed boards be removed from the Governor’s exemption for working papers. Ms. Nichols stated that her experiences with such matters dated back to 2009 and that, in practice, investigations of health care professionals may involve sharing the same information among multiple state agencies, and there may be discrepancies in the facts or incomplete investigations, but complainants cannot find out if the investigations performed are thorough, if board members have conflicts, or other “back-door” issues. She stated that taxpayers currently pay over $12 million per year for DHP investigations, but under current law cannot even tell if the investigations are actually performed. As a further example, Ms. Nicholls indicated that her own medical records had been given to the lawyer who represented the health care professional who was the subject of her complaint without any notification to Ms. Nicholls and without her permission. She stated that her goal is to ensure that state agencies do what taxpayers pay them to do and that there are no conflicts of interest.
Delegate LeMunyon opened the floor to public comment and indicated he would particularly like to hear comments about the work of the Subcommittees.
Dave Ress, a reporter with the Newport News Daily Press, identified three issues of concern: 1) overuse of the working papers exemption, 2) open meetings review, and 3) the recent decision of the Supreme Court of Virginia in Department of Corrections v. Surovell (Record No. 141780, decided September 17, 2015). Mr. Ress stated that the working papers exemption is possibly the biggest loophole that allows the affairs of government to be conducted in an atmosphere of secrecy, and he cited as an example a report on government waste and duplication of effort by the Office of the State Inspector General that was withheld as a Governor’s working paper, among other examples. Regarding closed meetings, he described one local governing body that had not had a meeting without a closed session in at least a year and a half, and another that spent six hours in and out of closed session. Mr. Ress questioned whether we really want to have that many closed meetings that last that long. Regarding the Surovell decision, he noted that the preamble to FOIA states that exemptions are discretionary and narrowly targeted, which preserves the fundamental premise of the public right to know, but the Supreme Court decision focuses on the language of the exemptions rather than the basic procedure and five responses to records requests set out in § 2.2-3704.
Megan Rhyne, Executive Director of the Virginia Coalition for Open Government, stated she had received a message from a man in southwest Virginia stating that his local governing body had held a closed meeting at every meeting for the past 20 years and described it as demoralizing to the public and making the citizens feel like trespassers in their own town. She noted that the last FOIA rewrite occurred in 1999; it involved hard compromises on controversial exemptions, and it created the Council. She stated that she felt the Council’s stature as the authority on open government is waning, that one Governor proposed elimination of the Council and another completely misstated the law. She continued by saying it is a completely different world from 1999, that FOIA needs a radical revamp, that much of FOIA no longer serves the public, and Virginia can and must do better.
Craig Merritt, speaking on behalf of the Virginia Press Association (VPA), commented on the work of the proprietary records study group and the Surovell case. He related that the Supreme Court of Virginia’s opinion in the American Tradition Institute case last year invited the General Assembly to address proprietary records. He further stated that the rule of construction is that the General Assembly acquiesces to the Court’s interpretation unless it changes the statutory language, and therefore we will have to follow the Court’s interpretation of the word “proprietary” set out in the American Tradition Institute case in all other exemptions where the word appears. He expressed the VPA’s opinion that it is not possible to fix everything in FOIA involving proprietary records, but it is possible to deal with situations where private entities submit trade secrets or confidential financial information to public bodies. Regarding the Surovell decision, Mr. Merritt noted two points: 1) FOIA states that the public body bears the burden to establish an exemption by a preponderance of evidence, but the Surovell decision sets forth a standard of deference to the public body that may require redrafting and 2) the Surovell decision states the rule that if a record includes material subject to an exclusion, the public body may withhold the entire record, which cuts against the accepted interpretation of FOIA for at least a couple of decades, and will need to be addressed in the Code.
Roger Wiley, an attorney representing local government and a former member of the Council, stated that, based on his own experience, in spite of what some might suggest, the sky is not falling on open government in Virginia. He stated that the majority of those in local government comply with the law day in and day out. While acknowledging that violations do occur, he suggested that the answer is not always to rewrite the law, but to seek clarification. He stated that the examples Mr. Ress provided were problems with individual interpretations of the law, not the law itself. He expressed that the public does not appreciate how tedious and time-consuming good government can be, in reference to the work of the Subcommittees reviewing every exemption in FOIA one by one. He concluded that through the study process there are generally good reasons for the way the law is now and sweeping revisions are not needed.
Delegate LeMunyon indicated he had received a letter from Delegate Scott Surovell regarding the recent Supreme Court decision and that the matter would be taken up at the November 18, 2015, meeting of the Council. He stated the Council would also take stock of the progress of the three-year study under HJR No. 96. He continued by saying he had heard some say the Council is not shrinking exemptions enough, and he would encourage people to come forward to state which exemptions and why, to tell the Council specifically what needs to be changed. He asked that going forward, each Subcommittee have a specific reason for each recommendation stated in the meeting minutes, particularly as members of the General Assembly will want to know the reasons when considering any legislation produced by the study for the 2017 Session.
Marisa Porto stated that, as a new Council member, she had gone back to the original study plan and would like further clarity on the philosophy of the Council, particularly in light of the Surovell decision. Delegate LeMunyon stated that he was still working through the Surovell decision, but generally his opinion was to ask, if FOIA did not exist, what would we keep and why, and which exemptions are necessary?
There being no further public comment, as the next order of business Ms. King-Casey was appointed as a member of both the Records and Meetings Subcommittees.
The Council met on November 18, 2015.
October 5, 2015
The Virginia Housing Commission (the Commission) met on October 5, 2015, in Richmond, with Delegate Danny Marshall, chair, presiding. The meeting focused on hearing best practices from other states concerning land banks and discussing applicability of those practices to Virginia’s localities.
Presentations were given by Thomas J. Fitzpatrick (Land Banking in Ohio) and Kim Graziani (Land Banking: One Tool to Address Blight in Virginia). Both presentations with supplemental materials are available at the following link: http://dls.virginia.gov/commissions/vhc.htm?x=mtg. Following the presentations, members of the Commission and invited guests discussed the issues presented and were given an opportunity to ask questions of the presenters.
Land Banking in Ohio
Jennifer Giovannitti, Regional Community Development Manager, Community Development, The Federal Reserve Bank of Richmond, noted that, regarding the issue of underused and troubled properties, some states are using land banking to achieve better results. There has been a rapid increase in interest in land banks, but it is important to recognize that Virginia communities may not fit the traits for the best-known land bank areas.
Delegate Chris Peace asked for more information about brownfield communities, caps on remediation, and funding streams for related grants. Mr. Fitzpatrick noted there have been a couple ways brownfield communities were handled in Ohio; the land bank could literally act as a holding company. He reported that, like any other large-scale remediation, projects like these require careful consideration, ideally with a partner on the back end and some funding on the front end, preferably with a partner to coordinate all the moving parts.
Commission member Laura D. Lafayette asked what happens
when there is a disposition of the property; is a development agreement
made with the nonprofit, or is a decision already made to send it out
the door? Mr. Fitzpatrick replied that it depends on the relationship.
Better than having a development agreement is the ability to cut them
off in the future. Through that ability, we are also able to ensure we
hold true to what we were promised.
Ms. Lafayette asked about the real estate income that has accrued to the jurisdiction with regard to putting these properties back on the tax rolls since Ohio started to land bank. Mr. Fitzpatrick said that they estimate, based on the properties that have passed though the land bank and their known area of impact and the taxed assessed values, that $150 million in taxable value is preserved, which has resulted in $5-6 million in tax revenue.
Delegate Marshall asked about whether the Ohio legislation set up a statewide oversight committee and whether their experience in Ohio is mostly residential or commercial. Mr. Fitzpatrick said oversight is provided in each county. The closest thing to state oversight is the state auditor. With regard to commercial vs. residential, it varies by county. In the south, it’s been mostly all commercial. In Mr. Fitzpatrick’s county, it has been mostly residential. It depends on the need of the county.
Ms. Lafayette asked about percentages of properties disposed of for nonprofits vs. the private sector. Mr. Fitzpatrick said the vast majority of properties in Ohio go to nonprofits, but the numbers have grown substantially for private-sector businesses, too.
Commission member T.K. Somanath asked whether there is a model to determine the cumulative effect of a land bank on a particular area. Mr. Fitzpatrick explained there is a spatial hedonic model to measure the impact of activity on surrounding areas. The problem with any empirical study is sample size. When you start looking for critical mass and add in other private rehabs, you get fewer observables and it’s hard to do an empirical study.
In response to questions from Delegate Marshall, Mr. Fitzpatrick indicated that most of the properties involved are not sold through MLS. The vast majority are advertised on their website and through mailing lists in order to get the message to interested nonprofits. They enlist the local chamber of commerce for advertising commercial properties. He indicated that most of the individual end users come from partnerships with local government and nonprofits. In general, they are in-region end users. The vast majority of the properties are demolished and then sold as vacant lots. They have done approximately 400 rehabs out of a total of 2,700 properties developed since 2009.
Mr. Fitzpatrick reported that a rehabber is given six months to rehabilitate a property, and if no one shows interest in that time, the property is slated for demolition. They sell to private-sector rehabbers and to owner-occupiers, with steps on their website for how to become a qualified buyer.
Land Banking: One Tool to Address Blight in Virginia
Delegate Marshall asked about a dedicated funding mechanism. Ms. Graziani said that in the template legislation, there is a section that allows the state to decide the revenue stream. It is not required. Outside of Ohio, the only dedicated funding source is the tax recapture. She reported that funding is a combination of seed funding and in-kind services. She said other funding options in order of percentages are first, funding from the local units of government; second, property sales; third, the property tax recapture, which is in most recent legislation; fourth, philanthropic funding; and fifth, revenue from actual services provided.
Delegate Marshall asked whether most land banks are public authorities or an arm’s length away from local government. Ms. Graziani said most are nongovernment in their corporate structure. She explained that the primary advantage is to have an independent entity that is solely focused on the properties that no one else wants to focus on. The ability to have a more nimble, responsive nature is another advantage. Having an independent entity also allows some further funding mechanisms that could not go to local government.
Ms. Graziani mentioned that there is an overlap of land banks and land trusts and housing authorities, which her organization has mapped. They do not include housing authorities in that analysis at this time.
Housing and Environmental Standards
The Housing and Environmental Standards Work Group heard from Senator Adam Ebbin about his asbestos bill; he would like to speak on November 5 to the full Commission. They also discussed abandoned oil tanks and septic systems and decided not to have legislation go forward this session on those issues.
Neighborhood Transitions and Residential Land Use
The Neighborhood Transitions and Residential Land Use Work Group met in July and discussed the early termination of rental agreements when a court has determined stalking has taken place. An outside work group is preparing legislation to bring this issue to the next full commission meeting. The Work Group was scheduled to hear from Delegate Richard Morris on the preapproval of site plans, but he was unable to attend the last meeting and the issue was not discussed.
The City of Portsmouth gave a presentation on recurrent flooding. Because there is a Joint Subcommittee dedicated to the study of recurrent flooding, that subcommittee will handle legislation on the topic.
Affordable Housing, Real Estate Law, and Mortgages
The Affordable Housing, Real Estate Law, and Mortgages Work Group discussed offender reentry and planned to continue to discuss that issue in its meeting on October 20. The Work Group also planned to discuss the Virginia Housing Trust Fund and will likely have legislation coming forward at that time concerning those issues.
The Work Group also discussed fair housing and status as a veteran and decided that issue would not go forward. They discussed fair housing in relation to sexual orientation, which was put on hold for possible discussion at the end of this year.
Common Interest Communities
The Common Interest Communities Work Group planned to meet before the October 5 meeting of the full Commission to discuss rights and responsibilities of owners and common interest communities.
Donna Sayegh, citizen of Portsmouth, spoke out against sustainable policy and development. She stated that there would be a more even distribution of property and less poverty if the federal government would act within the natural laws and not use government-sanctioned monopolies.
September 16, 2015
The Joint Commission on Technology and Science (JCOTS) held its third meeting of the 2015 interim on September 16, 2015, in Richmond, with Delegate Tom Rust, chairman, presiding. The meeting focused on research and development in the Commonwealth.
House Bill 1743
Delegate Tim Hugo presented House Bill 1743, which was introduced during the 2015 Session of the General Assembly and referred to JCOTS for further study. The bill would substantially amend the existing research and development tax credit by changing the formula used to determine the amount of the credit and removing the $6 million aggregate cap. Delegate Hugo said that the existing credit targets smaller companies and that his amendments were aimed at larger companies conducting a more substantial volume of research and development in the Commonwealth. He acknowledged that the fiscal impact of the bill was an issue that needed to be discussed.
Delegate Hugo invited Aimee Strudwick Gilroy, Senior Manager of State Government Relations for Raytheon Company, to present its perspective on the need for updates to the research and development tax credit. Ms. Gilroy said that research and development is vital to Raytheon’s global competitiveness. She affirmed that she supports the current tax credit and its value to small businesses, but said that the tax credit doesn’t have value for companies investing millions of dollars in research and development. To alleviate the concerns that small businesses have with HB 1743, she added that she would support the development of a second, alternative credit that conforms to the federal simplified research and development tax credit. She contended that broadening the credit would present economic development opportunities for the Commonwealth and could be used to recruit new businesses.
In responding to questions, Ms. Gilroy said that Raytheon would propose a credit using the federal simplified methodology that would have a $1 million cap per company and a $25 million annual aggregate cap. She also stated that an option to limit the fiscal impact of the bill would be limited to the amount of liability that could be offset by the credit to 50 percent.
Jeff Gallagher, chief executive officer of Virginia Bio, addressed JCOTS and said that the existing credit is effective in its current form for entrepreneurs and that its current refundability makes it particularly valuable to pre-revenue companies. He said he was supportive of the idea of an alternative credit that would leave the current credit intact, as companies in the biotechnology industry tend to be smaller and benefit from the current credit. He was concerned, however, that the fiscal impact of an alternative credit would be high, and faced with limited resources, thought that there were other ways to grow the economy. He advised JCOTS to consider the return on investment.
Josh Levi, Vice President of Policy for the Northern Virginia Technology Council (NVTC), also addressed JCOTS. He said of NVTC’s 1,000 member companies, half have fewer than 10 employees. When the research and development tax credit was enacted in 2011, it was focused on small companies. He said that a second, alternative credit would encourage growth. However, he also said he was leery of diluting the existing credit, so that it does not become overly subscribed like Maryland’s research and development credit.
JCOTS staff provided a general overview of research and development expenditures in the Commonwealth. This included a review of the existing research and development tax credit, the sales tax exemption for research and development expenses, the Commonwealth Research and Commercialization Fund, and other general fund appropriations related to research and development. A copy of the overview is available on the JCOTS website.
In discussing HB 1743, there was concern that the bill, as introduced, would undermine the original legislative intent of helping start-up companies. However, the need to incentivize larger companies to locate and expand in Virginia is also important. While the members did not develop any formal recommendation regarding the path forward for an alternative research and development tax credit, there was general agreement that such a credit should not be refundable and should have a reasonable cap. In light of the discussion at the meeting, Delegate Rust suggested that the companies interested in an alternative credit keep working on the issue and develop a bill for the 2016 Session. JCOTS, however, would not be recommending a bill.
In other business, Delegate Ken Plum, chair of the JCOTS Nanosatellite Advisory Committee, said that the Advisory Committee heard a proposal from the Virginia Space Grant Consortium regarding small satellite development. The proposal would require a substantial budget investment that should be considered by the executive branch. Delegate Plum made a motion that the issue of the investment of state funds be sent to the Virginia Aerospace Advisory Council for review and consideration. The motion was adopted unanimously.
August 18, 2015
The Joint Committee to Study Staffing Levels and Employment Conditions at the Department of Corrections (the Joint Committee) met at the Wallens Ridge State Prison in Big Stone Gap on August 18, 2015, with Senator Dave Marsden, co-chair, presiding. Joint Committee members introduced themselves.
Overview of Operations, Programs, and Staffing at Wallens Ridge State
Warden Fleming and Assistant Warden Combs provided the Joint Committee members with the following information about the Wallens Ridge facilities, programs, and staffing. Wallens Ridge has 459 full-time employees, 346 of whom hold security positions. Currently, seven positions are vacant, including two correctional officer positions. During fiscal year 2015, Wallens Ridge lost 44 employees as a result of resignations, terminations, and retirements. Nineteen of these employees left Wallens Ridge for a position with the Federal Bureau of Prisons. One primary reason for their departure is disparity in salary; the starting salary for correctional officers at Wallens Ridge is $30,900, compared to $41,545 at the nearest federal penitentiary.
In order to enhance the quality of the work environment for correctional officers, Wallens Ridge uses an integrated model that includes practices such as employee forums, focus groups, learning teams with dialogic practices, and continuous evaluation and refinement. One of the major focuses at Wallens Ridge is employee safety. In an effort to enhance employee safety and encourage communications between staff and offenders, Wallens Ridge created treatment officer security positions. Additionally, Wallens Ridge employs a host of other best practices to promote safety, such as announcements of inmate head counts over the intercom system, overhead K-9 sheds on the recreational yard, and routine checking and lodging during armory distribution. As a result of these practices and many others, the number of incidents between inmates and staff at Wallens Ridge has decreased by 41.5% over the past three years.
Wallens Ridge also places substantial emphasis on preparing its inmates for reentry into their communities upon release. The prison uses numerous evidence-based practices designed to assist inmates in this regard, including moral reconation therapy, anger management classes, book pods, motivational interviewing, effective communication simulations, and other resources for successful living. Wallens Ridge also provides vocational services in coordination with the Department of Education, including OSHA training, custodial maintenance instruction, career readiness certificate programs, and HVAC instruction.
Tour of Wallens Ridge
Following the presentation, Warden Fleming and Assistant Warden Combs led the Joint Committee members on a tour of Wallens Ridge.
For the remainder of the meeting, Department of Corrections (DOC) employees from various prisons across the Commonwealth testified about their employment experiences with DOC and made recommendations for future improvements.
July 21, 2015
The Joint Subcommittee to Formulate Recommendations to Address Recurrent Flooding (the Joint Subcommittee) established pursuant to HJ 16 (2014) and SJ 3 (2014) held its second meeting in Richmond on July 21, 2015, for the second year of the two-year study.
The Joint Subcommittee is tasked with formulating recommendations for the development of a comprehensive and coordinated planning effort to address recurrent flooding, including recommendations for short-term and long-term strategies for minimizing the impact of recurrent flooding. Final recommendations will be presented to the 2016 Session of the General Assembly.
Enhancing Coastal Resilience on Virginia’s Eastern Shore
Ms. Crichton addressed the Joint Subcommittee on enhancing coastal resilience on Virginia’s Eastern Shore. The Virginia Coast Reserve focuses on land protection; managing, monitoring, and protecting shore and water birds; marine restoration; outreach and education; and coastal resiliency. A significant focus since 2008 has been on adapting to sea level rise and storm surge and looking at how coastal habitats can be part of a nature-based solution to such sea level rise. Ms. Crichton explained that the Eastern Shore is the coastal resilience laboratory for the Atlantic. By engaging community leaders and providing more options to protect the coast, managers and decision makers can make more informed decisions that enhance both ecological and socioeconomic resilience in the face of sea level rise and storm surge. A copy of Ms. Crichton’s full presentation can be found at http://dls.virginia.gov/GROUPS/flooding/coastalresilience072115.pdf.
Protection Plan Update
Mr. Dowling explained that Va. Code § 10.1-602 sets out the powers and duties of DCR, to include the development of a flood protection plan for the Commonwealth. In 2005, in response to this requirement, DCR updated the Floodplain Management Plan for the Commonwealth of Virginia. Legislation passed during the 2015 Session required that the flood protection plan be reviewed and updated by DCR on a regular basis, but at least once every five years. Also, the plan must be maintained in an online format so that it is easily accessible by others. Mr. Dowling stated that in June DCR assembled its Floodplain Management staff to review the legislation and the current plan and to brainstorm the best way to move to an online approach. In terms of next steps, DCR plans to work with potential users, stakeholders, and other partners to ensure that the key information areas have been identified. DCR will continue its coordination with the Joint Subcommittee. A copy of Mr. Dowling’s full remarks can be found at http://dls.virginia.gov/GROUPS/flooding/DCR072115.pdf.
Federal Community Rating System (CRS)
Ms. Stiff discussed the Federal Community Rating System (CRS), a voluntary incentive program intended to encourage community floodplain management activities that exceed certain minimum requirements. As a result of implementation of this program, flood insurance premium rates are discounted to reflect the reduced flood risk resulting from the community actions. Ms. Stiff stated that additional resources are needed in order to encourage better participation among Virginia localities where fewer than 10% of eligible communities participate. A copy of Ms. Stiff’s full presentation can be found at http://dls.virginia.gov/GROUPS/flooding/ratingsystem072115.pdf.
Governor’s Climate Change Commission Report
Joint Subcommittee member Nikki Rovner provided an update on the work of the Governor’s Climate Change Commission (the Commission). Ms. Rovner, who also serves on the Commission and will act as a liaison between the two groups, explained that the Commission has created several work groups that are expected to make preliminary recommendations at the Commission’s July meeting.
Future meetings of the Joint Subcommittee will be scheduled for September and November.
September 24, 2015
The Joint Subcommittee to Study Mental Health Services in the Commonwealth in the 21st Century (the Joint Subcommittee) met on September 24, 2015, at Suffolk City Hall in Suffolk.
Mental Health Services in Jails
Sheriff Morgan spoke about mental health services in jails in the Commonwealth. He noted that jails are the largest providers of mental health services in the Commonwealth. The demand for services is high, with an estimated 60% of individuals in jails having serious mental illness. Many of these individuals are in jails because there are insufficient community mental health resources to meet their needs. Many sheriffs work with local community services boards to meet the demand for mental health services in the jails. However, funding for mental health services is insufficient. Similarly, funding and service capacity for individuals with mental health needs exiting jails and returning to the community are insufficient, creating a situation in which those individuals are likely to end up back in jail.
Sheriff Morgan suggested that to meet the need for mental health services, the Commonwealth needs to invest in the public mental health system to increase capacity. Areas of focus should be increasing the availability of crisis stabilization and drop-off centers for individuals experiencing mental health crises and increased use of alternative transportation providers for individuals under emergency custody orders or temporary detention orders. He also raised concerns about differences in drug formularies across mental health services providers in the Commonwealth, and recommended that a single state formulary would be beneficial.
Senator Creigh Deeds asked Sheriff Morgan about Crisis Intervention Team (CIT) training. Sheriff Morgan stated that about 40% of his deputies have received the training, which is above average for the area. The Commonwealth provided sufficient funds to train about 25% of the deputies, and he paid for the remainder from his budget. Sheriff Morgan stated that funding for training has not been an issue, but that capacity and the ability to move a larger number of deputies through the training process has been an issue.
Senator Janet Howell asked if Sheriff Morgan thought 40% of officers trained in crisis intervention was sufficient, or if all deputies should be required to receive training, as is recommended by the Memphis CIT model. Sheriff Morgan stated that training 100% of deputies was the goal.
Delegate Peter Farrell asked about other opportunities to improve the mental health service system to reduce the burden on jails. Sheriff Morgan stated that establishing therapeutic centers to provide treatment and restoring competency services in the jails would be beneficial.
Mental Health Services in Jails
Sheriff Stolle provided additional information about mental health services in jails. He stated that 100% of his deputies have received Crisis Intervention Team training, which he believed should be standard throughout the Commonwealth, but that CIT training was just a small piece of what the Commonwealth should be doing. He noted that insufficient funding of mental health services in jails was a major problem and that the lack of adequate mental health services both in jails and in the community meant that many individuals with mental health problems continued to be involved with the criminal justice system rather than receiving necessary treatment. To address the problem, Sheriff Stolle suggested establishing drug and alcohol detox programs and dedicated mental health units for individuals who need treatment in jails. He noted the need to encourage and facilitate delivery of mental health services in jails by community services boards, a structure that would ensure a seamless continuation in services for individuals leaving jails and returning to the community. One option would be to require the community services boards to provide such services. Sheriff Stolle also suggested that the Joint Subcommittee consider requiring mandatory outpatient treatment for individuals leaving jails, to ensure access to and compliance with mental health treatment. In closing, Sheriff Stolle stressed the importance of transitional housing for individuals leaving jails, calling safe, stable transitional housing the number one need for individuals returning to the community.
Overview of Mental Health Services Funding
Ms. Massart and Mr. Tweedy provided an overview of recent budget actions affecting behavioral health services. They reported that the General Assembly had added $161 million in General Funds over the 2014-2016 biennium to expand services for individuals with serious mental illness, with funds dedicated to the creation of a new Medicaid waiver program, known as the GAP waiver, to provide targeted physical and behavioral health services to low-income adults with serious mental illness who are at or below 60% of the federal poverty level ($96.5 million); to support targeted community-based programs ($37.2 million); to provide additional adult bed capacity at Eastern State Hospital and to backfill loss of revenues from declining need for geriatric beds ($14.4 million); to expand capacity at state facilities serving as providers of last resort for individuals involved in the involuntary commitment process ($8.5 million); to address expanded time periods for emergency custody and temporary detention ($2.8 million); and to fund the acute bed registry ($233,586). An additional $642.1 million in General Funds was included in the Medicaid forecast over the biennium to support the growing cost of Medicaid-funded mental health services.
Ms. Massart noted that, as of August 2015, 8,187 individuals had been screened to determine eligibility for the GAP waiver program and 4,736 had been approved and enrolled. She also noted that expenditures for Medicaid-funded community mental health services have grown 22.5% since Fiscal Year 2012, with increases attributed to increased funding for the discharge assistance program (DAP), programs of assertive community treatment (PACT), crisis intervention training for law-enforcement officers, and therapeutic drop-off centers. Additional funding has also been provided for children’s and youth services, supportive housing, peer support recovery programs, tele-psychiatry equipment, Mental Health First Aid training, suicide prevention efforts, additional local inpatient purchase of services (LIPOS), and expanded inpatient capacity at state facilities resulting from the reopening of 13 beds at Northern Virginia Mental Health Institute and added capacity at Eastern State Hospital. Ms. Massart also noted that expenditures for treatment costs related to involuntary commitments, which are funded through appropriations to the Department of Medical Assistance Services, have grown by 33% from Fiscal Year 2012.
Looking forward, Ms. Massart reminded the Joint Subcommittee that language in the Appropriations Act adopted during the 2014 Session directed the Department of Behavioral Health and Developmental Services to review the current services provided at the Commonwealth’s mental health hospitals and consider options for consolidating and reorganizing the delivery of state services to include programmatic assessment and fiscal impact of long-term needs for inpatient services for geriatric, adult, and forensic populations and fiscal impact of the reduction in third-party payments from reducing the geriatric patient population served in state hospitals. This report is due October 1, 2015. Additional language added to the Appropriations Act in 2015 required the Department to review Piedmont Geriatric and Catawba hospitals and examine alternate options for care, especially geriatric psychiatric care. This report is due November 1, 2015.
Department of Behavioral Health and Developmental Services Update and
STEP VA: System Transformation, Excellence, and Performance in Virginia
Dr. Barber provided an update on the Department’s System Transformation initiative. He noted that comprehensive behavioral health care that includes prevention, early intervention, and wellness, as well as integration of primary health care, with an increased focus on community-based services and supports and decreased reliance on institutional care is essential to both population health and cost containment. Currently, the Commonwealth is 35th in the nation for all behavioral health funding, 40th for the number of consumers served per capita, and 15th in the nation in terms of expenditures per client. Dr. Barber stated that, given this information, the Commonwealth is not maximizing its investment.
To address this problem, the Department has undertaken efforts to transform the behavioral health care system. The transformation will have the goal of establishing excellence in behavioral health care and integrating behavioral and primary health care, with an emphasis on population health and wellness and sustained, strategic investment in community services and supports. A key element of the transformation will be the establishment of certified community behavioral health clinics (CCBHCs) in accordance with the federal Excellence in Mental Health Act (EMHA). CCBHCs will be established at eight community services boards throughout the Commonwealth, and will provide same-day access to mental health services, standardized community services, 24/7 mobile crisis services, veterans services, robust mental health services for children, and connections to primary care, reducing geographic disparities in service offerings, improving access to care, eliminating inconsistencies in service quality, and improving system capacity. Key components of the system will include: comprehensive outpatient services; robust crisis services including 24-hour mobile, crisis intervention, and stabilization services; permanent supportive housing; supported employment; children’s mental health and trauma services; transition age services; geropsychiatric care; jail diversion and community reentry services; behavioral health services for veterans; acute detoxification services; and prevention and early intervention services. Dr. Barber reported that the Commonwealth has received a $2 million planning grant from the federal Substance Abuse and Mental Health Service Administration (SAMHSA) and that the Department has set aside an additional $2 million to implement the CCBHC model. If the Commonwealth can successfully establish the eight CCBHCs by October of 2016, it will be eligible to compete for the second phase of the grant, to fund service delivery through the CCBHCs over the following two years. Ultimately, Dr. Barber stated, the goal is to bend the cost curve for behavioral health services, reducing hospitalizations, emergency department visits, and psychiatric hospitalizations, while improving behavioral health and primary health integration, health outcomes, wellness, and patient experience.
Dr. Barber also provided an update on the work of the Adult Behavioral Health, Adult Developmental Services, Children & Adolescent Behavioral Health Services, and Services to Individuals Who Are Justice-Involved transformation teams. He reported that the teams had met several times and had received public comment at those meetings. Over the course of the meetings, 10 themes had emerged across all of the recommendations. These included the need to:
Recommendations of the transformation teams focused on efforts to: increase access to services, including screening and assessment; expand person-centered/patient-centered practices; improve the spectrum of crisis services; implement and fund more targeted case management; strengthen peer and family services; and ensure better integration of behavioral health care with primary care, employment, housing, education, and social services. Recommendations of the transformation teams had been reviewed by a stakeholder group comprised of providers, advocates, family members, and persons with lived experience. Dr. Barber noted that the transformation teams have started the Fall 2015 transformation cycle, which will include additional meetings with stakeholder groups, presentation of recommendations to the Commissioner, and public town hall meetings. Additional information on the transformation teams is available on the Department’s website.
Dr. Barber also discussed the activities of the involuntary commitment work group established pursuant to Chapter 742 of the Acts of Assembly of 2015. Chapter 742 directed the Commissioner of Behavioral Health and Developmental Services to work together with relevant stakeholders to review the current practice of conducting emergency evaluations for individuals subject to involuntary civil admission and to develop a comprehensive plan to authorize psychiatrists and emergency physicians to evaluate individuals for involuntary civil admission where appropriate to expedite emergency evaluations. The review and recommendations must be completed by November 15, 2015, and reported to the Governor; the Joint Subcommittee to Study Mental Health Services in the Commonwealth in the 21st Century; the House Committee on Health, Welfare and Institutions; and the Senate Committee on Education and Health. Dr. Barber stated that the group had met several times and would report recommendations in accordance with the requirements of Chapter 742.
At the end of Dr. Barber’s presentation, members of the Joint Subcommittee posed several questions. Delegate Farrell asked about demographics of individuals who were the subject of temporary detention orders. Dr. Barber noted that many were younger individuals, in their teens and early twenties. Delegate Farrell asked for additional data about these individuals, which the Department will provide.
Delegate Vivian Watts asked about the use of advance medical directives by individuals experiencing mental health crisis. Dr. Barber stated that the Department was working to increase awareness and use of advance directives but that advance directives were not frequently used.
Strengths and Challenges of Virginia’s Mental Health System: Perspectives
from Individuals and Families
Ms. Signer described the strengths and challenges of Virginia’s mental health services system from the perspective of individuals and families involved in the system. She stated that families and individuals who become involved with the system often have negative experiences but that improving the mental health system can reduce the negative impacts. She described the 10 characteristics of a high quality state mental health system:
Ms. Signer stated that Virginia’s mental health system was moving in the direction of incorporating key principles of recovery, health promotion, and resilience and that the system was designed in a way that would allow for enactment of policy and accountability standards. Private providers offer options and capacity, while localized systems foster buy-in and support. However, the system is also fragmented, confusing to navigate, crisis-driven, inconsistent in terms of services and funding, and lacking in consumer choice. Community services boards generally face challenges in terms of access and capacity, and the lack of clarity in rules governing the relationship between public and private providers creates additional difficulties. Other challenges include difficulty in accessing inpatient care, barriers to discharge from state hospitals, uninsured patient populations, a high number of jail inmates with mental illness, and a lack of housing.
Ms. Signer stated that top priorities for improving the adult mental health system include: expanding permanent supportive housing, integrating mental health care with primary health care, improving access to emergency and crisis stabilization services, expanding intensive outpatient services, expanding Medicaid to provide coverage for the uninsured, and improving acute care access. Top priorities for improving mental health services for children include: implementing parent and youth peer support services in the child-serving systems, expanding the array of services to develop a true continuum of care for children and youth, expanding transition-aged youth services, and bringing Systems of Care values and principles to scale in Virginia. In closing, Ms. Signer offered 10 recommendations:
Judge Bruce Wilcox and Nancy Wilcox of Norfolk described challenges they’ve faced in accessing the mental health services system and securing services for their adult son who has suffered a traumatic brain injury, substance abuse, and mental illness. They noted that due to lack of services, including a lack of housing, their son has often ended up in jail. Judge and Mrs. Wilcox recommended improving education for those involved in the criminal justice system to enable them to assist individuals with behavioral health needs. Judge Wilcox also noted that the mental health docket in Norfolk has been a success and that it has saved money and lives.
October 8, 2015
The Small Business Commission held its second meeting of the 2015 interim on October 8, 2015, in Richmond, with Delegate Daniel Marshall, vice-chair, presiding. The meeting began with an introduction of the Commission members, including three new members appointed by Governor McAuliffe: Deborah S. Baum, Albert S. Diradour, and Ssunny Shah.
on the Status of Implementation of Senate Bill 1372/House Bill 1986
Senate Bill 1372/House Bill 1986 made several changes to the state’s workforce development system. Ms. Dunnigan provided the Commission with an overview of the implementation of the improvements envisioned by the legislation by the Virginia Board of Workforce Development. The Board receives and administers workforce development and training funds provided to the state under the federal Workforce Innovation and Opportunity Act of 2014 (WIOA). Ms. Dunnigan stated that in June 2015 the Board adopted its first two-year strategic plan, setting out areas of focus to address performance of the Board’s critical functions described in the legislation. Ms. Dunnigan proceeded to review the activities of the Board in several key areas under the legislation.
Board committee structure. As required by the legislation, the Board has established four standing committees: Advanced Technology, Performance and Accountability, Military Transition, and WIOA. Each standing committee has developed a focus that is specific to its charge. Ms. Dunnigan indicated the establishment of the standing committees has moved the Board beyond thinking solely in terms of programs to thinking more broadly about the state and regional supply and demand of skilled workers to meet business needs.
Investment in skill development. The legislation called for increasing the percentage of WIOA Title I funds dedicated to workforce training. Reporting requirements have been established by the Virginia Community College System (VCCS) to obtain results from each local workforce development area. Ms. Dunnigan noted that while it is too early in the implementation process to draw conclusions, it is believed that the requirements have already had a positive impact. In addition to targeting more resources and providing training leading to credentials, which was the key intent of the law, the initiative has led local workforce development boards to examine One-Stop operations and develop more efficient methods for delivering services and sharing costs.
System performance and accountability. Ms. Dunnigan stated that a key component of the legislation mandated all workforce agencies to begin reporting on common state-level performance metrics. This requirement applies to at least 23 different publicly funded programs under eight state agencies. Ms. Dunnigan asserted that the Board has identified five performance metrics: (i) business engagement, (ii) workforce credentials, (iii) jobs, (iv) wages, and (v) rate of return.
Cross agency collaboration. To increase the accountability of the state’s workforce programs the legislation requires agencies within the workforce system to develop a Memorandum of Understanding (MOU) establishing the roles and responsibilities of each agency. The agencies involved are the Virginia Employment Commission (VEC), the Department of Aging and Rehabilitative Services (DARS), the Department of Education (DOE), and the VCCS. According to Ms. Dunnigan, the MOU is anticipated to be completed by the end of calendar year.
Data for enhanced decision making. This component involves the development of better, more reliable data to drive decisions regarding the allocation of resources. Ms. Dunnigan stated the Board is working with the Virginia Chamber of Commerce, the VEC, and other partners to conduct a statewide survey of 40,000 employers to develop data on what industry is looking for in terms of skills and workforce credentials. The Board is also working on development of state and regional supply and demand dashboards.
Statewide workforce planning. Ms. Dunnigan shared that the Board has initiated the state’s first combined state plan for all major federal workforce programs. Once completed, the plan will establish the unification of major career and technical education and workforce programs under shared goals and performance metrics.
At the close of Ms. Dunnigan’s comments, Chairman Frank Ruff noted that while it is easy to identify large employers, identifying and reaching smaller businesses is a much more difficult task. He stated that such businesses do not speak with one voice and that it will be incumbent on the Board to translate the needs of smaller businesses into action and to consider the needs of such businesses in future planning. Ms. Dunnigan responded that the Board conducts outreach to smaller businesses but it can do a better job. Chairman Ruff further noted that it will be important to allow the VCCS to put more funding into programs that do not provide credentials programs.
Review of Referred Legislation; House Bill 2347
Amigo Wade, DLS Senior Attorney, presented revisions made to House Bill 2347 based on the actions of the Commission at its May 26 meeting. As introduced, the bill would have added a definition of microbusiness, authorized a locality to establish a microbusiness procurement program, and allowed localities to waive bid, performance, and pay bonding for nontransportation construction projects between $100,000 and $500,000 without having to undertake a prequalification process. The bill was initially presented at the earlier meeting by Delegate Scott Taylor, the bill’s patron. By consensus the Commission had suggested that the microbusiness provisions be removed, and Delegate Taylor agreed.
The redraft of the bill removed the microbusiness provisions and contained only the provisions authorizing a locality to waive bid, performance, and pay bonding for nontransportation construction projects between $100,000 and $500,000 without having to undertake a prequalification process. Chairman Ruff called for comment on the redraft. Steve Vermillion of Associated General Contractors of Virginia expressed concern that allowing the waiver of the bonds may adversely affect the small subcontractors on a project. Based on the concern, the Commission decided to defer final action on the redraft to its final meeting when Delegate Taylor could be present.
Department of Labor and Industry, Virginia Occupational Safety and Health
Program; Worker Misclassification Pilot Initiative
After a brief introduction from Commissioner Davenport, Robert Field, Senior Staff Attorney, presented to the Commission on the background of the pilot initiative. In 2012, the Joint Legislative Audit and Review Commission (JLARC) released a report titled “Review of Employee Misclassification in Virginia.” Misclassification occurs when an employer improperly classifies a worker as an independent contractor when the worker should be classified as an employee. While the act of misclassification is itself not illegal, the practice may result in payroll fraud and violations of the state tax code, Workers’ Compensation Act, and other laws designed to protect workers. The JLARC report found that employers who properly classify their workers pay higher payroll taxes than those who misclassify because the amount of that tax is based on the businesses’ number of employees. According to the report, misclassification costs the state millions in tax revenue annually. Employers who misclassify their workers may translate the lower business costs to undercut the bids of contractors who properly classify their workers. Misclassified workers are ineligible to receive unemployment insurance or workers’ compensation benefits. Additionally, misclassified workers may not take advantage of overtime pay and antidiscrimination protections. The report recommended the establishment of an interagency task force to review the problem and develop statewide strategies.
By Executive Order 24 (2014), Governor McAuliffe established the Inter-Agency Task Force on Worker Misclassification and Payroll Fraud (Task Force). The Task Force is chaired by the Maurice Jones, Secretary of Commerce and Trade, and included the Department of Labor and Industry (DOLI), the VEC, the Department of Professional and Occupational Regulation (DPOR), the Bureau of Insurance, State Corporation Commission (BOI), the Workers’ Compensation Commission (WCC), and the Department of Taxation (DOT). The Task Force reviewed statutes and regulations related to worker misclassification and payroll fraud and evaluated the current enforcement practices of all agencies involved. Mr. Field stated the Task Force found that many of the state agencies did not track the issue on their respective information systems. One of the Task Force’s initiatives provides that when Virginia Occupational Safety and Health (VOSH) Program inspectors visit a construction worksite, each contractor is asked to provide proof of his or her licensure as a contractor and proof of such licensure for any of the subcontractors. Mr. Field explained that VOSH conducts inspections in response to complaints, referrals from other government entities, and reports involving amputations, fatalities, or imminent danger. Vice-Chair Marshall asked for a breakdown of the types of businesses that are frequently involved with misclassifying workers. Mr. Field responded that the issue does not come up very often in industries such as manufacturing and that it most often occurs in the construction industry. He stressed that VOSH can only go on the site if there is a safety issue or to inquire into employer-employee relationships related to possible misclassification. Delegate Tony O. Wilt asked how misclassification is connected to a safety inspection. Mr. Field replied that a component of every VOSH inspection is the determination of the existence of any employer-employee relationships at the worksite. On multi-employer construction worksites the inspector has to determine which employees are working for which employers. Each contractor, including general contractors, prime subcontractors, and other subcontractors, are asked to provide proof of licensure from the Board of Contractors (BOC). When it is determined that a construction employer has contracted with an unlicensed subcontractor, VOSH will make a written referral to the DPOR, which conducts investigations for the BOC. An investigation is conducted, and if the allegation is supported by the evidence, the BOC may proceed with disciplinary action in the case of licensed individuals or referral to the local attorney for the Commonwealth to consider prosecution in the case of unlicensed individuals. Mr. Field introduced Jay Huffton, Norfolk Region Compliance Officer with VOSH, who provided an example of how a safety inspection may lead to a referral to the DPOR.
Delegate R. Lee Ware asked if there were patterns regarding industries and if the practice was more pervasive now. Commissioner Davenport noted that VOSH is finding the issue primarily on residential construction projects but that there may also be issues with larger projects at the second- or third-tier subcontract level. Regarding the pervasiveness of employee misclassification, Commissioner Davenport stated they tend to see more worker misclassification today, but he emphasized that it is difficult to determine specifically if the practice is on the rise because things were not being documented or tracked. He further noted that a contractor who is playing by the rules by properly classifying his workers as employees is at about a 26 percent disadvantage in terms of costs. Chairman Ruff asked if the misclassification pilot initiative is part of a larger national effort. Commissioner Davenport replied that it was and that the Internal Revenue Service and the federal Department of Labor had entered into a MOU with 27 states on the issue. Chairman Ruff noted that there seemed to be an effort at the federal level to move more workers to employee status thereby essentially doing away with independent contractors. He asked if federal funding was being provided to assist states. Commissioner Davenport replied that the VEC had just been awarded a $500,000 grant to reinforce its auditing procedures.
At this point, Maurice Jones, Secretary of Commerce and Trade, joined the meeting. Secretary Jones stated that the VOSH program involved several state agencies. He noted the JLARC report found that as many as 47,000 businesses in Virginia misclassify over 200,000 employees, resulting in between $1 to $1.3 million in lost state revenue annually. Currently the state does not have a unified statewide effort, and that is what led to the pilot initiative. Secretary Jones asserted that the state must do a better job of educating the public about the issue, making it easier for citizens to contact agencies when a problem is suspected, and encouraging more information sharing among agencies. Currently, the various state agencies involved receive “snapshots” of information surrounding a worker’s status, and there is no framework for the different snapshots to come together to create a fuller picture. The VEC and the DOT have put in place a MOU to facilitate information sharing between the two agencies. Secretary Jones stated that the grant received by the VEC will help in the effort to develop hard data in order to determine whether there is a real issue regarding misclassification. The current pilot initiative will be completed in December, and after the information is reviewed recommendations are anticipated.
Albert Diradour asked if a cooperation agreement existed to allow the building officials to share information they developed during building code compliance inspections. Mr. Field replied that there is cooperation between building officials and the DPOR on the licensing issue. Delegate Wilt expressed concern that when VOSH inspectors suspect misclassification, they immediately issue penalties. He asserted the education component was being forgotten. Secretary Jones responded that the bulk of the agency’s recourses were being spent on education. Mr. Field clarified that the inspectors were not issuing penalties for the misclassification, but rather the employers were not being allowed a penalty reduction. Delegate Wilt contended the result for the employer is still an additional penalty because they do not receive the penalty break normally allowed.
Certified Work Ready Community Designation
Secretary Maurice Jones informed the Commission that Henry County had become the first Virginia locality to achieve the designation of a Certified Work Ready Community by American College Testing. The designation will help Henry County attract new businesses and jobs because it is used by site selection managers across the country when businesses are considering relocating. The designation also strengthens the region’s workforce. The basic criteria that must be met to achieve the designation include having at least (i) 2,500 persons pass a test to become certified as work ready, (ii) 190 employers provide confirmation that the designation is important to them, and (iii) a 70 percent high school graduation rate. In addition to Henry County, five neighboring southern Virginia localities are on track to become fully certified within the next six months. Those localities include Patrick County, Pittsylvania County, Halifax County, and the cities of Danville and Martinsville. Greensville County and the City of Emporia also commenced the process to obtain the designation in August.
Report on SWaM Task Committee
Secretary Jones stated that the Task Committee consists of representatives from a broad range of major industry sectors. They have been working on an approach that centers on the principle of defining a small business based on the contractor’s or vendor’s industry. He further stated that the proposal developed by the Task Committee will be introduced as legislation in the 2016 Session of the General Assembly. Delegate Alfonso Lopez, a member of the Task Committee, stated the group is very close to reaching a consensus.
Chairman Ruff asked if any problems or negative trends associated with the microbusiness designation and program had developed. Secretary Jones replied that while microbusinesses were benefiting from the change, there were still some problems. He stated that if the state were able to recommend a better definition of small business, then the microbusiness designation would go away. Chairman Ruff stated that state agencies had indicated to him that purchasing costs had risen on account of the required use of microbusinesses. He asked if there was a way to determine if agencies are paying more under the mandatory microbusiness purchasing program. Secretary Jones replied that if agencies are paying more under the program, then it is an execution problem and not a policy problem. Chairman Ruff asserted there was a need to include a cap on how much more an agency will be allowed to pay procuring under the microbusiness set-aside.
of Professional and Occupational Regulation, Board for Contractors
Director DeBoer began with a brief overview of the history of the contractor regulatory program and the requirements for licensure and certification. Director DeBoer proceeded to describe the regulatory framework. Contractor licenses are issued to business entities, not individuals. The regulatory framework for contractors in Virginia is based on two categories, license class and license classification/specialty. License class is how much work a contractor is allowed to perform. There are three license classes, with the highest being the Class A license. This license allows the contractor to perform projects without limitation in terms of the single project amount or annual aggregate of projects. The second class of licensure is the Class B license, which has a single project limit of $120,000 and an annual aggregate limit of $750,000. The lowest class of licensure is the Class C license, which caps single projects at $10,000 and the annual aggregate limit at $150,000. There are five broad contractor classifications: building, electrical, highway-heavy, heating-ventilation-air conditioning, and plumbing. There are a total of 38 specialties that operate as narrower areas of specialized expertise. Different tests or credentials are required to qualify for the individual classifications and specialties. In terms of licensure, a contractor must decide which class of license he desires and then determine the classification and specialty for the business. Exceeding the limits of the license, whether by contract amount or scope of work, is a regulatory violation. Director DeBoer stated that for individual cases the goal is to obtain compliance. If discipline is required, the BOC resolves cases using voluntary negotiated consent orders and traditional final orders. The BOC does not have jurisdiction over unlicensed individuals or businesses. Practicing without a required state license is unlicensed activity, which is a criminal violation. In unlicensed activity cases, the BOC also attempts to bring the individual into compliance. If compliance is not obtained, the BOC will assist the local attorney for the Commonwealth in bringing criminal charges.
Director DeBoer noted that bona fide employees of a contractor work under the authority of that contractor’s license. A contractor risks a regulatory violation if he hires an unlicensed subcontractor as an independent contractor instead of an employee. As a defense to an allegation of hiring unlicensed subcontractors, a contractor may provide the DPOR with documentation to prove the contractor used reasonable due diligence in verifying the license status of the subcontractor before hiring. Delegate Lopez asked what “due diligence” means in terms of verifying licensure. Director DeBoer replied that examples of exercising due diligence include checking the subcontractor’s license status through the BOC’s website and asking the subcontractor directly for proof of licensure. Chairman Ruff asked why there were so many specialties. Director DeBoer stated the intention is to allow contractors to take the classification/specialty exam on a single subject area if that type of work is all that they plan to do.
Regarding the pilot initiative, Director DeBoer indicated that since the beginning of July 2014, the agency has received 49 referrals from VOSH officers. Of that number, 27 (55%) were received as of July 1, 2014, the effective date of the VOSH pilot initiative. Several of the VOSH complaints have already been closed without disciplinary action for a variety of reasons, including (i) the licensee helped an unlicensed subcontractor come into compliance, (ii) a license had been valid at the time of hiring, but subsequently lapsed, and (iii) insufficient evidence of a violation. Consent orders have been used in several instances. The average negotiated settlement has consisted of a $700 monetary penalty and a required remedial education course. Director DeBoer emphasized that individual contractors make decisions regarding licensure based on what fits their business objectives and economic realities. These decisions include which class or specialty is the best fit and whether to hire employees or subcontractors to perform certain jobs. DPOR does not enforce labor or employment laws and does not get involved with how an individual licensee decides to structure his business in terms of overall staffing. Any DPOR inquiry would be limited to allegations of improper use of unlicensed contractors or subcontractors.
Mr. Stafford indicated that he is in the passenger-for-hire transportation business. He asserted companies that use applications to connect riders with drivers, such as Uber and Lyft, do not provide any protections to their drivers. He noted a case decided in California that found that an Uber driver is an employee rather than an independent contractor. Mr. Stafford stated there is a safety net issue because the drivers are not covered by the VEC or WCC.
Nicole Riley, State Director, National Federation of Independent Businesses
Ms. Riley stated the National Federation of Independent Businesses, which consists of over 6,000 business owners, and a broader coalition of interested entities have been following the independent contractor issue. At the federal level, enforcement efforts are being used to reduce the number of independent contractors by focusing on determining license status rather than safety. She stated that her organization wanted to make sure that the actions at the state level do not hinder the legitimate use of independent contractors. If it is an issue of educating the public, then it should be advertised as such. That is not, however, how the pilot initiative is proceeding from a practical standpoint. The bulk of the time that is spent by agencies involved in the pilot initiative seems to be focused on determining license status rather than safety, which is the main purpose for the VOSH inspection. Ms. Riley further stated that the data used by the JLARC in its study was based on random samples obtained from the VEC. Such data cannot be used to make general statements regarding the status of the misclassification issue in the state, she said.
Mark Singer, Virginia Utility and Heavy Contractor Council
Mr. Singer stated the Virginia Utility and Heavy Contractor Council had three major concerns with the pilot initiative: (i) public policy, (ii) implementation, and (iii) educational emphasis. Regarding the public policy concern, Mr. Singer noted that the initiative involves asking a state agency to drift from its primary responsibility and was putting VOSH inspectors in the difficult position of trying to interpret employment and labor laws as well as contractor licensing statutes. In addition, the extra emphasis must have the effect of taking VOSH inspectors away from focusing on the safety issues that may be found at a given site. In terms of implementation of the pilot initiative, Mr. Singer stated that on more complex projects there may be a host of relationships that are not easily resolved by asking what appears to be a simple question. There may be a single prime contractor with two to three major subcontractors and a host of other subcontracting relationships. Mr. Singer expressed concern that VOSH inspectors were not receiving the proper training to be able to negotiate these very complicated relationships. He further noted that there should be no connection between the misclassification allegation and the allowance for a reduction in a safety fine for good faith. The educational emphasis must be the focus of the effort because the issue is extremely complicated and guidance is needed. Above all, the pilot initiative requires agencies to step outside of their statutory missions, which results in a drift that could create serious policy implications.
Steve Vermillion, Associated General Contractors
Mr. Vermillion stated that the JLARC study included a bias against the construction industry. He asserted four types of businesses were cited as having misclassification problems, but the construction industry is the only industry subject to the inspections.
Virginia Retail Merchants Association
A representative of the Virginia Retail Merchants Association stated the National Labor Relations Board found that franchisees fall under labor and employment rules. As a result, the retail industry has to pay very close attention, as such an application of the rules may serve to make the franchisor responsible for the misclassification of employees.
Keith Martin, Virginia Chamber of Commerce
Mr. Martin stated that 30-40% of the economy involves independent contractors, which emphasizes the importance of independent contractors to the state’s economy.
Joe Legends, Independent Insurance Agents
Mr. Legends noted that the state’s Workers’ Compensation Act includes a definition of employee that applies regardless of whether the business classifies the individual as an employee.
Samantha Caudullian, Capital Strategies
Ms. Caudullian invited the Commission to attend a summit scheduled for November 20, 2015, in Springfield.
The following legislative commissions and committees are not staffed by DLS. They also hold regular meetings during the interim. Visit their websites to obtain full information regarding their meeting dates, agendas, and summaries.
GAB: General Assembly Building, Capitol Square, Richmond
© 2015 Division of Legislative Services. Published in Richmond, Virginia, by the Division of Legislative Services, an agency of the General Assembly of Virginia.