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Litigation
now pending in the Circuit Court of the City of Richmond
by the
James Monroe Memorial Foundation against Gov. Mark
R. Warner is the latest installment in a sad story
of the Commonwealth
of Virginia’s
treatment of a major donor.
The
James
Monroe
Law
Office
Museum
and Memorial Library in Fredericksburg
was established in 1927 by Laurence Gouverneur Hoes,
the great-great-grandson of James Monroe, to honor
President Monroe’s accomplishments.
Artifacts related to the president were
collected from family members or purchased, and a
museum and library were established at the site of
President Monroe’s former law office in Fredericksburg.
In
1947, the James Monroe Memorial Foundation was
established by Laurence Gouverneur Hoes to own and
operate the museum and to provide for educational
and preservation programs related to President
Monroe.
The
museum was given to the Commonwealth in 1964 by the
foundation, subject to a number of conditions.
One of the conditions in the 1964 deed of gift was
that the state agency created to operate the museum,
the Board of Regents of the James Monroe Law Office
Museum and Memorial Library, would have half its
members nominated by the foundation and half
nominated by the University of Virginia.
The General Assembly passed legislation
expressly to accept the terms of the deed of gift.
The foundation has continued to be actively
involved with the museum since 1964, providing the
museum with artifacts and financial support.
With
the creation of Mary
Washington
College
in 1972, the assets of the University
of
Virginia in Fredericksburg
were transferred to Mary Washington, with sweeping
language in the transfer statute as to the powers of
the college. The
foundation reluctantly agreed to this transfer on
the basis of verbal promises from the then-president
of Mary Washington that nothing would change in the
relationship.
In
1981 the college successfully sued the foundation,
claiming that the language in the 1972 transfer
statute had given Mary Washington control over the
museum and that the role of the Board of Regents was
merely advisory.
In
2002, another round of betrayal began.
At the
request of the college, Sen. John Chichester,
R- Fredericksburg, put language in the budget bill
allowing the governor to name whomever he desired to
the Board of Regents, as opposed to accepting half
the nominees from the foundation and the other half
from Mary Washington.
In
November 2002, at the urging of the college, the
governor ignored the foundation’s nominees and
appointed a Board of Regents composed only of Mary
Washington’s nominees.
Since most of these members are now Mary
Washington employees, the governor has created an
advisory board in which the college is essentially
advising itself. Shortly
after their appointment, the members of the new
board voted to abolish it. However, the Joint
Legislative Audit and Review Committee rejected this
violation of the original deed of gift.
The
attorney general’s office advised the governor’s
counsel that the governor’s fall 2002 appointments
violated the deed of gift, and the foundation would
prevail if it sued the commonwealth on this issue.
In the 2003 General Assembly, both the House
and Senate Privileges and Elections Committees
unanimously rejected the governor’s nominees. Sen. Chichester worked behind the scenes to
persuade both the House and the Senate to ignore the
committee reports and to approve the nominees.
The governor has refused to make new
appointments consistent with the deed of gift.
In
March 2003 the foundation sued Gov. Warner to
nullify his appointments to the Board of Regents, to
make new appointments consistent with the deed of
gift, and to affirm the terms of that agreement.
The illegally constituted Board of Regents
has elected new officers and amended its bylaws in
ways that violate the terms of the deed of gift.
The
Commonwealth’s defenses against the current
litigation include claims that, because the Board of
Regents is now merely an advisory board, the
Commonwealth is free to ignore all legal
requirements with respect to that board, including
presumably the Freedom of Information Act, conflict
of interest, and other legal requirements normally
applicable to state advisory boards.
A
hearing that is likely to determine the outcome of
the case was scheduled to be held June 23, 2003.
Issues
posed for the Commonwealth by this case include the
following:
Will
the Commonwealth honor restrictions on gifts by
major donors? If
a major donor gives funds to a
Virginia
public university to construct and provide operating
endowments for an art museum named for the donor, is
the university free to cancel plans for the museum
and transfer the funds to the athletic department?
Is
the 2002–2003 budget provision an impairment of
contract by the legislature in violation of the U.S.
and Virginia Constitutions?
Can
the Commonwealth ignore all legal requirements for
advisory boards?
Is
the Commonwealth’s word no longer its bond?
--
June 30, 2003
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