Constitutional Officers–The Problem

Our recent discussion of the primary elections and an incidental comment by Steve Haner were the catalysts to get me to develop a posting that I had been mulling over for awhile. The system of elected administrative officers established in the Virginia Constitution for local governments needs to be abolished.

These officers, called constitutional officers for obvious reasons, and their primary responsibilities, are:

  • Circuit court clerk—responsible for the administration of the circuit courts: preparing trial transcripts, handling jury lists, preparing orders, etc.  The office is also the depository of the locality’s land records (deeds, liens, etc.) and wills.
  • Sheriff—responsible for law enforcement in many localities, administration of the jail, provision of courtroom security, and service of legal processes.
  • Commonwealth’s Attorney—chief criminal prosecutor.
  • Commissioner of the Revenue—property assessor and processor of income tax returns
  • Treasurer—collects tax and other state and local revenue and deposits funds into appropriate accounts; invests funds of local government

All officers are elected for four-year terms, except the clerk, who has an eight-year term. The Constitution requires that each city and county have these officers, although it also provides that localities can share officers and that localities can abolish the offices, if approved by referendum.  

The constitutional officers have a long history in the Commonwealth. Some of them date to Colonial times. The current structure was established in the 1902 Constitution and subsequent amendments and continued without substantive change in the most recent Constitution (1970). Their basic function was to administer state functions (judicial system, tax collections, etc.) at the local level. In some cases, they administered local functions as well. In many counties, the clerk of the circuit court also served as the clerk of the board of supervisors, thereby functioning as an ad hoc county administrator. As late as the mid-1980’s, the clerk in at least two rural counties served in this dual capacity.

In addition to their administrative functions, the constitutional officers also had a political function. During a large part of the 20th century, they were an essential component of the Byrd Machine. Being elected officials, they had their constituencies that they could marshal in support of the Machine.  They were Byrd’s eyes and ears in each locality.  They were the core of the courthouse politics that dominated the era.

In the beginning, most, if not all, of the funding of the constitutional officers came from the state. The state appropriations for the offices were administered by a state agency, the Compensation Board. The budget of each constitutional office had to be approved by the Compensation Board. With his lieutenants in charge of the Compensation Board, Byrd was in a position to ensure loyalty among the locally elected officials. If any constitutional officer defied Byrd or otherwise strayed from the party line, his budget was likely to be adversely affected.

Not only has the constitutional officer system outlived its usefulness, it now is a hindrance to better local government. Each county, even the most rural ones, has a professional manager and staff to administer the affairs of the county and the policies of its board of supervisors. However, constitutional officers, who are not answerable to the country administrator or Board of Supervisors, have responsibility for vital county functions such as law enforcement, tax assessment, and general fiscal matters. Those officers may or may not agree with the policies of the Board of Supervisors.

It is not enough to say that these officials are responsible to the voters. In many cases, the voters are not even aware of the offices and the identity of the elected official. More importantly, several of these offices are largely ministerial in nature and should not be involved in the political process. As it now stands, anyone, no matter how qualified, can run for these offices. A lawyer who has never argued a case in court can run for Commonwealth’s attorney. Someone with no fiscal background can run for treasurer. And so on. Given the nature of elections, such unqualified persons could be elected.

It needs to be noted that these criticisms are less applicable for most cities and some counties. In their charters, most cities have a director of finance (or a position with a similar title), rather than the elected commissioner of the revenue and treasurer. The same is true of those counties, such as Arlington, Fairfax, Prince William, and Henrico, which have adopted one of the optional forms of government. Similarly, for cities and urban counties, an appointed chief of police is responsible for law enforcement, rather than the sheriff.

One of my former managers had a policy, applicable to him regarding his boss and to us in relation to him: Don’t bring a problem without also bringing a solution. I always thought that was good advice. In a followup post, I will pose some solutions to the problem I have presented here.

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11 responses to “Constitutional Officers–The Problem

  1. “Their basic function was to administer state functions (judicial system, tax collections, etc.) at the local level.” Yes, but I don’t see in your discussion any mention that these constitutional offices perform legal and financial functions that (if you believe in the rule of law) must be performed and, by virtue of the State’s involvement, will be performed and paid for even in failed jurisdictions (Petersburg, anyone?). Should we abandon that measure of civic safety net?

    • Petersburg has all the constitutional officers. The sheriff is responsible only for court security and service of process. The city has a police department that handles law enforcement and it is a member of a regional jail. The funding of these offices is shared by the state and local government. Petersburg’s problems go beyond the functions of these offices.

  2. Oh brother are you singing my song….

    In some cases the jobs should be under the locality’s professional management and in some cases they could be appointed by the governing body and thus be independent of that city-county manager (but accountable to the board!). The circuit judges can pick their clerk and pay half what those jobs now pay. Of all of them, the one I think has best case to remain an elected office is the Commonwealth’s Attorney. I look at that new choice in Arlington (from afar) and see a very experienced defense lawyer who may prove very competent (if controversial.)

    An incompetent treasurer is among the most dangerous situations, an obnoxious commissioner of the revenue the bane of taxpayers, and many sheriff’s departments are just patronage factories. Yes, my old man was a city manager and I watched him struggle with (and eventually work around) the old feudal system and that colored my attitudes, but it grew from there. Yes, I said feudal – these go back to ancient England. King of England = Byrd Machine. Same deal.

  3. I couldn’t agree more with these sentiments. Elections of constitutional officers are useless throwbacks to an era that no longer exists.

    I wrote on this topic about three years ago after the Montgomery County Clerk of the Court summarily dismissed more than half her staff after her reelection…. Why? Because in true Byrd fashion, she was ticked — they didn’t strongly support her in the election.

    I might disagree with the author a bit. I prefer to see the Commonwealth Attorney and, possibly, the Sheriff accountable to the people. But the others are purely administrative functions that ought to be under the aegis of the county administrator.

    For my views, see: https://www.roanoke.com/opinion/commentary/hincker-do-we-really-need-to-elect-the-county-record/article_fe602645-3819-5d6f-afad-46cdeef7495f.html

  4. Dick – you continue to contribute really excellent topics informed with your knowledge to the blog and this is yet another example. Thank You!

    As you may have noticed, sometimes I take a contrarian position to keep things lively (I’m sure Jim and Steve have another word for it)!

    So I’d ask if the idea of the State assuring that State standards are implemented consistently across the state is a valid reason and keeps Virginia from having jurisdictions establish Boss Hogg type situations.

    And let me give one example where there are concerns. DSS is some combination of State and Local and they deal with a wide variety of situations
    involving kids as well as the elderly and we had a situation where parents refused medical treatment for a child and the doctors reported it to DSS and the child was removed to foster care until it was sorted out. The parents went to the DSS and decided to try to intervene and have more control over the agency head and policies – an area they had little professional knowledge of as well as some differing philosophical views of what DSS should do or not do.

    I saw this as not a good thing and especially so if the State just ended up delegating the who thing to the locality and each locality sort of did what the stronger local leaders wanted.

    I’m sure there is a counter-argument you may have and would be interested in your views.

    • Steve is correct. The local DSS does not come under a constitutional officer. But, it does have both state and local elements. The state sets general policy and the localities administer them. And the funding is divided between both levels. The director of social services is appointed by the local board of social services. The state code provides, however, that the “board” can be “at the discretion of the governing body of the county [or city], either a local government official or a local board consisting of residents of the county [or city]”. Therefore, the “board of social services” can be the county administrator or city manager. This is the only instance that I know of in which a single person can function as a board.

  5. Dick, thanks for the history lesson.

    I largely agree with the sentiments expressed above. The functions of Treasurer and Commissioner or Revenue should be consolidated with each locality’s finance office. I don’t know how much redundancy exists in the current system, but I suspect it is not inconsiderable.

    County clerks should be selected by circuit court judges.

    Commonwealth attorneys should remain a separate, elected office. An independent prosecutor is necessary to maintain checks and balances at the local level. You don’t want your prosecutors to be tools of the local political boss.

    Sheriffs? I’m open to other arguments, but most county sheriffs departments have evolved into police departments in everything but name. The law enforcement apparatus (as opposed to the prosecutors) should be answerable to those running the county government.

  6. So we need more local officials who are NOT responsible to the voters but who instead are beholden to the County Administrator who is also NOT responsible to the voters but INSTEAD IS beholden to the Supervisors . . . who ARE elected, but of course have no special training themselves.
    What we have here is a classic solution in such of a problem.

  7. Larry, there is no elected “constitutional officer” overlooking the DSS operation in the locality – that’s the governing body’s job. But you do point to another example of how Virginia’s current system of funding and oversight is divided, duplicative, confused and harkens back to more simple times. JLARC pointed out how that has added to the problems with the foster care system, and another JLARC autopsy on other parts of the system is expected soon.

    Warren, in many places the duplication is already in place. The city or county staff has taken over the jobs, is doing the daily work, and the constitutional officer is merely a figurehead. (THAT will get juices flowing :))

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