Constitutional Officers–The Solutions

As I indicated in an earlier post, I will propose some alternatives to the elected constitutional officer system currently in place in Virginia. Commenters to that post have already suggested the same solutions I will set out, with the exception of one office.

Treasurer and Commissioner of the Revenue—abolished, with each city and county authorized to establish a finance director, whose office would perform functions of both the treasurer and commissioner. This one is the most obvious of all the alternatives.  Each local government should have total control over its finances.  The funding for the new office would come from local coffers.

Circuit court clerk—appointed by the chief judge of the circuit court. This position is the administrator  of the court and it is logical that the judge make the appointment.  This is the same method used to fill the position of district court clerk.  The state would pay all the costs of operating these offices.

Sheriff—Here are the most drastic changes. I propose abolishing the position of sheriff and distributing the functions of that office as follows:

  • Courtroom security and service of process—a position (bailiff, maybe?) appointed by the chief judge of the circuit. The state would pay for the costs of this office.
  • Law enforcement—Each county would be authorized to establish a police force. (Current law makes it very difficult for a county to do this.)  Because law enforcement is a core function of local government, the costs of this service would be borne by the locality.
  • Jail operation—The responsibility of operating local and regional jails would be transferred to the state Department of Corrections. DOC and the jails now must work together closely in transferring prisoners back and forth.  Nevertheless, there is some awkwardness and, sometimes, tension in the process.  Having DOC in charge would ensure a continuum of operation and reduce redundancy.  For example, there are now two data systems used to track inmates—one for jails administered by the Compensation Board and one for DOC inmates.  These two systems are not adequately interfaced, thereby leading to unnecessary data entry on both sides.  Finally, with DOC in charge, there would be experienced correctional administrators running the jail, which is not always the case with sheriffs, and the policies used would be consistent throughout the state.

Commonwealth’s attorney—This one was the hardest to decide upon. None of the alternatives to direct election—appointment by the circuit court judge; appointment by the Governor; appointment by the Attorney General;  or election by the General Assembly, similar to judges—seems satisfactory.  Interestingly, a 1928 report of a governmental reorganization study, commissioned by Harry Byrd when he was governor, supposedly contains a serious discussion of using an alternative to election for choosing the Commonwealth’s attorney.  Unfortunately, that report is not available online.  Because there was no change, the report must have come to the same conclusion that we have.  Therefore, I proposed leaving this position an elected one, with the full costs of the office being borne by the state.

Now to the money.  For FY 2020, the Appropriation Act provides $691.5 million from the general fund to pay the costs of the constitutional officers and the Compensation Board.  For the local offices, the costs are split between the state and localities.  Listing the various formulae used to distribute the state funding would make for very tedious reading.  In addition to their required shares of the various costs, local governments can, and very often do, supplement the required state match with additional local money.  The local governments regularly complain that the state does not fund enough positions to operate the various offices efficiently and effectively.

The proposals outlined above would have varying fiscal effects.  The state would save the $29.1 million it appropriates related to treasurers and commissioners of the revenue and the localities would have to pick those costs up.  Similarly, the state would save that portion of the $465.3 million appropriated for sheriffs that is related to law enforcement.  On the other hand, the state would have to pay all the costs of the clerks, Commonwealth’s attorneys, bailiffs, and, the big one, jails.  I do not have sufficient data to calculate how all that moving money around would end up, but I suspect that the state would be on the losing end because of the jails.

There is another pot of money that should be in play that should help even out the fiscal impact.  This is the “599 money”.  Established in 1979, the intent of this appropriation was to provide funding to those localities that had police departments, thereby offsetting the advantage provided by the state’s funding of sheriffs’ law enforcement activities in rural counties.  (This provision was part of the comprehensive annexation package passed that year.)  If all counties were to be authorized to form police departments and the state no longer funded the law enforcement activities of sheriffs, the justification for the 599 appropriation would no longer exist.  For FY 2020, $191.7 million is appropriated for this program.

Hall-Sizemore Soapbox:  I am under no illusion that the proposals I outlined above, or any variation of them, will be enacted anytime soon.  There are too many vested interests that would be opposed and no countervailing clamor for change.

The Virginia Sheriffs’ Association is the strongest organization among the constitutional officers and the members of the General Assembly give it a great deal of deference.

Although they do not have the influence they had even twenty years ago, the other constitutional officers still carry some weight.  After all, they are elected officials with their own constituencies, and legislators respect that.  The last effort to make a dent in the system was with Governor Kaine’s last introduced biennial budget , proposed to the 2010 Session.  That was the period in which, even after cutting billions in spending, the Commonwealth was still facing a multi-billion dollar shortfall.  The Governor proposed eliminating funding for the local activities related to the treasurers and commissioners and, in return, authorizing counties to establish their own departments of finance which would take over the duties of those constitutional offices.

The General Assembly did not even seriously consider the proposal.  At that point, those of us in the Department of Planning and Budget who had worked on the recommendation to the Governor gave up.  We decided that, if the General Assembly was not willing to reduce the scope of the state’s support of constitutional officers and save $22.5 million in the face of multi-billion dollar shortfalls, it would never be willing to act.

Taking on the task of reorganizing governmental structures is a hard and, most often, a thankless task.  It does not elicit the popular enthusiasm that education, taxation, law enforcement, economic development, zoning, etc. do.  Most citizens do not see how the structure matters or affects them.  In addition, it is a complex subject.  In working on this post, I thought of numerous details and objections that would be raised and need to be worked through.  In summary, there would be little immediate political payoff for having taken on abolishing the elected constitutional officer system and modernizing local government in Virginia.  That is unfortunate, for such an effort, if successful, would result in a more rational, efficient, and effective government system for Virginia’s citizens.

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4 responses to “Constitutional Officers–The Solutions

  1. I’m someone who likes standards – public and private. I like the laws to be the same in all jurisdictions in Virginia and I don’t like different local versions.

    The interstate highway system is an example of standards. Imagine what it would be like if every state and every locality did this according to their wants?

    When I’m in Amelia county, I HOPE that the Sheriff or DSS or their tax office does business the same way they do in Fairfax or Emporia.

    So perhaps the Constitutional officers are an obsolete vestige but I do wonder the trade off between voters holding someone directly accountable versus an unelected Administrator.

    There is an additional concern if the Constitutional officers are hired and fired locally by the various Boards of Supervisors who get elected. Does this open us up to “machine politics”?

    In short, I think there are some pros and cons – and I’d like to see the pros and the cons before I am going to be comfortable agreeing that these positions are outmoded ESPECIALLY since I see how localities can influence agencies like DSS – who is TRYING to follow State law and State level policies and the local politics are not.

    When it comes to fiscal accountability – do we just delegate all of it to the locality or do we require adherence to State Standards?

    In Spotsylvania, if they had their way – no tattoo businesses would be allowed anywhere in the county – except the State won’t allow them to do that.

    I note in many places in the South – if you travel through that place and you run afoul of local law and regs – bad stuff can and does happen. Ask the family of Sara Bland in Texas.

    I know there is some level of separation of laws and powers from the Federal to the State to the Locality and a lot of variations of it but I’m no fan of laws and policies that allow Boss Hogg type localities.

  2. Coincidentally, a retired circuit court judge was speaker at my Rotary Club meeting yesterday. During the Q&A, I put the question to him about Clerks of the Court and whether they ought to be elected. While he dodged the question (appropriately, I suppose), he did volunteer that Clerks were, at one time, appointed by the judges. He felt that process was also tainted by courthouse and local politics.

    Heck, anything related to government will be tainted by politics. In my opinion, appointment by the judges, who might actually have some firsthand knowledge of the work, is far better than election by citizens who haven’t the faintest notion of what a Clerk of the Court does nor whether the work is up to snuff.

  3. Here’s what I see – the policies and procedures of these positions is set by the state so we have standards and consistency – AND the positions are NOT “appointed” by political types but instead elected.

    On a short-look – one wonders why these “administrative” positions are elected.

    I argue that I prefer to have the elected rather than appointed by local politicians or these days with heavy influence from the political parties AND in addition to that protection – the policies and procedures themselves cannot be as easily corrupted by locals who would do so.

    I DON’T want a Sheriff whose policies are actually changed according to the politics of some individuals at the local level.

    We need:

    1. – standards – where the law and regulations work the same way across the State.

    2. – the people responsible for carrying out the law and the regulations should be elected in open elections and not appointed by unelected folks working behind the scenes to achieve their own political goals.

  4. I do not believe Circuit Court Clerks have been appointed by any one other than voters for the last 150 years
    In fact it is interesting that so many of these “solutions” seem to be a throwback to the time before the 1851 Constitution, a time when an all powerful “county court” set taxes, passed local ordinances and decided who all the local officials would be e.g. sheriffs, clerks, coroners, etc.
    Again this all seems to be a solution in search of a problem, unless of course you believe in Virginia the problem is a surplus of democracy.

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