Tag Archives: James Sherlock

A Constitutional Approach to Avoiding Evictions in Virginia

by James C. Sherlock

There has been extensive discussion here about minimizing residential evictions in Virginia in the time of COVID. I will offer a constitutional approach to achieving that objective.

A Broad Consensus

The Governor and General Assembly want to avoid evictions of residential tenants who are unable to pay rent due to COVID-related issues beyond tenant control. So does every landlord in Virginia. And indeed I think every citizen. We have broad consensus on that point.

The Democratic Governor and Democratic majorities in both houses of the General Assembly can do whatever they wish with legislation. In this case they may wish to create a temporary, COVID-related rent payment program.

But they will have to pay for it, as opposed to asking landlords to eat the costs.  That seems to me a valid and effective use for federal COVID money.

And the executive branch will have to administer it, not the courts and not the landlords.

Continue reading

Fool Me Once

By James C. Sherlock

I want every tenant who cannot pay his rent because of COVID to be able to stay in his home. I want every landlord who supports them to be paid for their forbearance so they can pay their own bills.

This post starts with both of those goals in mind.

It is about a Governor and a Virginia Supreme Court who created horrible judicial precedents that never needed to happen.

Jim Bacon’s column this morning well summarized the issues with the Virginia Supreme Court’s August 7 order: IN RE: AMENDMENT OF EIGHTH ORDER EXTENDING DECLARATION OF JUDICIAL EMERGENCY IN RESPONSE TO COVID-19 EMERGENCY.

That order reimposed until September 7 a previous Supreme Court denial of residential landlords’ access to the courts to gain adjudication of unlawful detainer actions by tenants accused of failure to pay rent and it banned eviction orders on that same basis.

The Governor and the General Assembly

Governor Northam has been hesitant to call the General Assembly into session because he cannot ultimately control what legislators do when they meet. Republicans and some Democrats appear poised to try to limit, especially in duration, some his virtually unlimited emergency authorities under Virginia law. When written, the drafters of that law simply did not imagine an emergency that would last for more than a month or two.

Continue reading

So It’s Not “About the Children” After All

by James C. Sherlock

The Chesterfield Education Association (CEA), a local unit affiliated with the National Education Association, is pushing back hard against a plan to have school employees report to their schools in order to use school facilities and support systems to professionalize remote instruction to their students. (According to the CEA president, the organization currently represents between 28% and 30% of the school system’s teachers, counselors and principals.)

The school district wants to ensure that the failed experiment with remote instruction in the spring is not replicated this fall. In-school platforms for remote instruction guarantee supervision and technical support.

From the Chesterfield Observer August 6, 2020:

“(Chesterfield School Superintendent) Daugherty assured the Board of Supervisors last month that all Chesterfield teachers would be required to work from their school buildings when they return from summer break – unlike last spring, when many teachers struggled to facilitate delivery of a hastily crafted virtual curriculum while working remotely following Gov. Ralph Northam’s executive order closing all Virginia schools.

Since then, however, the School Board has received pushback from employees who don’t think they should have to work in school buildings if students aren’t present.

Last Friday, the Chesterfield Education Association recommended that all CCPS employees with documented health risks, those who have to provide supervision of their own children, and those who simply prefer to work remotely be given the option to do so.

Continue reading

Cancel One More Good Man

by James C. Sherlock. Updated Aug 3, 9:50 AM

Just another day in the neighborhood here in Virginia Beach.

The Virginian-Pilot, which used to be based in Norfolk, is a shadow of its former self.  It has combined with the peninsula-based Daily Press.

The paper announced on May 4, 2020:

The Virginian-Pilot has officially moved out of the downtown Norfolk building that it had occupied for more than 80 years.

The newspaper reported Sunday that its owners turned the keys over to a developer who plans to turn the building into apartments.

The Pilot will move to offices in Newport News that are already being used by its sister paper, the Daily Press.

Mostly these days it consists of a very thin mess of Associated Press articles, rehashes of local press releases, old sports stories, a crossword puzzle, paid obituary postings and short opinion pieces and letters.

But the Virginian-Pilot crossed the water on Sunday to headline on the front page two articles “Discussions about RACISM.”  The paper’s capitalization, not mine.  The word racism, and that word alone, was in an enormous font. Continue reading

Welcome to Illinois

by James C. Sherlock

The illegal but successful threats not to return to work by teachers associations in Fairfax County Virginia have forced Virginians to confront the issue of public employees’ willful refusals to perform the duties of their employment.

From the Washington Post, “Teachers in Fairfax revolt against fall plans, refusing to teach in-person,” June 26, 2020:

A day after one of the nation’s largest school systems announced its proposal for fall learning, teachers within Fairfax County Public Schools rose in revolt and refused to teach in-person, as the (previously announced by the school board) plan demands, until officials revise their strategy.

Though you would not know it from their actions, Fairfax County school teachers currently are not permitted to bargain collectively. Even when the laws change next year to permit bargaining at local option, such tactics will be illegal.

Code of Virginia, § 40.1-55, both now and in 2021, is titled “Employee striking terminates, and becomes temporarily ineligible for, public employment’.”   Continue reading

Civil War within the Northam Administration on School Reopening Guidelines?

by James Sherlock

Steve Haner wrote a very important essay today about the new workplace guidelines about to be published by the Virginia Department of Labor and Industry(DOLI).

In a similar vein, the progressive warriors in the lower levels of the Northam administration are trying to offer stricter school reopening guidelines than the Governor. States this Department of Labor and Industry (DOLI) document:

Public school divisions and private schools that submit their plans to the Virginia Department of Education to move to Phase II and Phase III that are aligned with CDC guidance (6 feet social distancing) for reopening of schools that provide equivalent or greater levels of employee protection than a provision of this standard and who operate in compliance with the public school division’s or private school’s submitted plans shall be considered in compliance with this standard.

An institution’s actual compliance with recommendations contained in CDC guidelines or the Virginia Department of Education guidance (now includes 3 ft. option), whether mandatory or non-mandatory, to mitigate SARS-CoV-2 and COVID-19 related hazards or job tasks addressed by this standard shall be considered evidence of good faith in any enforcement proceeding related to this standard.

They directly contradict school reopening guidelines updated July 1 by the Department of Education and published by the Governor on July 6.
Continue reading

State Board of Health Regulations are Fundamentally Flawed

by James C. Sherlock

The Northam administration has a robust program for regulation review. It is time to use it to totally overhaul Virginia’s healthcare regulations.

Healthcare facilities and providers in Virginia are subject to dueling regulations — one set for state licensure and another for Medicare/Medicaid certification.

Virginia’s regulations in these cases are not just a waste of time on the government side. The administrative burden on healthcare providers is heavy and entirely unnecessar,y and the regulations violate both Virginia law and the Governor’s executive order on regulations.

It is expensive, counterproductive and in some cases illegal under Virginia law for Virginia to have different regulations for the same facilities and providers, yet we do.

Code of Virginia § 32.1-127.

Virginia regulations must be changed to conform to federal Medicare and Medicaid regulations for long-term-care facilities to comply with the clear direction of Code of Virginia § 32.1-127. That law requires that Virginia regulations for hospitals and nursing homes “conform” to “health and safety standards established under provisions of Title XVIII (Medicare) and Title XIX (Medicaid) of the Social Security Act.” Continue reading

(Almost) Free Money

By James C. Sherlock

Steve Haner’s superb column on the state budget turned attention to federal aid to state and local governments. It is worthwhile to review where the feds get that money.

James T. Agresti, CEO of Just Facts (chart above), has written recently hat U.S. debt-to-GDP ratio is four times the historical average and climbing:

“The US national debt has just reached 120.5 percent of the nation’s annual economic output, breaking a record set in 1946 for the highest debt level in the history of the United States. The previous extreme of 118.4 percent stemmed from World War II, the deadliest and most widespread conflict in world history.”

The Federal Reserve

The Fed’s dual mandate from Congress is to maximize employment and stabilize prices. The Fed floods the economy with money in times like this and is supposed to sop it up with higher rates when the economy appears to overheat and prices rise too fast. Continue reading

K-12 Schools Need Immunity for COVID-19

by James C. Sherlock

In May we saw several states pass laws that gave businesses immunity from COVID-19 claims.

We need similar but expanded protection for public and private schools, their school boards, superintendents and all of their employees.

In North Carolina, for example, immunity protection granted businesses was sweeping. That immunity does not bar regulatory actions, criminal charges, workers’ compensation claims, gross negligence, recklessness or intentional infliction of harm. It continues until emergency orders expire or are rescinded.

But the schools are in worse position than businesses.

Suits against schools for educational malpractice have been thrown out by courts for decades. However, COVID-19 offers opportunities to sue schools

  • for gross negligence or reckless endangerment if the schools are open; or
  • for violation of various constitutional guarantees if the schools are closed and provide remote learning only.

Quite literally, damned if they do and damned if they don’t.

Continue reading

Roanoke County and Education in the Age of COVID

by James C. Sherlock

I subscribe to the Roanoke Times because I find it by far the best regional newspaper in Virginia. It produces local reporting that the rest of us can only envy.

I was drawn to two stories in the past week.

The first, on June 21 by Alison Graham, revealed only 2/3 of residents of Roanoke County have broadband access.

Roanoke County’s Tentative Plan

The second, by Claire Mitzel today revealed the school system’s tentative plan:

“Southwest Virginia’s second-largest school system on Thursday unveiled its plan to return to school in August, which will involve daily in-person instruction for pre-K through second grade students and twice-a-week in-person instruction for third through 12th graders. Roanoke County’s plan is based on the state being in Phase 3.”

The plan is preliminary, but the article reported that the School Board seemed to support its broad outline and will vote on a final plan July 2.

“Third through 12th grade students will be split into two groups under the plan to attend at 50% capacity. One group will attend school on Mondays and Thursdays; the other group will attend Tuesdays and Fridays. Families with multiple children will attend on the same schedule.”

Continue reading

Open the Schools

By James C. Sherlock

I have written here multiple times about the terrible and disproportionate effects that school shutdowns are having on poor children in Virginia.

The public school is an enterprise that has no admission standards. We do it that way on purpose, to try to give every American child as much opportunity to learn and develop into a successful citizen as we can. Public schools represent a core value of the American way of life and provide foundational support to our republic.

Virginia Guidelines vs. CDC Guidelines

On June 9, 2020 Governor Ralph Northam announced guidance for a phased approach that allows Virginia schools to slowly resume in-person classes for the coming academic year. There were two sources for the Governor’s guidance, the Virginia Department of Health (VDH) and the Virginia Department of Education (VDOE). Both dropped the ball.

VDH summarized and truncated the published CDC school considerations to slow the spread of COVID-19 to the point that they are at best unhelpful. It is difficult to imagine why they did not just publish the CDC guidelines, but they did not.

That flawed guidance was absorbed into the VDOE reopening guidelines.

One of the core recommendations that originated in VDOE — remote learning for large classes of K-12 students— has been shown in every study to have been ineffective in April and May. An alternative schedule will prove in practice unexecutable. Continue reading

Incompetent, Dangerously Incompetent, and the Virginia Department of Health

Clark Mercer

By James C. Sherlock

It is very hard to recommend a career in politics these days. Elected officials are at the mercy of the competence of bureaucracies they did not create and over which, under civil service protections, they have little control.

Yet never have we needed dedicated, smart and effective political leaders more than today.

Clark Mercer, Governor Northam’s Chief of Staff, and I don’t vote the same way, but that doesn’t color my view of him. He is very smart and, if you see him on the Governor’s press conferences, he is a breath of fresh air, regularly elevating the discourse like no other person on the stage. He has a bright future.

I have been documenting the failures of the Virginia Department of Health (VDH) in these pages and on the editorial pages of Virginia newspapers for more than a decade. I offer the title of this essay as a useful way to describe the hierarchy of incompetence in Virginia.

Well, VDH just reached up and bit Mr. Mercer.
Continue reading

Virginia’s Recover, Redesign and Restart 2020 Manifesto – Legal Status

by James C. Sherlock

Recover, Redesign and Restart 2020, discussed yesterday here, was presented as a set of “guidelines,” but the Governor’s manual for re-starting public schools this fall amidst the COVID-19 epidemic included a mandatory reporting provision clearly designed to intimidate schools and school boards.

Let’s look at the legal status and implications of those guidelines.

Following the Governor’s unbroken pattern, the General Assembly was not called into session on this crucial matter, but rather a massive panel of “stakeholders” was convened with more than twice as many members as the elected General Assembly.

The members of the panel apparently considered its constitutional and legal questionability, preposterous length, pedantic unreadability, bureaucratic checklists, designated spaces for self-criticism in the Maoist tradition and internal contradictions to be features not bugs. The rest of us not so much.
Continue reading

Virginia Department of Education’s Manifesto on School Reopenings

By James C. Sherlock

I have only a brief experience as a middle school teacher in Fairfax County back in 1966/67 and several years as a volunteer remedial math instructor in middle school in Virginia Beach in this decade. I am not a graduate of a school of education.

So I have just read with interest,” Recover, Redesign, Restart 2020,” by the Virginia Department of Education.

The forward says in part:

“Through this document, we strive to offer guidance, technical support, best practices and alternate solutions as divisions prepare to continue providing instruction to all 1.3 million Virginia students under uncertain and evolving circumstances.”

Fair enough.

Unfortunately, the document reads like a thesis. It is 136 pages long and credits for the product 228 participants, a great many of which are PhDs, in a long list of task forces and advisory panels.

I urge you each to open and at least scan it online.

It is full of such impressively pedantic guidance as: Continue reading

An Enormous Bill is Coming Due in Virginia

by James C. Sherlock

We had a long discussion in this space earlier about whether the Virginia Supreme Court Order of March 16, 2020, that suspended writs of eviction and residential unlawful detainers was constitutional.

The June 8 extension of the original order was especially troubling because by that order the courts were open for business to all plaintiffs except residential landlords.

Regardless of individual views of constitutionality, that order constituted unmistakably a taking of private property.

For purposes of this discussion assume:

  1. the taking of the property of the landlords in order to stem the effects of COVID was for public purposes and thus constituted a taking for public use; and
  2. the method of the taking was not impeded by any barrier of constitution or law.

Under Article I Bill of Rights, Section 11 of the Constitution of Virginia Due process of law; obligation of contracts; taking or damaging of private property; reads in part: Continue reading