Insight into Civilian Review Boards in Virginia
Providing an analysis of civilian review boards in Virginia, specifically addressing the absence of express authority, potential workarounds, relevant statutes, and the Dillon Rule. Despite limitations, creative interpretations and legislative fixes may offer solutions to best serve the interests of Arlington.
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AUTHORITY FOR CIVILIAN REVIEW BOARDS IN VIRGINIA SEPTEMBER 10, 2020 STEPHEN A. MACISAAC, COUNTY ATTORNEY
AVOID CLOUDING ISSUE WITH CONCERNS ABOUT LIMITATIONS Provide insight into various types of civilian review boards Don t constrain analysis and thought process with considerations of what may or may not be permissible in Virginia Focus on how best to serve interests of Arlington
VIRGINIA IS A DILLON RULE STATE DILLON RULE: Local governments have only those powers expressly granted by the state, those powers fairly or necessarily implied from express powers, and those powers which are essential and indispensable. Examples of limitations health care for same sex couples, human rights for various gender based categories, hiring a County Board auditor Creative interpretations may be necessary Work arounds are often available say what you want to do and then figure out how to do it Legislative fix may be needed if cannot find a way forward
ABSENCE OF EXPRESS AUTHORITY IN VIRGINIA Currently, no express authority for a civilian review board and doubtful that is an implied power or one that is essential Analysis does not end here Work around may be available, particularly depending on the powers to be assigned to the review board
STATUTES RELEVANT TO POTENTIAL WORK AROUND Neither the board nor any of its members shall in any manner dictate the appointment or removal of any county administrative officers or employees who are appointed by the manager or any of his subordinates. However, the board may express its views and fully and freely discuss with the manager anything pertaining to appointment and removal of such officers and employees. Except for the purposes of inquiry and investigation, the board and its members shall deal with county officers and employees who are subject to the direction and supervision of the manager solely through the county manager, and neither the board nor any member thereof shall give orders either publicly or privately to any such county officer or employee. 15.2-703 Va. Code Ann. The board may inquire into the official conduct of any office, officer or employee under its control. . . For these purposes it may subpoena county employees as witnesses, administer oaths and require the production of books, papers and other evidence in their control. If any such witness fails or refuses to obey any such lawful board order, he shall be deemed guilty of a misdemeanor. 15.2-709 Va. Code Ann.
STATUTES CONTINUED Grievance Process. Notwithstanding any other provision of law to the contrary, general or special, every locality which has more than fifteen employees shall have a grievance procedure for its employees that affords an immediate and fair method for the resolution of disputes which may arise between the public employer and its employees. . . 15.2-1506 Va. Code Ann. Law Enforcement Officers Procedural Guarantee Act. 9.1-500 et seq. Va. Code Ann.
PENDING LEGISLATION IN SPECIAL SESSION HB 5055/SB 5035 law enforcement civilian oversight body Bills are largely the same one requires it and the other permits it but both leave it to the local governing body to establish the duties, policies and procedures of the oversight body
SUGGESTION ON HOW TO MOVE FORWARD Sub Committee and PPG should proceed with its processes without regard to whether enabling authority exists County Board will determine whether and what kind of civilian review board should be established for the County Existing legislative authority will be used including any necessary work arounds If legislation is needed, it will be sought
