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Board Ignores Dillon Rule and AG's Opinions

January 25, 2010

This is the unofficial transcript of the January 5th Board of Supervisors meeting in which the Board ignores the Dillon Rule restricting the powers of a local county government to what the state legislature grants them the authority or power to do.

2:25 January 5, 2010 (Board of Supervisors Loudoun County, Virginia)

Item #9 Mr. Miller: Thank you. I'm going to make a motion that we amend the county equal employment opportunity policy to add that we will neither discriminate on the basis of sexual orientation or gender identity, and I also move that the board direct staff to revise other areas of human resources policy handbook to comply with this updated non-discrimination policy.

Chairman: Motion has been made, seconded by Ms McGinsey; Make sure we are working off the green sheet.

Mr. Miller: The only difference between the green sheet and the original item is that I added gender identity. As my opening comment, let me say that I thank Miss Waters for handing out this item sheet alerting us to the fact that the state of Virginia had such a policy under two prior Governors, our current out-going Governor and Governor Warner, actually styled Executive Order #1, which tells you something about the importance that those two individuals assigned to this issue. Prior to winning election, our new Governor had announced that he would not reenact Executive Order #1. Arguably, he believes that its not within his constitutional authority, but he is an executive officer, and we are a combined executive and legislative body. Similarly the restrictions that would prohibit a school board, which is not a legislative body from enacting this, do not apply to us so the Attorney General's opinions that are handed out are easily extinguished.

Further, it's the right thing to do. The Virginia Code authorizes a County Board, like us, to to create a human rights commission and one of the authorities of those commissions is the promotion of policies to protect everyone against discrimination. It is impossible to believe that we would have the authority to create such a commission, which would be passed to promote those policies but we would lack the ability to come up with those policies ourselves. Further this is a policy statement, not an ordnance, so the restrictions on legislative authority don't even apply. It's a shame that anybody would put energy into resisting this. It's shameful that anybody would do that. It's the right thing to do. It's mandated by conscience and constitution, both. I hope this isn't going to take a lot of time.

Chairman: Further discussion on the motion, Mr. Delgaudio, and then Ms Waters.

Mr. Delgaudio:This is an extremely controversial topic and contrary to what the maker of the motion, Supervisor Stevens Miller, took, (It's a hurry up thing for him; hurry up and do this.) It's like "OH my goodness, we have to hurry up, you know!" And I have a long list of objections to the things he is in a hurry to do. But you know liberals like to take a rest, too, so President Obama didn't respond to the attack on Christmas Day, but yet we've got a liberal here who's got to hurry up, not noticing that we had a Holiday, and you burst in here with this option of passing it immediately and you say it's shameful if we just simply want to read it. And read it into the record. What is gender identity? What the heck is gender identity? So I'll close my question with this friendly request, or friendly amendment, so if you want to say its shameful, Let's allow, the public, talk about shameful, As a friendly amendment, Mr. Chairman, I move that the Board direct staff to prepare an item for a public hearing for this. And that way we will take into account the public, which, by the way, we're working, like I said in my Board comments, working pretty hard the past couple of weeks, during the holidays, every one of us gave a pretty serious accounting of themselves during the Christmas season, including Supervisor Miller, I might add, even though he did object to us talking about the nativity for fear of the Ku Klux Klan, and who else? I remember the spaghetti monster, that you referred to, talk about shame, but, Mr. Miller, I am making a friendly amendment to avoid what I consider to be shameful, to exclude the public.

Chairman: Mr. Delgaudio has made a motion to send this item to a public hearing, is there a second? Second by Ms Waters, is there discussion on this motion? Mr. Roberts, I'm going to ask you a question and I'm only asking the question based on legality and not any other. Currently, the current policy is that we cannot prohibit based on race, color, sex, religion, national origin, or political affiliation and age disability. That is currently what is written in policy. we have gone through hiring the County Administrator. We have a director of a department to take care of assuming either situation that the Board of Supervisors had through its interview process and/or if the time comes, Mr. Henstreet has to hire a director for the department of economic development or if an individual were to be fired based on sexual orientation or gender identity under current policy without those words in there, could the county could do that?

Mr. Roberts: The County's practices as I understand it, is not to take that factor under consideration in hiring or firing procedures.

Chairman: Even though it's not written in policy?

Mr. Roberts: That's my understanding, yes.

An Chairman:Thank you. Discussion on the amendment.

Parliamentary inquiry: I think the substance of this amendment would essentially render the main motion moot, because it would alter what we are debating from the amendment to the policy to the referral to the question to a public hearing. It doesn't change the nature of the debate but I think it would be appropriate to regard Mr. Delgaudio's request as a substitute motion

Chairman: Thank you for the clarification. On the substitute motion, is there any discussion? Mr. Delgaudio, I'm sorry, I've got to see hands up. Ms Waters.

Ms Waters: I think that this issue needs additional review and exploration. It was not reviewed by staff. We don't know what legal consequences of this are, or if there are any in terms of our current practices. We also received this revision, to add the words gender identity, which does not appear in Governor Kaine's Executive Order. I don't think we know what that definition is, or what the consequences of that would be, but more importantly, I think there are three critical pieces of information missing from the item. One, as my collegue Mr. Miller referenced, is that Governor McDonnell does not intend to continue this policy or Executive Order; this was back in October he was quoted in an article stating that there will not be discrimination in the Office of the Governor but basically he used this as a separation of powers issue and will not be continuing this Executive Order therefore the argument in Mr. Miller's item is to bring in alignment to state policy

is about change. The second important point, as Attorney General, Bob McDonnell wrote an opinion in response to Delegate Marshall, that the executive order was actually unconstitutional because of separation of powers issues. Thirdly, going back even further, AG Kilgore responded directly to a request by the Fairfax County School Board to see if they could add sexual orientation to their non-discrimination policy and in your packet that I gave you is his opinion which says that Fairfax County School Board has no authority to add sexual orientation as a category in its non-discrimination policy absent enabling legislation. Fairfax County has submitted requests for the last six years to get that enabling authority and they have not been granted that by the General Assembly, therefore, I do not believe this is a legal motion to even put a policy in place. That's why I believe it needs additional vetting and review, if anything, if this were to go forward, it has to go the AG to find out if we have the authority to do this. But based on this information, we are no different than Fairfax, therefore, there is a Dillon rule issue, and we have no legal authority to do this.

Chairman: Ms McGinsey

Ms McGinsey: I'd like Mr. Roberts to weigh in.

Mr. Roberts: I have read the two AG opinions and the 2002 opinion does seems to be on point, the one dealing with the Fairfax County School Board. The other opinion deals with, I believe, Constitution questions between the Governor and the Legislature as opined upon by the Attorney General. I'm not sure if we are going to resolve that question through this action one way or another. There is yet another opinion dealing with what I believe (I have not read the opinion) is that the Fairfax County human rights ordinance, which is an ordinance that deals with external issues, discrimination, housing, credit, real estate, that kind of thing and indeed Fairfax County has been trying on repeated occasions for a number of years to get that enabling authority amended, adding sexual orientation, and unsuccessfully. That's really a separate issue, on its face seems to be an opinion that is on point and that does have weight, the AG's opinion does have weight. I have been informed that other communities, Arlington, Virginia Beach, and Alexandria, all have sexual orientation in their EEOC policies, so, there obviously are differences of opinion and perhaps some subtleties I'm not aware of at this point.

Chairman: Further discussion. Mr. Burton.

Mr. Burton: I would add that the Attorney General's opinion is just that, an opinion.

Ms. Buckley: Question for Mr. Roberts. Do we have the legal authority to take this action?

Mr. Roberts: I have not formed an independent opinion. We obviously have the AG's opinion which I do believe is on point and it does carry weight, but as we have seen even here locally with the issue about pit bulls, that the local court did not agree with so until the court rules, the Attorney General's opinion is not binding authority, but it has a great deal of weight, there is no question. It is an official opinion, it is published, it can be cited in a court of law. I have not formed an independent opinion on the issue.

Chairman: Mr. Miller:

Stevens Miller: I think the AG's opinion is easily (sic) distinguished. It clearly states by referencing one of your authorities, the School Board is a public, quasi-corporation I don't think that phrase is applicable to a Board of Supervisors, we have legislative authority school boards do not have. Further, we know that other institutions and municipalities have passed these provisions in their policies, as the two Governors before us have done so. The Commonwealth has not come to an end as a result. For those of you who need to know, the term gender identity I've borrowed from HR 3017 the Employment Non-discrimination Act of 2009. It defines it as: The term gender identity, appearance or mannerisms or other gender related characteristics of an individual or without regard to the individual's designated sex at birth.

Ms. McGinsey: It seems to me but we are arguing legalisms about allowing us to discriminate about people who would work for Loudoun County Government. And I just want to make sure that we're crystal clear, about we can be talking about opinions and going to court and all that but we are arguing that we want to perhaps be discriminating against people. Remarkable

Mr. Chairman: Any other discussion on the on the Substitute Motion where we are deciding to a public hearing. Mr. Delgaudio, last words?

Mr. Delgaudio: Thank you. Cross dressing rights, that's what we're talking about here at the Board of Supervisors. We started out in January, and I warned you about socialism, and fantasies and here we are. Our country has been destroyed. We have a President who takes a vacation in HA while terrorists are trying to blow our planes out of the air. What a contrast. Mr. Miller, you have a hurry up agenda. You've got your own little thing going on there, I appreciate the fact that you have the right to run for higher office, have that right any day of the week, but you do have a current job. Its called Board of Supervisor. Mr. Miller warned us about the dangers of the spaghetti monster with the nativity scene, and here we are just a couple of weeks later, after hundreds of Christians came here, and we can't involve those Christians again. Here's another sneak attack, Loudoun County. Here's another surprise. There are people on this board that know darn well what's coming down the pike, because they have an agenda. They certainly, at least one Supervisor knew that these people were going to take away our nativity, and now we are going to impose cross dressing and individual mannerisms on proposed federal legislation. Now, we're going to take some special rights and award it to people, and that's what we're talking about, Supervisor McGinsey, special powers. This is a full scale, homosexual, trans-gender cross-dressing employment act, that's what it is. Today, he's smacking me around in public safety, because I invited the FBI and every alphabet Federal agency in here. So I kicked them back, I tell them, so that is about you're welcome to have sandwiches at Santini's. That's pretty much what you are doing to the Christians and the moral thinking people. You kick them in the teeth by surprise. You throw this out: "it's shameful!" I'm sitting here, going, why not just put in on the agenda, let the moral people, the people who don't agree with you, Mr. Miller, have that opportunity, that full disclosure, that full transparency that you don't want to have and you're angry. You're angry that the Christians turned out, without notice in 48 hours. They came here en masse, and said, "Restore our nativity!" But now you're saying "Let's put cross-dressing people, put men who wear dresses in all the ladies rooms in Loudoun County without notice." And you're upset! You're mad at me because I simply want to address those issues and let the public come in. You know, you also want to seek to limit Walmart and you also don't care about illegal aliens. There's a laundry list of stuff. Did you know there is an ad hoc work, by the rental stores and truck lines, a safe haven well inside Loudoun County, right by your home, by 606, a safe haven for illegal aliens waiting for day labor. Anyway there's a list of things, Mr. Chairman. This is freaky, this is bizarre, and this is fruity.

Mr. Chairman: All in favor of the Substitute Motion, signify by saying aye. The Substitute motion failed, Chairman York, abstaining, Mr. Delgaudio and Ms Waters voting in favor. We are back to the main motion. Ms Waters.

Ms Waters: I have a Substitute motion. I'd like to request that we send a letter to the Attorney General, asking him whether or not Loudoun County has the legal authority to make this change, to add sexual orientation and gender identity to the equal opportunity statement.

Chairman: The Substitute Motion has been made. Second? Seconded by Mr. Delgaudio. Discussion, sorry, Opening Comments

Ms.Waters: We're often told that we are allowed to do something or not allowed to do something because of the Dillon Rule. Going against the advice, of attorneys or not even having the full advice of our own attorney as to what the consequences are or whether or not we are on firm legal footing, puts us at risk for lawsuits. This question has been waged in other counties and jurisdictions across the nation. You are inviting lawsuits unless we have firm legal footing. This is the vote on my Substitute: To ask the Attorney General whether or not we have the legal authority to do it which would also provide the time for Mr.Roberts to research the legal issues, and would provide the time that we need to get the answers and know what legal authority we have or don't have. I think it is wise to hold off on the vote today, on the final issue until we have a clear recognition and legal advice from our own attorney, as well as from the Attorney General. And while these are opinions, I think that we all know that they do carry weight. In particular this one regarding the Fairfax County School Board: it says in the 2002 item that Fairfax County has no authority to prohibit discrimination based on sexual orientation and further on it says the Fairfax County School Board is subject to the Dillon Rule just as Fairfax County. This is not a question of substance at this point, it is a question of whether or not we have the legal authority to take this action. Let's ask the attorneys to bring us their best advice before we put ourselves in legal jeopardy and risk.

Chairman: Discussion, Ms McGinsey

Ms. McGinsey: What I always find ironic about this particular issue, is that a party that wants to have big government to go away wants to get so much into private issues that should not be an issue, when hiring or judging somebody's work in the workplace and firing issues. Shouldn't be an issue, so what it really should read is do we have a right to discriminate against people because of their sexual orientation? Because that's what we're really asking.

Chairman: Mr. Delgaudio

Mr. Delgaudio: Again, Supervisors. We have strong feelings about this. There's a difference between having a difference of opinion, as opposed to setting an agenda. And us helping each other out by helping them. This is clearly agenda driven. Clearly. To look up on the internet the definition of gender identity, for the purposes of this debate! You're flying in the face of the law. Attorney General Kilgore was part of the coalition for slow growth, one of his major jobs for a decade, working with members of this group in the Board of Supervisors, ten years ago. It's not like Mr. Kilgore is some personae non grata in this room. Kilgore says: illegal. No authority. Very explicit in his opinion. It's not like we rushed the judgment and called up Jerry Kilgore, the ex Attorney General in the middle of the night . This is available, this is on line, ten pages of legal opinion, contrary to an amended version of the unknown green item. Boy is it green and ugly, because this is not how you make legal legislation. You want to operate outside the law. Then you're operating outside the law and to the point that, Supervisor McGinsey, there is a whole sea of people who showed up on Christmas Eve to tell us to please promote morality and please promote religious freedom. Yet you, Supervisor McGinsey, and it seems the majority on this Board, the cross-gender board, the Obama board, you want to stick it to the same people who came here asking for religious freedom. You want to impose your agenda on Loudoun County without so much as a public hearing or a legal opinion from people who agree with you on 90%. No This Board wants, a hundred percent compliance, so, when we don't know about stuff, that's when you to stick it to them. We're busy celebrating New Year's Eve, and by the way we're in here New Year's Eve, meeting on NewYear's Eve! It's not like the Board is not meeting, but no, the public, we don't want to include them on this.

Chairman: Ms Buckley.

Ms Buckley: I'm not going to support the Substitute motion in requesting an opinion from the Attorney General's office, because I don't think it will move us any closer to a decision. We would have an opinion from an Attorney General that would carry weight, but would not be definitive on this issue. We won't have a definitive answer until a court rules on it. So I don't think doing that would move us any closer to determining the legal authority issues.

Chairman: Further discussion, Mr Miller.

Mr. Miller: AG Cuccinelli's opinion is predictable, and wouldn't change my eagerness to submit this question again, and if we get sued, then we'll have to defend our policy. I hope we will. Maybe we won't. I'm not aware of anybody else having a suit over this. In the meantime, if we want to go ahead and pass this and request Mr. Cuccinelli's opinion, we would have the option to do that too, so I don't see why we should wait to do the right thing.

Chairman:Further discussion. Ms. Waters.

Ms. Waters: So we don't want legal opinions, and we don't want public hearing input. There are many weighty issues that we are confronting. We just heard, during our legislative items, the budget that is about to confront us, but instead of focusing on those issues that carry significant weight… We have got very difficult decisions to make. Instead of focusing on those things, here we are, spending how long on a highly partisan, political issue? And that's what this is. And it's been brought forward in that way, otherwise it would have gone through peer review. It would have gone through legal review. If this were a legitimate question, being asked or being presented, we would be getting the correct legal advice, at least asking the question. Please let us get legal advice. In regard to private issues, as Ms. McGinsey stated, I'm a little confused, because I frankly don't want to know who people are going home to at night and I don't know the legal ramifications now, and what this would do. If the policy changes, are we going to have to start asking who everyone, every employee is going home to at night? I don't want to know. I don't want to ask that question. These are questions that we need to understand about how they would be enforced. The definition of gender identity is not in this item. How do we even know what that means? How we would enforce it. We don't. Would it mean men who dress as women go into ladies restrooms? I don't know. It could, but I don't know. We don't have any description of this especially since this green sheet (revised) handed to us last night adding the words gender identity with no definition. Let's be clear. If we want to do this right, we'll ask for the Attorney General's opinion, we'll ask for our own attorney to give us his opinion and be on firm legal standing. If we are going forward today without this, its about politics, that's all it is.

Chairman: All in favor of the substitute motion signify by saying aye. Chairman will abstain, the Motion will fail, two in favor, Mr. Delgaudio, and Ms. Waters. We are back to the main motion. Ms McGinsey

Ms. McGinsey: I want to quote from the Bible, Judge not, lest ye be judged. By a positive vote, we are sending a message today that discrimination will not be tolerated in the work place in Loudoun County Government. I am proud to support this amendment, and I am grateful to Mr. Miller for giving us the opportunity today to correct this oversight in our policy.

Chairman: Further discussion on the motion? Ms Buckley

Ms Buckley: There's been a lot of comments from the guys on this and if some are going to call this partisan, on one side, the comments you are hearing from the other side clearly are partisan as well, let's be frank. You're getting it from both sides. I don't think this is about cross-dressing rights, Mr. Delgaudio. I don't think its about a lot of the things and the comments that you made. I think this is simply about whether or not you discriminate in the hiring and firing of Loudoun County employees. My concern is that the item in the comments made today could incorrectly leave the impression to the public that Loudoun County is currently discriminating. We are not, as heard by Mr. Roberts today. So what this item does is codify existing practice. Codify what we actually don't do. We don't discriminate. That's what this is about. We've already made the decision. We don't discriminate. Now, we're just going to put words to it.

Chairman: Further discussion on the motion, Mr. Delgaudio.

Mr. Delgaudio: And so to embrace morality without restriction, is now to be condemned. To say to an individual, 'What's your sex?" when it's obvious. To say to somebody, "What's your race?" when it's obvious. These are illegal acts, which everybody can agree on. And the attorneys can say obvious discrimination is wrong. We are all in agreement with this, and we are in compliance with the Civil Rights Act as amended to include people of religion and so on. If it's obvious. But this is not obvious, because Mr. Miller himself on the record, pulled out a definition from the internet, as to what gender identity is. The word that is sticking out to me is "mannerisms." I have a New York manner, ok? Is that in gender? Is that there, too? I have a New York accent. Is it obvious that I'm originally from New York, or is it just Northern Virginia? What is gender identity? It has not been litigated, it has not been defined in this description, here and when you get into human rights description, that's hard left, ladies and gentlemen, that's hard left. Nobody asks, nobody checks on me except Scott York, how many kids I've got, and what house I live in, over the last ten years, the rest of you don't visit me! I mean now, this whole topic, of moral behavior, who you go home with at night has been foisted upon Loudoun County by an idealogically left Board. That's all I said. I've restricted my comments in the past, but the pattern seems to be not a mistake any more, you go along with this, because, well, you want to. Don't care about Kilgore's opinion, don't care about Cuccinelli's opinion, my goodness. Lawlessness embraced officially by the maker of this motion. He doesn't even care what 3 AG's think. He can predict their opinion. Oh, maybe you can predict the Supreme Court of Virginia, too, and maybe you can predict where this is headed: trouble for Loudoun County. There's not discrimination against anybody, unless you call getting elected and re-elected discrimination by the voters. They decide who they want to represent them. And frankly, embracing lawlessness, at this is unheard of, the Loudoun Board of Supervisors is not the US Congress, it is not the Supreme Court of the land, it isn't even the Virginia Legislature,

But you're certainly acting like it today.

Chairman: Further discussion. Ms Waters

Ms Waters: Where are the complaints? Is our in-box full? I'm looking at HR and they're shaking their heads no, there have been no complaints. That's because our existing policy is there is no discrimination. Loudoun County uses merit, ability, experience, these are the things that drive our hiring decisions. These are the things that drive, I think for all of us. Instread, these things are being brought forward for political reasons. But I still say without legal advice from our own county attorneys, from our own legal authorities here, how can you vote for this when it is a Dillon Rule question, not even permit time to get an answer to a Dillon Rule question yet every other time we are told that the Dillon Rule is not allowing us to do that we step back, we can't do it, we won't do it. I will not vote, we are asking for a lawsuit, risking taxpayer dollars, because what we are doing here today, with no public input, and no legal advice, not reviewed by staff. HR didn't review this item. Did HR review this item?

Chairman, please come to the mike.

HR,: We reviewed the item in that we did read it but since it was not an item that HR was putting forth, we did not submit comment.

Ms.Waters: So HR has not even commented?

HR: That is correct.

Ms. Waters: This is not an issue about discrimination or non-discrimination. We're not addressing the real issues here today. We're focusing our time and energy on a partisan issue instead of focusing on the business of Loudoun County residents that really need our attention, like that budget, and I hope we don't get more and more of these partisan items to come forward and divide this board from day one. I will not support this. I don't think we have firm legal standing in this action today.

Chairman: Further discussion, Mr. Miller,

Mr. Miller: I was touched yesterday when Mike Turner came in to speak to us. He's a 28 year military veteran, who expressed some, I guess, personal growth, since his mind was enlightened on this point, and it was touching partly because he's my friend and partly because he reminded me of my father who was a 33 year military veteran. He passed away some years ago, about forty years back there was a story about service academy four year graduate who revealed that he was gay. And the academy, under existing policy booted him out, and I asked my father, did he think that was a good use of taxpayer money, to let that person get through four years of school and then not allow him to serve his country. And the old man said, "We can live without him." Some years later, when the question came up again, when President Clinton, probably the first President Clinton, brought this issue to the public consciousness, I asked the old man, how did he feel about gays in the military, and then he said, if they can fight, we can use them. Not a very big shift in his opinion, but it would make a huge difference to a person that it influenced, in his life. We haven't had a lot of complaints, but we've heard from people. I've heard from people. There are folks out there that need to see their government do the right thing. I hope my dad can see what we're about to do, because it is the right thing.

Chairman: All in favor of the motion signify by saying aye. Opposed? That motion will pass 6 to 2, Ms Waters, and Mr. Delgaudio opposed, and the Chairman abstaining.

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