Cuccinelli says Va. constitution does not allow state to fund private charities

January 28, 2011

RICHMOND - Virginia's constitution does not permit giving state money to private charities, according to a legal opinion issued Friday by Attorney General Ken Cuccinelli II, which could potentially affect millions of dollars in annual donations to nonprofit organizations across the state.

Gov. Robert F. McDonnell (R) and legislators of both parties have proposed a series of amendments to the state's two-year, $78 billion budget, including $1 million for the Virginia Sports Hall of Fame, $500,000 for Northern Virginia Family Services and $200,000 for the Special Olympics of Virginia.

Cuccinelli (R) wrote that "the Virginia Constitution forbids the General Assembly from making 'any appropriation of public funds, personal property, or real estate . . . to any charitable institution which is not owned or controlled by the Commonwealth.' '' State lawmakers had for years gotten around that provision by classifying charities as "historical" or "cultural" agencies.

Although the General Assembly has given almost no money to such groups during the worst recession since the Great Depression, such payments had ballooned a few years ago when state coffers were flush. For example, lawmakers included $37 million earmarked for 317 groups in the two-year budget approved in 2006.

Legislators submitted more than $23 million worth of requests for grants to nonprofit groups this year that they hoped would be added into the two-year budget.

"I'm kind of speechless," said Mary Agee, president and chief executive officer of Northern Virginia Family Services. "This is one way for the state to be invested, in a small but important way, for the delivery of services to thousands of residents."

Northern Virginia Family Services' past grants have gone to support an emergency family shelter and a community and childhood center in Manassas.

McDonnell has proposed giving $500,000 each to Operation Smile, a Hampton Roads-based charity that helps children with facial deformities, and Virginia's food banks. He's also suggesting a $1 million donation to promote OpSail 2012, a tourist event that would bring tall sailing ships to ports along the Eastern seaboard to commemorate the War of 1812.

McDonnell's office said the administration will review the opinion and its potential consequences.

"While that review process is underway, the governor requests the General Assembly join him to ensure that all appropriations and pending budget amendments conform to the constitution,'' McDonnell spokesman Jeff Caldwell said. "The administration will follow this same policy while we make final determinations as to the specific steps and decisions that may be necessary in light of this opinion."

A.E. Dick Howard, a professor of law at the University of Virginia who served as executive director to the commission that wrote the state's modern constitution, said the commission that helped revise the document considered state grants to charities and decided to continue a prohibition.

"I think he got it right - the language is pretty plain," Howard said of the 1971 document. "The concern from the committee was that if you open the floodgates and you give money to some, they all stand in line queueing up and asking for money. They were trying to save the General Assembly from themselves."

Cuccinelli's legal statement was in response to a request by Del. John M. O'Bannon III (R-Henrico). O'Bannon asked for the opinion on behalf of constituent Norman Leahy, who has been critical of the proposed spending on the blog Tertium Quids.

"It would be a mistake to ignore this opinion or to pursue extra-constitutional ways to work around it,'' O'Bannon said. "We now have two choices: abide by the rules or amend the constitution to change them."

Leahy said he was "relieved" with the response and noted that at the federal level, legislators recently read aloud the U.S. Constitution with great fanfare.

"Well, in Virginia, they kept handing out earmarks, and it seemed like no one had read the constitution," he said. "Well, maybe now, they will."

Sen. Janet D. Howell (Fairfax), a leading Democratic budget writer, said the issue may be moot this year, because the state has so little money to spend. But she said the grants have traditionally served an important purpose in helping worthy groups serve their local communities, and she hopes to continue them when state revenues are healthier.

"I think the attorney general's opinion is often irrelevant, and it is in this instance," she said. "I don't think his opinion will have any impact. This will be decided by the courts."

kumaranita@washpost.com heldermanr@washpost.com

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