Perks of the Trade Extended at Taxpayers' Expense

By Rosalind S. Helderman
Washington Post Staff Writer
Sunday, May 21, 2006

RICHMOND -- During their annual legislative session, Virginia lawmakers enjoy an automatic pass from jury duty. They're allowed to ignore any lawsuit filed against them. The General Assembly's legions of lawyers can delay any court hearing.

And that's in addition to the $130 expense check delegates and senators collect each day they are in Richmond while in session.

The perks are all part of long-standing traditions and laws -- some with roots in English parliamentary history -- designed to ensure that a citizen legislature can balance public service with a normal life.

But they were also intended to lapse at the end of the commonwealth's short legislative session -- typically 45 or 60 days a year.

Split over whether to raise taxes to improve the state's transportation network, the General Assembly failed to agree on a new budget in its allotted 60 days this year and adjourned March 11 without one. On March 27, lawmakers gaveled open a special session to resolve the dispute. That means legislators have been taking advantage of their privileges for an unprecedented 116 days -- almost four months.

"The modern constitution contemplated a limited session," said A.E. Dick Howard, a University of Virginia professor who helped draft Virginia's modern constitution. But "in a session without limit, you get indefinite privileges. At some point, you might wonder if the balance has slipped."

During the regular session, all 140 members are needed in Richmond every day. The start of the special session, convened to consider transportation bills and the state budget, has meant more infrequent meetings. But at least a handful of lawmakers are needed to constitutionally open a so-called "pro forma" session every three legislative days. The sessions typically last just a few minutes.

The full Assembly has also met several times.

Although 16 delegates and two senators have chosen to decline their expense checks during this unusual time, the other delegates and senators are regularly collecting each time they attend a pro forma session. In all, as of May 12, Virginia taxpayers had paid more than $126,000 to cover expenses during the extra session.

Lawmakers said they may need the per diem if they take a day off from work for Richmond duty. Of Northern Virginia's lawmakers, only two have attended more than a couple of the quick pro forma sessions used to satisfy the constitution's requirement.

Del. Robert H. Brink (D-Arlington), who has attended six sessions, has announced he will give half his money to the League of United Latin American Citizens scholarship fund. But he said he is sympathetic to those who cannot afford such benevolence.

Del. Jeffrey M. Frederick (R-Prince William), has attended five sessions. He said he stops in only when he is in Richmond for other meetings. But he is unapologetic about collecting the money.

"I think what we're doing is important, and I think it's important that we not send the message that you have to be a millionaire to do this job," said Frederick, who runs an Internet consulting business.

Howard said the oldest privilege provided to lawmakers is also the most limited in its application. A line in Virginia's constitution provides delegates and senators with immunity from arrest during legislative sessions, except in the case of felonies, treason or "breach of the peace."

The privilege dates to English parliamentary tradition, he said, when the king would sometimes arrest members of the legislative body to keep them from setting policy he opposed.

But Richmond defense lawyer Steven D. Benjamin said it provides little protection today because lawmakers have passed laws that say legislators can be arrested in any criminal matter.

Virginia law also gives legislators the same kind of jury duty exemption during sessions as those given to the president of the United States, who is exempt from service year-round.

Assembly members argue that serving on a jury could be virtually impossible even during a special session, when delegates and senators spend much of their time at home but could be called to Richmond at any time.

"It could be a legitimate problem," said Sen. Mary Margaret Whipple (D-Arlington).

A lawsuit, too, could be time-consuming and distracting for a legislator who is supposed to be working full time on the people's business, legislators said. So Virginia law provides that suits filed during session can't be adjudicated -- and lawmakers don't have to show up for hearings or respond orally or in writing.

"I'll tuck that one away," cracked Whipple, who said she hasn't used it yet.

Lawmakers say they realize session perks were never intended to extend for months. And yet they maintain that the system is self-correcting when word of potential abuse becomes public.

The best example, recalled in Richmond 10 years later with a mix of chuckles and chagrin, was the infamous case of a Suffolk delegate arrested in a local park in 1996 and charged with misdemeanor public indecency. Del. Robert E. Nelms (R) -- who argued that he had been urinating, not exposing himself -- at first claimed he was protected from the charge by legislative immunity. He later backed down and accepted punishment after public ridicule.

The next year, the General Assembly clarified the constitutional immunity to more clearly state it did not apply to misdemeanors.

Brink said he'd prefer to forgo the benefits and end the special session. But he'd also oppose any move to lift them during special sessions. Besides, he said, he hopes special sessions remain a rarity.

"I don't want to do anything that makes it seem that we have to structure ourselves with the expectation that we'll be in special sessions," he said. "They're just wrong."