GAZETTE COLUMN: ON TAKING YOUR PROPERTY – AND AMENDING OUR VIRGINIA CONSTITUTION by John P. Flannery

No one wants the government to take his private property for any reason, particularly when it’s the most significant asset an individual owns.

But the government has that power to take, by what’s called eminent domain, certain private  property, often a part of a property, a right of way, but sometimes more, even all of it, and the United States Constitution, in the Fifth Amendment, provides that no person shall “be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.” 

This Fifth Amendment that originally only applied to the federal government was incorporated and made to apply to the several states by the Fourteenth Amendment to the U.S. Constitution.

While any taking is distressing, the rub in its application is the phrase, “public use.”

Years ago, in 2005, the U.S. Supreme Court decided a case, Kelo v. City of New London, that got many concerned when the Supreme Court approved the taking of privately owned real property for a “comprehensive redevelopment plan” as a “public use.” 

To make matters worse, as a political, if not a legal matter, when the dust up from the decision settled, the private developer couldn’t get financing, gave up the project and the land remained empty until it was converted into a dump. 

But before this was known, the disaster that was Kelo, the State Court found that the creation of new jobs, increased tax revenues, and bringing back a depressed area, even absent “blight,” was a “public purpose” that was tantamount to a “public use.” 

The Supreme Court basically adopted the State’s equivalent standard of “purpose” with “use,” and Justice Kennedy said the discovery necessary in these “takings” was to confirm or deny whether the “primary benefit” was to the developer and private businesses financially and then only of “incidental” benefit to the governing body that was responsible for the taking.  It mattered to the court, in Kelo, in upholding the taking as a public use, that the private beneficiaries were unknown when the property was being acquired.

The understandable reaction across the nation was that the government was taking from the poor and giving to the rich.

The Virginia Constitution, in Article 1, Section 11, provides, similar to the US constitution, that “no person shall be deprived of his life, liberty or property without due process of law” and that the General Assembly shall not pass “any law whereby private property shall be taken or damaged for public uses, without just compensation” and “the term ‘public uses’ [is] to be defined by the General Assembly …”

In 2007, the General Assembly did define limitations as to “public uses” on “taking” under  eminent domain. 

But that was not the end of it. 

Our General Assembly has proposed a constitutional amendment.

This amendment has an extraordinary loophole that is mentioned in the ballot text, and it adopts the language that permitted the Kelo decision. 

The Amended constitution would state that “a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise …” 

That was the very test that Justice Kennedy applied in the Kelo case when they approved the private development, that it’s “primary” purpose was not for private gain. 

So, if the “primary purpose” is found “public,” then it is of no consequence that the beneficiary of the taking will make a huge profit.

The Virginia statute is stronger as it now stands and can be adjusted as experience dictates – and without waiting several election cycles to do so. 

There are other provisions that are troubling as they are not defined.

It is who has the burden of proof in one of these proceedings; that’s something that has no business in the constitution – as it should be in a statute so it may be tweaked when it is applied in real cases.

Another provision is that the compensation for the taking won’t just be the value of the property taken, it will be “lost profits and lost access, and damages to the residue caused by the taking.” 

No one knows what that will mean – and this too should be in a statute and clearly defined as it is not now.

On balance, this is a bad amendment, and we are better off with the protections in the existing statute and implementing those aspects that might be of use to property owners when we know what they are precisely.

I know that the public is upset with this law but this amendment will make things worse – and then it will take us years to repair the damage.

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COLUMN: CHARTER SCHOOLS - A REALLY BAD IDEA by John P. Flannery

Everybody wants a quick fix so Johnny can read and write and do ‘rithmetic, and several highly educated parents in Eastern Loudoun got together to start their own school, 6^th – 12^th grade, recruited some folk who had several charter schools in Maryland, and are asking us taxpayers to underwrite their school with our hard-earned tax dollars rather than support our own public schools.

They say their Loudoun Math and I.T. Academy Charter School (the “IT Charter School”) will enhance education for students who want to study science and math and cyber security, sounding a tad like a feeder school to their hi-tech enterprises, rather than an educational leg up for our young folk.

In a time of extremely tight budgetary constraints, you may fairly ask why aren’t we enhancing the schools and programs at the Loudoun Academy of Science, the Monroe Technology Center, or starting another program – if we really need one.  

The IT Charter School says students have to be transported to the schools we have where there is “limited” seating.  Of course, when and if, the IT Charter school erects a building for its students and staff in Eastern Loudoun, students will have to be transported there as well.  As for “limited” seating, the IT Charter School is limited as well, at 192 slots the first year (FY 2013-14), and your child will have to win a public lottery to be admitted, unless, of course, he’s the child of a founding board member or school employee who skips the lottery and enters automatically. 

Parents used to having a say in their schools through a PTO or PTA will have to forget it as the IT Charter School allows no such thing.  Instead the school will have “parent task forces,” and like the Maryland Charter Schools, from whence this school derives, the school will assign you parents “tasks to be accomplished.” 

The IT Charter School application is modeled after the Chesapeake Science Point Public Charter School in Maryland (the “Chesapeake School”).  Ali Bicak and Fatih Kandelas, founding members of the IT Charter School, were respectively a founding member and principal of the Chesapeake School. 

The Washington Post reported that the Chesapeake School was criticized for problems relating to hiring qualified teachers, reflecting the community, using appropriate procurement and bidding processes for outside contracts, and for how they hired foreign nationals.  Days afterwards, according to Maryland’s Capital Gazette, on June 21, 2012, the Chesapeake School sued the Anne Arundel County schools saying they were owed $737,000.  Our schools have no such charges, and can’t sue our school board.

Of course, the rub is what this all could cost us here in Loudoun.  Virginia Code, Section 22.1-212.14 directs our school board to negotiate a per pupil funding paid out of our taxes to any Charter School.  The IT Charter School (in Appendix F, attached to its 90 page application) claimed a total per pupil cost of $2.1 million for FY 2013-14, increasing, year by year, up to $8.6 million, in FY 2018-19.

We can spend our money better on our own existing schools, teachers and students

Charter Schools is an idea whose time has come and passed as unworkable and unworthy of our time and our resources. 

When first imagined in the 1990s, the notion was to take out of the regular public school system the lowest performing students, those who were unmotivated, and coaching them.  It wasn’t about testing and failing.  It wasn’t about opting out of the public school system and supporting alternative separate schools with taxpayer funds.  It was about educating.  Now we test to fail teachers, students, entire schools.  We teach to the test and so Johnny learns less or nothing at all about how to think. 

Charter schools insist they are public when it comes to paying them per pupil but are  private and unaccountable when you want a PTA or have a FOIA request asking what they are really doing.  

 They claim to be non-profit but then subcontract managing the school, making land deals, and have their schools built by for-profit entities.  We taxpayers underwrite the profits to these third party entities while compromising our own public schools. 

This IT Charter school is a bad idea -- as are all charter schools.

GAZETTE COLUMN: ON DELGAUDIO – THE BOARD MISSED ITS CHANCE by John P. Flannery

The Board of Supervisors missed its chance to avoid the stain that Supervisor Eugene Delgaudio casts on this Board and this fine County.

Chairman Scott York issued a statement that the Board intended to look into Mr. Delgaudio’s alleged misconduct, presumably involving fund-raising on County time, among the other things that Mr. Delgaudio’s been accused of doing.  On this score, Mr. Delgaudio admitted that he did raise funds on County time at the last Board meeting.

Chairman York’s announcement of an investigation could have been encouraging except for the fact that there’s hardly anything “independent” about the investigation that the Board ultimately authorized unanimously, 9-0, including, yes, Mr. Delgaudio’s own vote supporting the investigation. 

The Board is going to have its County Attorney select the “independent” prosecutor and pay the “independent” prosecutor a whopping $15,000 to conduct this “impartial” investigation.  Really?  The Board should appreciate how characterizing this underfunded appointment by its own counsel as “independent” is suspect.

Nor can we ignore, in this regard, when evaluating the Board’s efforts, what Chairman York said he’s done already to have this matter “investigated.”  Chairman York said that in March of this year, he referred charges against Supervisor Eugene Delgaudio including, we presume, Mr. Delgaudio’s alleged misappropriation of public services.  He sent “the matter,” he said, to the Loudoun County Commonwealth Attorney, Jim Plowman, who was Supervisor Delgaudio's Loudoun County election ticket mate.  So, the referral was problematic from the start.

In addition, Chairman York chose this “confidential” referral route rather than convening a public meeting of the Board.  Why no public meeting in March?  Why only last week?  Was it because Chairman York had the scent of the Washington Post investigation in March when it was not the widely circulated expose it’s become?  Under these circumstances, the referral looks more like an effort to protect instead of to detect anything questionable about Mr. Delgaudio’s conduct.

Mr. Plowman, in turn, forwarded “the matter,” according to Chairman York, to the Arlington Commonwealth Attorney who, York says, found no violation.  No violation!  Wow!  I’m a former federal and state prosecutor from New York and you can’t get a local prosecutor to clear a traffic ticket, much less an elected official in a corruption investigation. 

What information and what questions did Chairman York present to Mr. Plowman and the Arlington Commonwealth Attorney?

Did they ask whether there was an unlawful misappropriation of public funds when Mr. Delgaudio and his County employees conducted fundraising on county time at taxpayers’ expense?

Did they ask what representations Mr. Delgaudio made to the County, if any, in connection with reimbursed expenses by the County for fundraising seminars that his County staff attended?

Did they ask whether it was a violation for Mr. Delgaudio to blend his responsibility to the County as an elected official with his leadership of Public Advocate, charged with copyright violations?

We know too little about the “investigation” to date.  But we do know that the process in place is suspect because of what preceded the Board’s belated public disclosures – after the Post stories appeared. 

The resolution is simple – the Chairman and Board of Supervisors should go back to the drawing board, get it right this time, and petition a truly independent body, perhaps the courts, so that we appoint someone truly “independent,” rather than someone underfunded and compromised ethically right out of the gate.

We require an investigation that is truly fair, vigorous and public that gets at what really happened.

Otherwise, we are underwriting a process that will surely guarantee our beloved County another ration of ridicule and embarrassment.

GAZETTE COLUMN: OPEN LETTER TO BOS – TIME TO CLEAN UP DELGAUDIO’S ACT by John P. Flannery

Supervisor Delgaudio - and a few of his like-minded friends

Dear Chairman and Members of the Loudoun County Board of Supervisors exclusive of Sterling Supervisor, Eugene Delgaudio,

It’s high time that this Board of Supervisors took a long hard look at Mr. Delgaudio’s alleged misconduct. 

The Southern Poverty Law Center charged recently that Delgaudio headed a gay-bashing hate group called Public Advocate.

Last week, we read reports that Hannah Scoggins, of Public Advocate, that same hate group, was telling Delgaudio’s County staffers what to do, rather than another Senior County employee or the Supervisor himself.

We also learned that Mr. Delgaudio had allegedly misappropriated a private copyrighted wedding picture of a same sex marriage, altered the photo and ridiculed the couple in an out of state political campaign. 

More than that, we’re told that Delgaudio, after a most inappropriate job interviewing process, made it a condition of employment for his county staff, one worker in particular who came forward to talk about this publicly, to raise money for Delgaudio’s political and “charitable” campaigns while working on County time on our tax dime. 

There are reportedly e-mails, contribution lists, and documents, that support these charges, and I have filed a Freedom of Information Act, to see these materials for myself; I understand other citizens have and are doing the same because they’re not sure you’re going to do what’s necessary. 

I do not believe that this is a partisan issue.

I believe both parties and independents see this as a good government issue – as the alleged misconduct violates ordinary standards of decency and tolerance and the proper use of a public office.

While I may disagree with Board Members who oppose same sex marriage, that is a different discussion than the gay bashing, and hateful bigoted speech that Delgaudio spews relentlessly.

Each other Board member’s skin must crawl when Delgaudio renders one of his indecent rants, and you’re associated because you serve with this relic of Old South intolerance.  Bigotry is a category of free speech that should guarantee a seat in the audience once spoken, rather than on the dais as an elected official.

Raising the necessary funds to run for office is an onerous and complex undertaking.  But there are some bright lines when fund-raising is not allowed.  No elected official may rely on his taxpayer paid staffers to call for political or charitable contributions when the staffer is on the county clock, on County time. 

We presume, for this letter and for all time, that no member of this Board supports bigotry, nor believes that an outside hate group should direct campaign staff, or condones the use of public staff to raise campaign or charitable funds, and the misappropriation of public resources.

Accordingly, I most respectfully insist that this Board should ban hateful rhetoric from its chamber and by any elected official who purports to represent the citizens of this County on the Board, not only what Delgaudio has said and done in the past but what we can expect he will continue to do.

Accordingly, this Board should also ban – at the very least - outside hate groups from directing the conduct of our public employees.

Accordingly, this Board should force Mr. Delgaudio to refund every penny of taxpayer funds, if found to be misspent and misappropriated for his fund-raising activities, and, if Delgaudio resists, then you should take him to court and seek a money judgment against him, and deposit the proceeds in the County Treasury.

Accordingly, this Board should refer any criminal charges, should any be confirmed, to a special prosecutor appointed by the Court.

This Board should establish the kind of machinery that the Congress has on its ethics committee to handle such matters in the future but, in the meantime, should these charges be found true, Mr. Delgaudio should be disciplined including but not limited to removing him from any and all leadership position(s) on the Board of Supervisors and on its various Committees.

The Board, like our community, has only just been informed of the breadth of Mr. Delgaudio’s misconduct.  If this Board doesn’t want to be tarred with the same brush, by tolerating his misconduct, it must act firmly and swiftly. 

These recent published reports have prompted another rash of head-slapping questions about what mind-altering substance could possibly exist in Loudoun County’s drinking water that would permit a Delgaudio to be elected to anything.

This Board of Supervisors must draw the line between robust free speech and bigotry, also between legitimate fund-raising and the misappropriation of public services.

This Board must do what’s necessary, hold hearings, examine the evidence, take Delgaudio’s testimony in public, and act upon the findings. 

Studied indifference is not an acceptable response.