Every now and then, an issue surfaces that drives me to the Federalist Papers, the collection of scholarly arguments that the Founders, who supported ratification of our constitution, used to build support among the states.

I am not a lawyer, nor am I a constitutional scholar, but I have read The Federalist cover to cover because I’m an admirer of superb logic, clear debate, and historical significance.

In other words, I like it.

This week we learned that one of the new delegates elected to the Virginia General Assembly, Delegate Dawn Adams (D-Richmond), who thought — during her campaign — that if elected she would step down from her lucrative state job to serve in the General Assembly.

That was a principled thing for her to contemplate and the right thing for her to do.  But this past Monday, she had a change of heart.  Now it looks like it’s harder to walk away from a $117,810 state-funded salary than to settle for the whopping $17,640 the state pays its legislators in the House.

Indeed, there exists an Attorney Generals’ opinion issued by Mark Earley stating that a state employee can also serve as a legislator.  So, I dug into Federalist Number 47, written by James Madison, a Virginian.  In January of 1788, the gentleman from Montpelier cited a quote from Montesquieu, one of the towering philosophers of the Enlightenment period, who wrote this.

“There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates…”

Pithy.  But also true.

The Founders were very keen on this idea of the separation of powers.  They, therefore, chaffed under the notion of one branch exercising the powers delegated to another.  So too should we now.

However, if you are unconvinced by the writing of the Founders, then maybe the Constitution of Virginia, to which each General Assembly member is sworn to uphold, will be compelling.  The second paragraph of Article IV, Section 4, speaks to the “Qualifications of senators and delegates” and could not be clearer.

“No person holding a salaried office under the government of the Commonwealth, and no judge of any court, attorney for the Commonwealth, sheriff, treasurer, assessor of taxes, commissioner of the revenue, collector of taxes, or clerk of any court shall be a member of either house of the General Assembly during his continuance in office; and his qualification as a member shall vacate any such office held by him.”

It’s hard to be more eloquent than either Madison or Montesquieu, but the Constitution of Virginia is abundantly so on this point.  Adams can certainly appropriate to herself the same Attorney General’s opinion to keep both jobs that previous members have.  But the law — opinions about the law notwithstanding — says she should step down from her state job or resign from the General Assembly.  Period.   

But we are in a political age in America where the pursuit of power eclipses principle, even the law.  One suspects the Adams seat would yet again be a very competitive race in a special election that would ensue.  So, Adams can be expected to reject an old English proverb that says, “you can’t have your cake and eat it too.”  Besides, a $117,810 cake is a tempting morsel.  

The General Assembly needs to address this entire matter.  Consider the potential conflicts of interest that result from a state employee also serving as a state legislator. Some questions might be instructive.

  • Will Delegate Adams recuse herself from voting for Virginia’s budget if it includes a pay raise for state workers?  Obvious implications there.
  • Will she recuse herself if the legislature votes to enhance the Office of Integrated Health in the Virginia Department of Behavioral Health and Developmental Services (VDBHDS) where she is a senior director?   
  • Will she recuse herself if the legislature enhances the power and duty of her boss?
  • Will she recuse herself if there are any improvements to the Virginia Retirement System that might benefit her when she retires?

Remember, the most important bill the General Assembly considers each session is the budget bill.  Having been an appropriator in my time in Richmond, it’s difficult to imagine how a state employee serving as a state legislator could not have a conflict of interest of some fashion when it comes to the budget that funds the state, their salary, and their agency.

But there are other questions that go to the heart of why it’s ethically problematic for state workers to serve as General Assembly members?

  • When a state employee returns to their state job after the Session, will they be treated with deference by co-workers and even supervisors because of their special status as a member of the General Assembly?
  • Will their supervisors be more or less inclined to give them special access to the leadership of their agency?  After all, they could impact policy in a demonstrative way, maybe even some they don’t like to deal with on the job.  
  • Indeed, will they be fast-tracked for promotion as a subtle acknowledgement of their special and influential status?
  • Will they receive special treatment and time off to deal with “pressing legislative matters”.  We all know how short those lunch breaks are, don’t we?
  • Will other agencies of government give them special treatment because they too are rank and file state workers?
  • And of course, will their opportunities to move to better jobs in other agencies be enhanced based on the generosity of the General Assembly toward those very agencies, a budget bill that they can influence even if they can’t vote for it on the record?  

To be clear, I am not suggesting any of this will be the case with Delegate Adams.  I am sure she would not abuse her position or cause others to grant her special privileges.  I may not agree with her politically, but I have no basis — none — to believe that she will not be fully ethical.  Rather, this is an issue of the appearance of ethical problems and potential conflicts of interest, which is why the General Assembly placed this prohibition in our state constitution in the first place.

Yet that prohibition does not apply to current members of the General Assembly who are fulltime employees of local government.  One must ask if the rationale for a state employee probation shouldn’t logically extend to local government employees also. Remember, nearly one half of the Commonwealth’s revenues are returned to localities, not to mention the law-making the General Assembly does that impacts localities directly. If the General Assembly re-examines this policy, they should be inclined to even-handedness and make clear that if you are a government employee at any level, the law must apply to all.  Such is most certainly the case at the federal level.

Here’s the point.  The power of the purse is the power to endow.  It was never the intent of the Founders to use government to potentially enrich its legislators.  The General Assembly and the Governor should follow the Constitution of Virginia.

Step one is to make clear by statute their support for what ought to be a plain reading of the constitution.  Given past Attorney General opinions, that clarity is needed.

Step two would be a constitutional amendment that clearly prohibits federal, state, and local workers from serving in the General Assembly so long as they remain in their government jobs.  That would be consistent with the intent of our constitution now and would also make clear, that when it comes to state legislators, the appearance of ethical or conflict of interest issues must be eliminated.  The integrity of our system demands such.  Remember, the power of the purse is the power to endow.  Government workers, who depend directly on the budgetary prerogatives of the General Assembly should not be doing the legislating.

As Montesquieu, said “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates”.  So, let’s make abundantly clear that which should be plainly clear and address this breach of constitutional intent.

Now.


Scott Lingamfelter is a former member of the House of Delegates and a retired colonel in the U.S. Army.