Choosing Virginia's Attorney General -- Questions to Ask -- 20th Anniversary Version

 

As folks think about the job that the current Attorney General of Virginia has done, and begin to debate the role of the Attorney General and the candidates in the 2025 election, I've updated a blog entry I first wrote before the 2005 elections regarding the role of the Virginia Attorney General and the scope of the power we afford the person we elect to this too little discussed, "down ballot" race. I hope that you will find it helpful, and that it will make clear that the Attorney General of Virginia is not the "chief law enforcement officer" or even the state's chief prosecutor (except in limited cases) but has a much broader job as the Commonwealth's "general and consumer counsel," "civil rights enforcement officer," and "legal advisor."

Choosing the People's Lawyer: Questions to Ask the current Attorney General about their Performance or future Candidates for Virginia Attorney General 

The Virginia Attorney General is the people’s lawyer serving as our advocate in consumer matters, defending our decisions as jurors in criminal appeals, protecting our investments in charitable organizations and institutions, initiating and overseeing prosecution of government fraud and conflicts of interest, enforcing our state human rights laws and advising the state officials and agencies who serve us about their work and the work of their agencies. 

Just as you carefully choose the lawyer who advises your business and your family, each Virginian should look carefully at the qualifications and stated priorities of the people who will be running for Attorney General in 2025 and evaluate critically the job the current AG has done before either reelecting them or “promoting” them to a new job.  

Here are some questions to ask that will help you decide if the current AG is doing/has done a good job and which candidate you may want  to "hire" as your lawyer when you enter the polling booth to vote on November 2025: 

How will the candidates represent your interests as "consumer counsel?" State law requires the Attorney General to represent the "interests of the people as consumers." What does this mean to the candidates for Attorney General? Will either of them take an active role in investigating and enforcing Virginia’s Consumer Protection Act prosecuting actively those who deceive consumers by making false claims about their products or services? What action will either take to protect consumers’ interests when the State Corporation Commission reviews insurance, electric and telephone rates? One past Attorney General helped reduce workers’ compensation insurance costs for businesses by aggressively fighting insurance rate cases before the State Corporation Commission. Others have been less active. 

How will each candidate decide when to challenge or defend a law passed by the legislature, appeal a case, or sign an amicus ("friend of the court") brief? Past Virginia Attorneys General, acting on behalf of the people of the Commonwealth of Virginia (their ultimate client), have: 1) refused to defend the legislature’s decision to increase office allowances for members of the House and Senate (the legislature won); 2) defended at trial and on appeal a plainly unconstitutional statute passed by the legislature that sought to ban a particular abortion procedure (the so-called partial birth abortion bill); 3) filed lawsuits attacking the application of certain EPA rules and the federal Motor Voter Law to Virginia; 4) authored or signed briefs that advocated severe limitations on the right of individuals to sue the state for discrimination under the Americans with Disabilities Act, the Age Discrimination Act and Title IX of the Education Amendments of 1972; 5) defended secrecy in the implementation of the death penalty; 6) defended solitary confinement in state prisons and 7) decided not to defend the unconstitutional amendment to our Virginia constitution that denies marriage equality to LGBTQ Virginians. The current Virginia AG Jason Miyares is leading an effort in the courts to ban Tik Tok, is using their office to go after Democratic fundraising platform ActBlue, is attacking Title IX rules that protect against discrimination in schools and colleges and in sports programs, went after the Commanders on unreturned ticket deposits, and has obtained three writs of actual innocence for people wrongly convicted.  How will the next Virginia AG make these decisions? Will their choices reflect their personal beliefs, those of their respective political parties or some other standard? Will they consult with the Governor or the legislature before committing the people of the Commonwealth to a side in a legal dispute? 

Will the candidates be "activists," “traditionalists,” or "strict constructionists” when it comes to interpreting the law? State law requires the Attorney General to issue formal opinions interpreting state and federal law when asked by certain public officials. The questions asked each year cover far reaching issues from the legality of "pull tabs" in fraternal lodges to the right of localities to regulate shooting ranges to the Lieutenant Governor’s authority to vote as "a member of the Senate." Just as it is important to know how a judge will apply the law, it is important to know how a candidate for the office of Attorney General will perform this judge-like responsibility. One example shows the power the Attorney General can wield through the opinion function. In 1962-63, in 1966-67 and in 1991, three Attorneys General opined that it was unconstitutional under the Virginia Constitution for public school divisions to provide free bus service to students attending private religious schools. The three Attorneys General interpreted the Virginia Constitution as setting a stricter standard for the separation of church and state than is set by the First Amendment. This longstanding interpretation was never addressed by the Virginia legislature nor overturned by the Virginia courts. In 1995, stating simply that "I am of the opinion that these prior opinions do not accurately state the current law," then Attorney General James Gilmore issued an opinion overruling the prior opinions and interpreting the law as permitting local school divisions to provide bus transportation to students attending private religious schools. As Virginia’s current AG, Jason Miyares has opined that federally recognized tribes in Virginia don’t have sovereign dominion over their lands and that college trustees must be loyal to the Commonwealth not the institutions they are appointed to serve. How will the next AG approach this important duty? 

Will the candidate be a good steward of your tax dollars? The Attorney General of Virginia, who makes a salary of $150,000 a year plus an allowance for expenses of $9,000 , is the managing partner of a public law firm with an authorized employment level of 577 people and a budget (inclusive of Medicaid fraud and the division of debt collection) of  $84 million in state and federal funds. These amounts do not include the cost of additional lawyers paid for by various state agencies but supervised by the Attorney General (e.g., at universities), and the millions of dollars spent annually on outside counsel (private lawyers and law firms who handle matters ranging from intellectual property and immigration to issuance of bonds to collection work) all of which are paid out of state agency budgets ($11 million in 2013-14, the last data available).

What steps will each candidate take to be sure that dollars spent on the state’s legal work are well invested and that the quality of representation provided to taxpayers is high? What will the candidates do to improve the state’s collection of debts owed and fines and penalties unpaid or to take steps to forgive debts (the Division of Debt Collection does operate under the auspices of the AG even though it is often not included in AG budget totals)? How will each candidate account for the $9,000 a year that they will receive as Attorney General for "expenses" "not otherwise reimbursed?"  Past attorney generals have kept and reported the amount as income and filed requests for reimbursements of all expenses. One disturbing reality of the AG's budget management is that the office sought budget language that allows dollars allocated for consumer protection, anti-trust and "business regulation" to be spent on any "litigation initiated by the Attorney General" or on the costs of the civil commitment program that can result in people being committed to state mental health facilities for life after having served their criminal sentences for sex offenses.  This means money that was allocated to protect consumers and businesses from high utility and insurance rates and prosecute anti-trust violations can be diverted to non-consumer protection issues and cases.

Will the candidate’s management practices as Attorney General reflect a commitment to full equality of opportunity at all levels? Will the AG establish a culture of inclusion in the office? The Attorney General can hire and fire employees at will. No person employed in the AG's office enjoys the protections other state employees enjoy. Will the candidate seek and hire employees based on merit? Will the candidate commit not to discriminate in employment based on race, national origin, gender, religion, disability, Veterans’ status, pregnancy, sexual orientation, or gender identity? Will the candidate commit to ensure that the Office’s hiring and personnel practices reflect a commitment to merit over political affiliation and full equality of opportunity and compensation at all levels of employment? Will the candidate commit to assuring that office policies are enacted that respect the dignity of transgender employees? How will each candidate assure that the contracting and procurement practices of the Office of the Attorney General under their leadership assure that small, women and minority owned businesses get their fair share of the state dollars that the Office spends based on their market availability? Will the candidate agree to post to their websites their EEO-1 reports to the federal government that detail the make-up of their workforces? See this article I wrote for some historical background on this issue.

How will the candidate grow the Office for Civil Rights in the Department of Law (the AG's office) and protect against conflicts of interest when the state agencies the AG represents are the focus of discrimination complaints? 

The Office for Civil Rights in the AG's office was given expanded authority to investigate and litigate civil rights claims during the 2021 Special Session 1.  Included in this expanded authority is the authority to investigate pattern and practice claims of unlawful deprivations of civil rights by law enforcement personnel or agencies.  It is clear that, under Attorney General Miyares, the Office is failing to perform the functions assigned to it by the legislature.  Staff of the Office were fired when Miyares took office and victims of discrimination have been consistently denied “right to sue” letters that Miyares was required to issue after complaints have languished more than 180 days in their office. Suffice it to say that Virginians should demand more from the next Attorney General to ensure that the Office for Civil Rights enforces the law and provides Virginians relief from unlawful discrimination consistent with this policy set forth in the amended law: "It is the policy of the Commonwealth of Virginia to provide for equal opportunities throughout the Commonwealth to all its citizens, regardless of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, sexual orientation, gender identity, disability, familial status, marital status, or status as a veteran and, to that end, to prohibit discriminatory practices with respect to employment, places of public accommodation, including educational institutions, and real estate transactions by any person or group of persons, including state and local law-enforcement agencies, in order that the peace, health, safety, prosperity, and general welfare of all the inhabitants of the Commonwealth be protected and ensured." 

Virginians should ask the current AG and those seeking this office in the future what their plans are to fully implement the Human Rights Act and activate their Office for Civil Rights as an agency fully focused on protecting all Virginians from discrimination in their workplaces, schools, and businesses.

How the current Attorney General and those seeking the office in the future answer these questions will reveal much about what kind of leader each is or will be as Attorney General or in any other leadership position they might seek in the future

 

Know Yourself, Be Yourself, Speak for Yourself or Not

I am familiar with the essential conflict that can arise when you want to speak for yourself and in your own voice but you have a job that requires you to speak for your boss in their voice or to speak for an institution in a voice that serves the institution's interests and purpose rather than your own.

The president of Colorado College, L. Song Richardson (a lawyer and expert on DEI issues and race and politics), expressed the conflict this way as she explained in an interview with Inside Higher Education, why she was resigning as president after only three years in office:
 “There are many things that I can talk about in my role as president that are consistent with the things that we are trying to do as we move forward in this higher ed space. And then there are things that if I were an academic, as a law professor and scholar, I could speak more robustly about,” Richardson said. “For instance, I’m a scholar of race, equity and inclusion. I have a lot of deep knowledge, based on my own scholarship, about the issues that are being debated today. And because of my role as president, I won’t speak as I would if I were an academic.”

According to IHE, Richardson wrote [in announcing her resignation] that "as the national dialogue around “equity and fairness” has intensified, she has felt “increasingly torn between my desire to pursue that work as an academic with the freedom to fully engage in these debates, express my personal views, and challenge the status quo” and her responsibilities as president of the college."
Richardson chose to resolve this conflict by returning to academia to run "a new institute focused on equity, opportunity and leadership."

Seeing this as a fundamental choice she had to make is acknowledging that we don't expect or want college presidents or their institutions to lead on moral issues.  The Foundation for Individual Rights and Expression (FIRE) and others have called on boards of trustees to impose "institutional neutrality policies" theoretically to protect "free speech."  The Governor of Utah told his public colleges the state didn't need them to take positions on political issues. The Governor of Virginia and his Attorney General have hinted, as one commentator put it, at "thought policing" Virginia educational institutions from K-12 through college.

 
All this makes me wonder how former Princeton University and Mellon Foundation president William G. Bowen would be "seen" today. Author of "The Shape of the River" a landmark book in the debate over "affirmative action" in college admissions, Bowen was an advocate for race conscious admissions as President of Princeton and after who said this in a speech in 2005:

"Race remains the most deep-seated and intransigent barrier to opportunity. That was, is, and will remain the reality in this country for the foreseeable future. ... [P]aying attention to class and background, which we strongly favor, is, at this juncture in our history, no substitute for paying attention to race.  ... Americans always seek the painless alternative, and it is much easier for most people to be sympathetic to economic disadvantage than it is for them to understand and address challenging issues that are due in large part to what Glenn Loury has called the "unlovely history" of race in America."   Bowen continued:  "But surely it ought to be possible to think about opportunity from more than a single perspective--to recognize that the river of opportunity has tributaries of may hues and many kinds. There is also the matter of attitude. It is clearly necessary to focus on the difficulties and challenges involved in helping this river wind to the sea, however measured is its progress. But we should also be grateful for the privilege of addressing such fundamental questions, and we should be permitted to take some satisfaction from trying to do the right things for the right reasons." 
From "Extending Opportunity: What is to Be Done?" included in Ever the Leader, Selected Writings 1995-2016, pages 68- 85

 

Extolled in 1998 for his leadership and use of his labor economist training to make the case for race conscious admissions, would Bill Bowen be chastised in 2024 for taking a political position on a controversial issue while serving as Princeton's President or leading a major Foundation?  Would he feel forced to choose between speaking his mind based on his academic training and expertise and leading an institution? Perhaps. Perhaps not.  Definitely worth further thought.

Disrupting Non-Profits -- Part II

 

Disrupting Non-Profits – Part II

Empowering Contributors: The Vital Role of a Content Contribution and Payment Policy for Nonprofits

In the dynamic landscape of nonprofit work, passion fuels purpose, and volunteers are the lifeblood of advocacy. It’s time for non-profits to assign value to the stories and pictures contributed by these volunteers, people impacted by your work, and donors that you use to “sell” your organization in marketing and fundraising publications and social media posts. If amateur college athletes have a right to be paid for the use of their images and stories in marketing their institutions, why not other people on whom you rely to frame your institutional narrative and define its impact for supporters?  Having a well-defined content contribution and payment policy is a strategic move toward living your organization’s values and fostering collaboration, transparency, and fair recognition.

Here's why every nonprofit should consider adopting such a policy:

1. Honoring Contributions:

At the heart of every nonprofit are the individuals who lend their time, expertise, and personal experiences to advance the cause. A clear policy that assigns a monetary value to these contributions signals that the organization honors these contributions and the people who make them, creating a culture of appreciation and respect.  Allowing each individual to choose whether to donate or accept payment for the content or images they allow the organization to use  accords everyone the dignity of both knowing the value assigned to their contribution and the freedom to choose to make it a gift.

2. Encouraging Diverse Voices:

A content contribution and payment policy encourages a diverse range of voices to participate in shaping the organization's narrative. By choosing to offer individuals compensation for their expertise, personal stories, or specialized knowledge, nonprofits open the door to a wealth of perspectives that might otherwise remain unheard. Not everyone can make gifts of their talent or their time.  Paying for content or formally recognizing the gift of content as an in-kind contribution assists the organization in assuring that its work is “authorized” by those directly impacted by the work.

3. Quality Content Creation:

Compensating contributors for their ideas and words , whether they are captured in  articles, blogs, or speeches, or offered as advice in a meeting, inherently promotes a commitment to quality. Individuals are more likely to invest time and effort in creating impactful content when they know their contributions are recognized and valued.

4. Transparency Builds Trust:

Adopting a payment policy adds a layer of transparency to the organization's operations. Contributors, volunteers, and stakeholders appreciate knowing the criteria for compensation, the approval process, and the budget considerations. This transparency builds trust and strengthens the organization's reputation.

5. Legal and Ethical Compliance:

A carefully crafted policy ensures that the organization remains compliant with legal and ethical standards. It sets clear boundaries for compensation, avoiding potential pitfalls related to labor laws, intellectual property, and regulatory requirements.

6. Strategic Budgeting:

Establishing a budget for acquiring intellectual property allows nonprofits to allocate resources strategically. This not only helps to fund fair compensation but also ensures financial sustainability by preventing unforeseen expenditures.

7. Empowering Decision-Makers:

Delegating the responsibility of approving agreements and compensation to a designated individual streamlines the decision-making process. This ensures consistency, efficiency, and adherence to the established budget and payment scale.

8. Mitigating Risks:

The policy serves as a proactive measure to mitigate potential risks associated with content creation and compensation. Clear guidelines help prevent misunderstandings, disputes, or legal complications, safeguarding the organization's reputation.  Coupling the policy with an approved licensing agreement and a uniform payment scheme to be signed by all individuals who agree to provide content or images further minimizes risks.

9. Reflecting Organizational Values:

A content contribution and payment policy is a tangible expression of the organization's values. It communicates to contributors, staff, and the community that the nonprofit is committed to fairness, inclusivity, and ethical practices.

For any nonprofit, adopting a content contribution and payment policy is a strategic investment in the people who make the organization and the nonprofit sector thrive. It empowers contributors, enhances organizational credibility, grounds the organization’s Diversity Equity and Inclusion (DEI) work, and ultimately contributes to the success of the nonprofit's mission. In short, the returns on "leading the market" by adopting such a policy and the licensing agreement necessary to implement it make it worth serious consideration by any organization currently "using" its donors and volunteers to sell the organization and convey its impact by sharing their stories and themselves.