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.

Deeply Honored and Humbled

On Saturday, July 22, 2023, my Delegate, Betsy Carr, called to say that she wanted to come by my house to drop "something" off.  She appeared with a printed and framed copy of the resolution set out below passed by the House and Senate of Virginia last February.

I am so incredibly honored that the legislature would see fit to pass this very flattering resolution. Humbled that they would do so, and humbled by the fact that someone, like me, who sometimes holds herself out as knowing a bit about the Virginia legislature and its doings, would not have known about this until now.  An important lesson to go with the honor bestowed.  

Grateful for both the honor and the lesson! Thanks to Delegate Carr, Delegate Patrick Hope, Senator Adam Ebbin, Senator Emmett Hanger, and Senator Scott Surovell for being patrons of the Resolution.

HOUSE JOINT RESOLUTION NO. 718 Commending Claire Guthrie Gastañaga.

 

Agreed to by the House of Delegates, February 20, 2023 Agreed to by the Senate, February 22, 2023

 

WHEREAS, Claire Guthrie Gastañaga, an esteemed advocate for civil rights and liberties and the executive director of the American Civil Liberties Union of Virginia, retired in 2021 after nearly nine years in the role and decades of service to the Commonwealth; and

WHEREAS, Claire Gastañaga came to the American Civil Liberties Union (ACLU) of Virginia with a tenacious firebrand personality that is well-known at the General Assembly and a relentless energy for pursuing a fairer, more just, and more equitable Commonwealth that she has brought to every role, conversation, or debate; and

WHEREAS, under Claire Gastañaga’s leadership, the ACLU of Virginia expanded from a staff of six to a staff of more than 20 while its membership tripled, growing from 8,500 to more than 28,000 members; and

WHEREAS, the ACLU of Virginia’s accomplishments during Claire Gastañaga’s tenure included successful litigation for LGBTQIA rights, passage of laws protecting individuals’ privacy, and the publication of various reports examining the criminal justice system; and

WHEREAS, over her illustrious career, Claire Gastañaga has been a tireless and visionary advocate, consistently urging organizations and people in power to fight for bold policy changes and to use their platforms to better their communities; and

WHEREAS, Claire Gastañaga’s influence can be seen in many meaningful social movements over her decades of service, from the pursuit of marriage equality to the fight for a fundamental right to vote for all Virginians, and she has been honored by many organizations for her dedication to LGBTQIA rights and for her commitment to racial justice; and

WHEREAS, Claire Gastañaga has added immeasurable value and an untold number of accomplishments to the organizations she has supported, including Equality Virginia, the Virginia Coalition of Latino Organizations, and the Virginia Sexual and Domestic Violence Action Alliance; and

WHEREAS, throughout her professional life, Claire Gastañaga has been a trailblazer and an inspiration to women across the Commonwealth, holding roles previously only occupied by men and always using her position to bring greater awareness and dignity to the disparities that cut our communities across lines of race and gender; and

WHEREAS, Claire Gastañaga previously served as the chief of staff and special counsel to the Speaker of the House of Delegates and was the first female Chief Deputy Attorney General of the Commonwealth; and

WHEREAS, generations of state officials have benefited from Claire Gastañaga’s incomparable assistance and wise counsel, and her forceful advocacy has had a profound and positive impact on many lives throughout the Commonwealth; now, therefore, be it

RESOLVED by the House of Delegates, the Senate concurring, That the General Assembly hereby commend Claire Guthrie Gastañaga, a true embodiment of what it means to commit one’s life to serving the community and being an agent of change, on the occasion of her retirement; and, be it

RESOLVED FURTHER, That the Clerk of the House of Delegates prepare a copy of this resolution for presentation to Claire Guthrie Gastañaga as an expression of the General Assembly’s admiration and gratitude for her contributions to the Commonwealth and best wishes for a long and fulfilling retirement.

Starting A 501 C3 Nonprofit in Virginia-- Or Not ...

Launching a 501c3 Non-Profit in Virginia

Answers to Some Questions by Claire Guthrie Gastañaga[1]

 Should I start a new non-profit and, if so, what kind?

Before you start, look at this flow chart published by the Minnesota Council of Nonprofits and ask yourself if starting a non-profit is really necessary or are you able to pursue your goals by investing your time, talent and treasure in an existing organization?  Once you’ve asked yourself those questions, ask whether the organization is to be charitable, educational or scientific or a social welfare/advocacy organization. If the latter, you would want to organize as a 501c4 rather than as a 501c3 (that's a topic for another day).

 Is a  501c3 nonprofit a corporation?

A nonprofit is an organization first. It can be an unincorporated association but generally the first step is to form a corporation. That establishes some limits to individual liability. To form a corporation and do it in a way that means the IRS will affirm the organization’s status as a 501c3 tax-exempt non-profit organization, requires the organizer(s) to start with a clear purpose that will meet the definition of a public charity that is operated exclusively for an exempt purpose.

Here's how the IRS defines exempt purposes: “The exempt purposes set forth in Internal Revenue Code section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and the prevention of cruelty to children or animals.  The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erection or maintenance of public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.”

Once you have your exempt purpose clearly in mind and you’ve satisfied yourself that there is no better alternative, you are ready to develop and file articles of incorporation with the State Corporation Commission, write by-laws, ask the IRS for an employer tax ID number, and register with the Virginia Department of Agriculture and Consumer Services so you can solicit funds.  After that, you’ll want to file the paperwork to get the IRS to recognize your status as a tax-exempt 501c3 organization. 

 Can we raise funds before the IRS has recognized our tax-exempt status as a 501c3?

You can raise funds once you’ve got your paperwork in order and it is clear your organization is operated exclusively for an exempt purpose. Nonetheless, some donors who want to be able to take tax deductions for their contributions are hesitant to give before you’ve received your recognition letter from the IRS. This is particularly true of foundations. Note, however, that 86% of taxpayers now take the standard deduction and don't itemize, so they may not care about whether their contribution is tax deductible.

You should have an attorney review your paperwork before any filing with any state or federal agency. Dunlap Law, where I'm a partner, offers flat fee and subscription services for non-profits. Fill out the firm's Vital Signs Checkup to get started. The Greater Richmond Bar Foundation matches non-profits with pro bono attorneys. https://grbf.org

Who does the work when we first get the non-profit organized?

A start-up organization usually doesn’t have paid staff but rather has a board of directors that is responsible for both operating the organization (i.e., doing the staff work to provide services, etc.) and governing it.  This is called a “working board.” 

Sadly, at this stage, it is often difficult to do both jobs well, and the failure to address governance issues can keep the organization from ever gaining stability and outgrowing the start-up phase of the non-profit life cycle.

Can we hire paid staff?

The most important step toward becoming a mature organization is hiring staff to do the day-to-day work, allowing the board to focus on longer-term strategy and truly be purpose-driven.

 

Here is a link to a publication on the 6 competencies a non-profit executive director should have: https://boardsource.org/ceo-core-competencies/?utm_campaign=Resources&utm_content=221689229&utm_medium=social&utm_source=linkedin&hss_channel=lcp-30636

 

Can charitable 501c3 profits advocate for issues? Can they lobby legislators and executive branch officials for policy change directly or through their members?

YES! And YES!

But there are limits and requirements. Key resource: Bolder Advocacy, https://bolderadvocacy.org/advocacy-defined/

 

Resources

Handbook for Starting a Nonprofit

https://www.minnesotanonprofits.org/resources-tools/publication-detail/handbook-for-starting-a-successful-nonprofit

Alternatives to Starting a Nonprofit (flow chart)

https://www.minnesotanonprofits.org/resources-tools/starting-a-nonprofit/alternatives-to-starting-a-nonprofit

 Working Board vs. Governing Board

https://www.nmblstrategies.com/blog/key-differences-board-of-directors

 What’s the difference between a working board and a governing board?

https://www.youtube.com/watch?v=gtWIoQLbPAg

https://www.compasspoint.org/board-cafe/working-board-vs-governing-board

https://www.nonprofit-knowhow.com/blog/working-board-vs-governing-board

 Seven Life Cycles

https://www.gcn.org/articles/The-nonprofit-lifecycle-A-model-for-making-smart-decisions [take the quiz]

 Purpose-Driven Board Leadership

https://boardsource.org/research-critical-issues/purpose-driven-board-leadership/

https://ssir.org/articles/entry/the_four_principles_of_purpose_driven_board_leadership?utm_referrer=https%3A%2F%2Fboardsource.org%2F#

 

Legal perspective on Purpose-Driven Boards

https://nonprofitlawblog.com/boardsource-putting-purpose-first/

https://nonprofitlawblog.com/__purpose-driven-board-leadership/

https://nonprofitlawblog.com/more-on-purpose-driven-board-leadership/

 Board’s Role in Advocacy – Stand for Your Mission

https://standforyourmission.org/advocacy-your-board/

 

 

---

[1] This blog is not intended as legal advice but is information offered for educational purposes.

 

Mass Surveillance Coming to Virginia

 

UPDATE: A coalition came together to defeat these two bills for this year. Congrats due to @JusticeFwdVA, @LegalAidJustice, @AFPVA, @VAstudentpower, @thcjusticenow, @ACLUVA, and @ActivateVA. 

These groups collaborated and their effective advocacy resulted in both the House and Senate bills being recommitted on Tuesday, February 22, 2023, to the respective Transportation Committees from whence they came. That means that this Flock-powered statewide mass surveillance legislation is dead in the Virginia General Assembly for this 2023 legislative session.  

But the issue of Flock spurred mass surveillance is alive and definitely well in Virginia.  Fairfax County Police say that they will deploy more than 2 dozen Flock powered ALPR's in the County in so-called "high crime" areas this spring.  Fairfax residents should get with their County Board representatives to call a halt to mass surveillance in their communities.  More info in this article that appeared in FFX Now.

Flock Driven Mass Surveillance Legislation

Two bills are close to passage in VA that would bring unlimited mass surveillance to the Commonwealth’s highways.

SB 1165 (Lewis, D)

HB 1437(Wiley, R)

This legislation would authorize a statewide mass surveillance system to be operated by the State Police using a private vendor to install hardware to collect data on motorists using permanently installed license plate readers on state highways.  It would also unleash similar local systems to be operated by local police.

The legislation has serious and significant implications for our privacy and for the increasing unregulated/unmonitored use of technolgy by law enforcement. It will expand the integration of mass amounts of personal information in private data bases accessible to law enforcement without a warrant under the Third Party doctrine exception to the Fourth Amendment.  

The proposals under consideration in Virginia would authorize statewide deployment of automated license plate readers (APLR) that will result in the collection of millions of records of innocent Virginians and people passing through the Commonwealth on our state highways.   The data that will be collected will be stored in a massive national database being built by a private vendor for at least 30 days which is 30 days too long.  And, the legislation allows sharing of any and all of the collected data for “law enforcement purposes” without any real restraints.   

Once these cameras are hooked up on state roads all over Virginia there will be nothing to keep State Police from monitoring the movements of innocent people, “just in case” as a part of an “active law enforcement investigation,” and using the AI built into the software to do predictive policing. 

There will be nothing to stop State Police and local law enforcement from choosing to monitor for “law enforcement purposes” 30 days of collected data points for everyone who has ever been charged with a crime or has more than a certain number of points on their license. 

This technology has the potential to become just another tool that drives disparate policing of people of color (along with ShotSpotter, Stingrays, red light and speed cameras). 

Plus, the millions and millions of records in the files will be subject to data breaches, even intentional, with only a $1000 civil penalty (enforced by whom?) and no criminal penalty for intentional misuse.

It is impossible to overstate how bad this legislation is. 

Here's what the folks at the National ACLU have to say about this national initiative:

“Unlike a targeted ALPR camera system that is designed to take pictures of license plates, check the plates against local hot lists, and then flush the data if there’s no hit, Flock is building a giant camera network that records people’s comings and goings across the nation, and then makes that data available for search by any of its law enforcement customers. Such a system provides even small-town sheriffs access to a sweeping and powerful mass-surveillance tool, and allows big actors like federal agencies and large urban police departments to access the comings and goings of vehicles in even the smallest of towns. And every new customer that buys and installs the company’s cameras extends Flock’s network, contributing to the creation of a centralized mass surveillance system of Orwellian scope. Motorola Solutions, a competitor to Flock, is pursuing a similar business model.”  

The fact is that, in other states, local police are encouraging homeowners associations and others to spend $2500 per camera to install these devices on private property and link them to their policing system. The data is added to the national database. The private vendors then gift the tech to the police departments (1 for every 5 installed by private property owners) to incentivize its deployment.

 And, if this doesn’t sound like “minority report” … I don’t know what does:

“Flock has captured photos of more than a billion vehicles in more than 1,200 U.S. cities across 40 states, and installed cameras in thousands of homeowners’ associations. The company raised $150 million in a July funding round led by Andreessen Horowitz, with a stated goal of reducing crime in America by 25% over the next three years by deterring and solving cases. There are no plans to rest at 25% — Flock’s mission is to“eliminate crime” entirely.” 

Moreover, even though Flock, the vendor proposing and lobbying for this legislation in Virginia, says its surveillance goal is to eliminate crime, there is little evidence that this kind of surveillance actually does reduce crime.  

And Electronic Future Foundation documents routine false hits that have led to police stops of Black people:

 “Like all machines, ALPRs make mistakes. And these mistakes can endanger people’s lives and physical safety. For example, an ALPR might erroneously conclude that a passing car’s license plate matches the plate of a car on a hotlist of stolen cars. This can lead police to stop the car and detain the motorists. As we know, these encounters can turn violent or even deadly, especially if those cars misidentified are being driven by Black motorists.  This isn’t a hypothetical scenario. Just last month, a false alert from an ALPR led police to stop a Black family, point guns at them, and force them to lie on their bellies in a parking lot—including their children, aged six and eight. Tragically, this is not the first time that police have aimed a gun at a Black motorist because of a false ALPR hit.”

The ACLU’s Report on Flock's public/private deployment makes clear that, although the legislation under consideration in Virginia seeks to limit the kind of data that it will authorize to be collected, the fact is that the Flock system collects more information than the legislation would now allow to be used. And, the reality is that a simple amendment to the legislation in the future could easily open up use of other data Flock tech would be collecting automatically if the current legislation passes:

"Already, the photos taken by Flock’s ALPR cameras capture more than just license plates; the photos are used to create what the company calls a searchable “Vehicle Fingerprint.” Using a “proprietary machine learning algorithm,” the company says, it gathers “vehicle make, type, color, license plate, state of the license plate, covered plates, missing plates, and unique features like roof racks and bumper stickers.” Presumably that would allow searches for all vehicles that include a particular political bumper sticker, enabling people to be targeted based on the exercise of their First Amendment-protected free expression rights."

ACLU-VA weighed in against the legislation this week:

"Automatic license plate readers have the potential to create permanent records of virtually everywhere any of us has driven, radically transforming the consequences of leaving home to pursue private life and opening up many opportunities for abuse. The tracking of people’s location constitutes a significant invasion of privacy, which can reveal many things about their lives, such as what friends, doctors, protests, political events, or churches a person may visit. In our society, it is a core principle that the government does not invade people’s privacy and collect information about citizens’ innocent activities just in case they do something wrong."

Finally, the Governor's Department of Planning and Budget says that this legislation has no "fiscal impact":

8. Fiscal Implications: It is anticipated that the proposed legislation will not have a fiscal impact on the Virginia Department of Transportation (VDOT) or the Department of State Police (VSP). Any potential fiscal impact on local law enforcement agencies cannot be determined at this time.

it is a mystery how there can be no fiscal impact from implementing a statewide system of license plate readers with associated databases and software AI unless Flock is paying for all of the equipment in this budget cycle expecting a windfall from necessary future payments for systems maintenance and data storage.  

There will be millions of pictures of license plates that have to be stored for 30 days (or longer than that based on a need for a “law enforcement investigation”).  

There will have to be some personnel assigned to ensure deletion of the data on a rolling basis every 30 days and ongoing monitoring to be sure that the limitations in the legislation are observed. 

How is this going to be "free"?

This feels like what happened with body cams.  The camera companies made the body cameras available to law enforcement for free or at heavily discounted prices, knowing that they would make a lot of money on data storage and manipulation once videos started uploading. The cost of body cam deployment has now become a real issue as will the cost of this new statewide system going forward. 

Flock is currently valued at $3.5 billion.  No way that valuation would exist if there wasn’t a big return expected on Flock’s loss leader investments in these massive national data collection and storage systems.

Virginia does not need to pass legislation that would further line Flock's coffers and do so by making a massive incursion into our ability to travel about the Commonwealth without being stalked by big brother government surveillance.