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Date of Meeting: 3 January 2008

                                                                             

 

LOUDOUN COUNTY BOARD OF SUPERVISORS

ACTION ITEM

BOARD MEMBER INITIATIVE

#13.

SUBJECT: Transparency in County Government, Phases II and III

INITIATED BY: Jim Burton

ELECTION DISTRICT: Countywide

 

BACKGROUND:

Phase I

In January 2007 reports of FBI investigations into the activities of various County officials shook public confidence in their local government. This exacerbated already existing public concerns regarding the significant levels of campaign contributions from individuals and organizations with matters before the Board, the appointment of individuals with fiduciary interests to Board advisory committees and commissions, and an overall lack of transparency in the land use decision-making process,. Between 2006 and 2007, both jointly and individually, Supervisors Jim Burton, Sally Kurtz, Lori Waters, and Chairman Scott York, attempted to address these issues (Phase I). Their efforts met with mixed success as detailed in Attachment 1.

In summary, these efforts resulted in

  • improved presentation of data for public input and Board decision-making;
  • more stringent disclosure of interested parties in legislative land use applications;
  • the reinstatement of meeting disclosure forms;
  • the reinstatement of a formal ethics and code of conduct policy;
  • a public discussion of campaign contribution and conflict of interest law; and
  • continued efforts to limit last-minute changes to business before the Board.

However, all of the policies adopted by the Loudoun County Board of Supervisors between 2006 and 2007 are at the discretion of the Board. The Code of Virginia does not require their enactment. Further, the policies adopted by the Loudoun County Board are voluntary. They do not carry the weight of law. Compliance with those policies is at the discretion of the individual official and enforcement is at the discretion of a majority of the Board. This initiative proposes to address the issues of ethics and transparency of government decision-making along two concurrent paths: (1) adopt additional Board policies to those already in place and (2) propose enabling legislation for consideration by the General Assembly.

Phase II – Additional County Policies

Following is a summary of suggestions for Phase II. Details can be found in Attachment 3.

(1)     Adopt a revised Prudence in Political Contributions policy as official board policy.
(2)     Revise the Loudoun County Board of Supervisors’ Land Development Guidelines to limit last- minute changes to land use applications.
(3)     Require all appointees to citizen committees, commissions and boards to complete annual disclosure forms as authorized by
          §2.2-3115 and §2.2-3118 of the Code of Virginia.
(4)     Require all Loudoun County staff with public decision-making authority, including but not limited to administrative land use
          applications, permits, procurement, property assessment (both real and personal), and tax relief programs to complete annual
          disclosure forms as authorized by  §2.2-3115 and §2.2-3117 of the Code of Virginia.
(5)     Enact a County ordinance as authorized by §15.2-515 of the Code of Virginia, placing restrictions on the activities of former
          County officers and employees.
(6)    Revise the procedures for public hearings.
(7)    Require timely and full availability of agenda item documentation to the public. 

Phase III – Proposals for Enabling Legislation

Following is a summary of suggestions for Phase III. Details can be found in Attachment 4.

(1)     Amend Sections 2.2-3117 and 2.2-3118 to require the filing of Statements of Economic Interest by County Employees with public
           decision-making authority, including but not limited to administrative land use applications, permits, procurement, property assessment
          (both real and personal), and tax relief programs and all Appointees to citizen committees, commissions and boards.

(2)     Modify the information required on the Statements of Economic Interest filed annually by Elected Officials and Certain Employees and
          Appointees:

           a.    Amend Sections 2.2-3117 and 2.2-3118 to require disclosure of ownership of all real estate;
           b.    Amend Section 2.2-3117 to require disclosure of all transactions with any person(s) or corporate entity having business before the
                  County;

           c.    Amend Sections 2.2-3115 and 2.2-3117 to require more frequent disclosure of gifts and that such disclosures be made part of the
                  public record for relevant agenda items;

           d.    Amend Section 2.2-3118 to require filers to report gifts and entertainment and that such reports be made part of the public record
                 of relevant agenda items.

(3)     Amend Section 2.2-3112(3) to disallow participation in a transaction when a party to the transaction is a client of the official’s firm whether
          or not the official provides services to the client.

(4)     Require a public record of all meetings between applicants and government officials.
(5)     Eliminate the “Revolving Door.”
(6)     Require all interest groups at the local level to register as lobbyists and to report funding sources.
(7)     Require Full Disclosure of Real Parties in Interest on All Applications – Legislative and Administrative.
(8)     Require that all meetings of the Board of Supervisors, its standing committees, its advisory committees, commissions, and task forces,
          and any appointed Board with decision-making authority (e.g., Board of Zoning Appeals, Board of Equalization, Historic District Review
          Committee) be taped and/or webcast and archived for a period of 10 years.

(9)    Amend Section 24.2-946.1 to require electronic submission of local Campaign Finance Reports into a Board of Elections managed
         database:

          a.    Amend Section 24.2-947.6 to require electronic donation updates on a rolling basis, 48 hours after receipt;
          b.    Provide a means for enforcing Section 24.2-949.5.
(10)   Restrict candidates from accepting contributions for a certain length of time before and after a vote on an issue that would benefit the
          contributor or his/her employer.

(11)   Require disclosure and recusal where elected officials have accepted campaign contributions from applicants and/or their employees
          and investors within the period restricted by number 9).

(12)   Consider placing limits on annual contributions by individuals, employees, proprietorships, partnerships and corporations similar to
           those in place at the federal level.

(13)   Amend Section 2.2-3126 to either require local Commonwealth’s Attorneys to pass on consideration and investigation of all inquiries
           into conflicts of interest to a randomly selected Commonwealth’s Attorney in another jurisdiction or to assign all such inquiries to the
          Attorney General or some other State office.

 

DRAFT MOTION:

I move that the policies listed under Phase 2 as detailed in Attachment 3 be added to the Loudoun County Board of Supervisors’ Code of Ethics and Standards of Conduct, Loudoun County Board of Supervisors’ Land Development Guidelines, and the Loudoun County Employee Handbook and Guidelines.

I further move that the proposals listed in Phase 3 and detailed in Attachment 4 be presented to the Loudoun County delegation to the General Assembly with a request that the delegation sponsor appropriate legislation.

ATTACHMENTS:        Attachment 1: Transparency in County Government, Phase I Summary

Attachment 2: Loudoun County Board of Supervisors’ Code of Ethics and Standards of Conduct as Adopted 6 February 2007; Loudoun County Board of Supervisors’ Land Development Guidelines and Meeting Disclosure Form as Adopted 6 February 2007

Attachment 3: Transparency in County Government, Phase II

Attachment 4: Transparency in County Government, Phase III[1]

 

Staff Contact(s):        Mary Bathory Vidaver, x0210


Transparency in County Government, Phase I

 

Standardization of Land Use Staff Reports

Meeting Date:

17 October 2006

Initiator(s):

Burton

Area of Impact:

Transparency of Land Use Process

Intent:

Simplify and consolidate relevant information regarding Land Use Applications for public review and ensure the Board receives full information prior to any decision on the application by:

  • Eliminating individual variation in data presented by staff in Land Use Action Items;
  • Standardizing the data presented by staff in Land Use Action Items; and
  • Applying monetary values to all proffers

Motion:  

I move that the Board of Supervisors direct County Staff to standardize the information provided in their Action Item Reports for Land Use Items. I further move that such reports contain the following information:  

  • number of residential units by-right;
  • number of residential units requested in the application broken out by type of housing units (SFD, SFA, MFU);
  • expected capital contribution;
  • the monetary value of transportation proffers and the point in time when they are to be met;
  • the monetary value of proffered capital contributions, broken out by type (cash, land, construction, etc.)
  • the number of students generated by the application, the schools to which they will be assigned and the current capacity of that school less capacity assigned to previous rezonings
  • the number of units currently in the relevant planning sub-area pipeline;
  • the difference between the total build-out planned for the sub-area and current units in the sub-area pipeline.

Outcome:

The Board voted 9-0 to direct County staff to standardize the information provided in their Action Item Reports for Land Use Items as listed above, to also include by-right build-out calculations using the same components, and to forward their revisions to the Transportation / Land Use Committee for review prior to implementation.


Disclosure of Real Parties in Interest

Meeting Date:

8 November 2006

Initiator(s):

Burton

Area of Impact:

Transparency of Land Use Process

Campaign Contributions / Conflict of Interest

Intent:

Amend the County Zoning Ordinances to establish a program of full disclosure in land use applications similar to one in use by Fairfax County that makes public the names of all individuals participating in a particular rezoning, special exception, or special permit / variance application, thereby addressing issues of

  • campaign fund raising; and
  • the enforcement of conflict of interest laws

Motion:  

WHEREAS, the Board of Supervisors wishes to initiate amendments to the Loudoun County Zoning Ordinance to require that any applicant for a zoning map amendment, special exception or variance make full disclosure of the real parties in interest; and

WHEREAS, the authority for these amendments is found in §15.2-2289 of the Code of Virginia; now, therefore,

BE IT RESOLVED, that the Board of Supervisors states its intention to amend the Loudoun County Zoning Ordinance to adopt provisions requiring the disclosure of the real parties in interest as part of any application for a zoning map amendment, special exception or variance; and

BE IT FURTHER RESOLVED that these amendments are in furtherance of the public necessity, convenience, general welfare, and good zoning practice; and

BE IT FURTHER RESOLVED that this item be referred to the Planning Commission for preparation of the ordinance amendments, notice and hearing, and a recommendation to the Board of Supervisors.

Outcome:

The Board voted 6-1-2 (Supervisor Delgaudio No; Supervisors Kurtz and Staton absent) in favour of the motion. In addition, Supervisor Tulloch offered a friendly amendment that the speaker sign up sheets be revised to provide additional disclosures by speakers. Supervisor Burton accepted Supervisor Tulloch’s amendment and it was included as part of the motion the Board passed.

Staff and the Planning Commission incorporated this initiative into the Planning Commission’s review of the Zoning Ordinances.


Disclosure of Real Parties in Interest and Public Speaker Sign Up Sheet Revisions - Update

Meeting Date:

6 February 2007

Initiator(s):

Burton

Area of Impact:

Transparency of Land Use Process

Campaign Contributions / Conflict of Interest

Intent:

Amend County Land Use policies to immediately establish a program of full disclosure in land use applications similar to one in use by Fairfax County that makes public all individuals participating in a particular rezoning, special exception, or special permit / variance application, thereby addressing issues of

  • campaign fund raising; and
  • the enforcement of conflict of interest laws

Revise public speaker sign-up sheets to include information regarding organizational affiliation.

Motion:  

I move that the Board of Supervisors direct staff to immediately amend the affidavits currently in use by applicants to make them identical to those in use by Fairfax County except for the following two changes:

  • On page Two (2) of each affidavit under “Description of Corporation” change “10” to “100;”
  • On page Five (5) of each affidavit allow the voluntary disclosure of campaign contributions.

I further move that such affidavits be reaffirmed before each public hearing on the application and at the time of any vote on the application and that the updated affidavits be included in the relevant Planning Commission or Board packet.

I further move that this policy change should apply to all applications currently in the pipeline and to all applications received thereafter. Revised affidavits for applications currently in the pipeline can be submitted prior to the next appearance before either the Planning Commission or the Board of Supervisors, whichever comes first.

I further move that the appropriate revisions to the speaker sign-in sheets be presented to the February Transportation / Land Use Committee so that the Board can enact the revisions at its first meeting in March.

Outcome:

The Board passed the motion 7-1-1 (Supervisor Delgaudio No; Supervisor Clem absent).  

Updated affidavits have been provided to the Board in their packets, placed in application files, but not typically included in the public Agenda files on the fifth floor or the Agenda materials posted on the web.

At its 26 February 2007 meeting the Transportation / Land Use Committee agreed that the speaker sign-up slips currently in use by the County requests adequate information and did not require revision.

 

Code of Ethics and Standards of Conduct

Meeting Date:

6 February 2007

Initiator(s):

York, Waters (Co-Sponsored by Burton, Clem, and Kurtz)

Area of Impact:

Ethics and Standards of Conduct

Intent:

To rebuild public trust and confidence by adopting ethics and disclosure measures that raise the bar to a higher level above what is required by State law, including formal adoption of the Revised “Code of Ethics and Standards of Conduct” presented by Supervisor Jim Burton and signed by five members of the Board on 25 March 2005. A copy of the adopted Code is found in Attachment 2.

Motion:  

I move that the Loudoun County Board of Supervisors adopt the following actions regarding the “Code of Ethics and Standards of Conduct” outlined below.

  1. The Board of Supervisors should formally vote on readoption of the “Code of Ethics and Standards of Conduct for Members of the Board of Supervisors;”
  2. Failure for any Board Member to sign the Code shall result in the Member forfeiting one-half of his/her district/chair funds;
  3. Complaints about violations shall be brought publicly before the full Board for review, and penalties for violations may be rendered, including but not limited to loss of district funds, removal of leadership or committee assignments, censure, public written or oral apology, etc.;
  4. The Code shall be formally attached to the Board of Supervisors’ Rules of Order.

I further move that a copy of this Code be sent to the Planning Commission and other appointed committees and commissions and require those bodies to adopt the “Code of Ethics and Standards of Conduct” as well.

Outcome:

In a Committee of the Whole Worksession, the Board deleted Item 2 and removed the phrase “loss of district funds” from Item 3. It then passed the amended motion 6-2-1 (Supervisors Delgaudio and Snow No; Supervisor Clem absent).


Changes to Board Land Use Policies

Meeting Date:

6 February 2007

Initiator(s):

York, Waters (Co-Sponsored by Burton, Clem, and Kurtz)

Area of Impact:

Transparency of Land Use Process

Intent:

To rebuild public trust and confidence by adopting ethics and disclosure measures that raise the bar to a higher level above what is required by State law, including formal adoption of the amended October 21, 1998 Land Development Guidelines as official Board policy, including written and verbal disclosure of meetings with applicants. A copy of the adopted guidelines, including the Meeting Disclosure Form, is found in Attachment 2.

Motion:  

I move that the Land Development Guidelines adopted on October 21, 1998, as amended on February 6, 2007 become official Board policy and be entered into the Loudoun County Board of Supervisors’ Rules of Order.

I further moved a copy of this measure be sent to the Planning Commission to require this body to adopt it as well.

Outcome:

The Board passed the motion 5-2-1-1 (Supervisors Delgaudio and Staton No; Supervisor Snow abstained; Supervisor Clem absent). The item required verbal and written disclosure of meetings with land use applicants.

 

Taping of Executive Sessions

Meeting Date:

6 February 2007

Initiator(s):

York, Waters (Co-Sponsored by Burton, Clem, and Kurtz)

Area of Impact:

Ethics

Transparency of Government

Intent:

To rebuild public trust and confidence by adopting ethics and disclosure measures that raise the bar to a higher level above what is required by State law, including adoption of a policy that all discussions held in Closed/Executive Sessions with the exception of litigation shall be audio recorded and that the records be kept as privileged by the County Attorney.

Motion:  

I move that the Loudoun County Board of Supervisors adopt a policy that all discussions held in Closed/Executive Sessions with the exception of litigation shall be audio recorded and that the records be kept as privileged by the County Attorney.

Outcome:

The Board tabled the motion until the next meeting to give the County Attorney time to research the initiative. Based on comments from the County Attorney, the motion was withdrawn.


Prudence in Political Contributions

Meeting Date:

20 February 2007

Initiator(s):

York, Waters (Co-Sponsored by Burton, Clem, and Kurtz)

Area of Impact:

Ethics

Transparency of Government

Campaign Contributions / Conflict of Interest

Intent:

To rebuild public trust and confidence by avoiding any appearances of impropriety and bias towards those who contribute to a Board member’s campaign.

Motion:  

I move that the Loudoun County Board of Supervisors place in its 2008 legislative packet a request to amend campaign finance laws to prohibit applicants of land use changes, whether persons, groups, partnerships or corporate entities, from contributing to the campaign of a sitting Supervisor during the period of time an application has been submitted to the County to six months following action by the Board of Supervisors.

Outcome:

The Board voted 5-4 (Supervisors Delgaudio, Snow, Staton, Clem No) in favour of the motion. In addition, Supervisor Tulloch offered a friendly amendment that the phrase “with active applications or special interest groups taking a position on those applications” be inserted in the first sentence between the words “changes,” and “whether”. Chairman York accepted Supervisor Tulloch’s amendment and it was included as part of the motion the Board passed.


Change to the Legislative Land Use Process: Delivery of Materials

Meeting Date:

20 February 2007

Initiator(s):

Kurtz

Area of Impact:

Transparency of Land Use Process

Intent:

To enable thorough analysis of the revisions, sufficient staff and citizen input, and thoughtful decisions by requiring that all pertinent materials to a land use application be made available seven days before either a Public Hearing or any formal or ad hoc Board and Planning Commission committee meeting occurs.

Motion:  

I move that that the Board of Supervisors amend the Land Development Policies, G. Phases of the Application Process and the Role of Public Officials, 3. Public Review Phase to add:

“e. All Proffers and additional information pertinent to any land use application shall be delivered to public officials seven days before either a Public Hearing or any formal or ad hoc Board and Planning Commission committee meeting occurs.”

Outcome:

The Board voted 8-0-1 (Chairman York Absent) to send the item to the Transportation / Land Use Committee for further review.

At its 26 February 2007 meeting the Transportation / Land Use Committee reviewed the proposal and instead requested that staff prepare an item for the March Transportation/Land Use Committee on the feasibility of televising all meetings of the Board of Supervisors, including Committees of the Whole and standing committees, in an effort to keep the public informed of all Board proceedings.

At its 26 February 2007 meeting the Transportation / Land Use Committee voted 4-0-1 (Supervisor Kurtz absent) to recommend that the Board place audio recordings of the standing committee meetings on the Internet as a more cost-conscious alternative to televising all meetings of the Board of Supervisors, including Committees of the Whole and standing committees.

At its 1 May 2007 meeting the Board voted 9-0 to place audio recordings of the Board’s standing committee meetings on the Internet.


Change to the Legislative Land Use Process: 30-Day Freeze on Application Revisions

Meeting Date:

18 September 2007

Initiator(s):

Burton

Area of Impact:

Transparency of Land Use Process

Intent:

Institute a thirty day freeze on changes to legislative land use applications prior to a vote on the application by the Board

  • To enable thorough analysis of the revisions, sufficient staff and citizen input, a thoughtful final decision by the Board;
  • To prevent last ditch attempts on the part of applicants to gain the support of a fifth supervisor; and
  • To ensure changes and alterations are comprehensively considered and actually improve the proposal.

Motion:  

I move that the Board of Supervisors institute a freeze as described above on changes to legislative land use applications such that no changes may be made to an application thirty days prior to the final vote on that application by the Board.

Outcome:

Supervisor Waters made a substitute motion that any changes to applications should be included in the normally scheduled delivery of business meeting packets and applications with any changes after delivery of packets should be deferred at the next meeting. This motion was amended to include upholding the Board of Supervisors’ Rules of Order regarding the placing of items on the Board agenda. The Board passed the amended motion 9-0.



Transparency in County Government, Phase II

 

 

Adopt a “Prudence in Political Contributions” Policy

Proposal:

Include as official Board policy in the Loudoun County Board of Supervisors’ Code of Ethics and Standards of Conduct and/or Land Development Guidelines a prohibition on the acceptance by members of the Board of campaign contributions from persons, groups, partnerships or corporate entities with matters before the Board during the period of time such matter has been submitted to the county to six months following action by the Board of Supervisors on the matter.

Intent:

To rebuild public trust and confidence by avoiding any appearances of impropriety and bias towards those who contribute to a Board member’s campaign.

 

Limit Last-Minute Changes to Land Use Applications

Proposal:

  1. Institute a thirty day freeze on changes to legislative land use applications prior to a vote on the application by the Board to enable thorough staff review of the impact of any changes.
  2. Amend the Loudoun County Board of Supervisors’ Land Development Guidelines, G. Phases of the Application Process and the Role of Public Officials, 3. Public Review Phase to add: “e. All Proffers and additional information pertinent to any land use application shall be delivered to public officials seven days before either a Public Hearing or any formal or ad hoc Board and Planning Commission committee meeting occurs.”

Intent:

To enable thorough analysis of the revisions, sufficient staff and citizen input, and thoughtful decisions.

Expand Disclosure Requirements to Include Appointees

Proposal:

Require all appointees to citizen committees, commissions and boards to complete annual disclosure forms as authorized by §2.2-3115 and §2.2-3118 of the Code of Virginia.

Intent:

Citizen appointees to various advisory boards, commissions, and committees often make direct decisions of economic impact (e.g., the Board of Equalization), make recommendations to the Board of Supervisors for expenditures of County funds (e.g., the Advisory Commission on Youth), or make recommendations to the Board of Supervisors to the County’s zoning ordinances and other regulations (e.g., the Ad Hoc Zoning Ordinance Review Committee, the Facilities Standards Manual Review Committee, the Route 50 Task Force). Given the importance of those decisions, the influence of their recommendations, and the appointment of industry representatives as issue experts, such appointees should be required to file a Statement of Economic Interest.


Expand Disclosure Requirements to Include Employees

Proposal:

Require all Loudoun County staff with public decision-making authority, including but not limited to administrative land use applications, permits, procurement, property assessment (both real and personal), and tax relief programs, to complete annual disclosure forms as authorized by §2.2-3115 and §2.2-3117 of the Code of Virginia.

Intent:

Many County employees at all levels of the organization make decisions with an economic impact: subdivision applications, well and wastewater permits, occupancy permits, etc.   Given the importance of these decisions, such employees should also be required to file a Statement of Economic Interest

Discourage the Expansion of a “Revolving Door”

Proposal:

Enact a County ordinance as authorized by §15.2-515 of the Code of Virginia, that prohibits County officers and employees, “for one year after their terms of office have ended or employment ceased, from providing personal and substantial assistance for remuneration of any kind to any party, in connection with any proceeding, application, case, contract, or other particular matter involving the county or an agency thereof, if that matter is one in which the former officer or employee participated personally and substantially as a county officer or employee through decision, approval, or recommendation.”

Intent:

To enhance citizens’ faith in their government by limiting the perception of conflicts of interest on the part of County officials and employees.

 

Revise Public Hearing Procedures

Proposal:

  1. Replace “day of-”comment sign-ups with either telephone and/or an electronic web-based sign-up capability.
  2. Employ random selection of speakers for an item or alternate speaker slots between those supporting and those opposing an item.
  3. Publically announce a speaker’s address of origin and any organizational affiliation or interest in an item along with the speaker’s name.

Intent:

To increase transparency in the public process.

 


Require Timely and Full Availability of Agenda Item Documentation to the Public

Proposal:

  1. All meeting item documentation (both paper versions and online versions) must be made available to the public no later than the Thursday prior to the Board meeting or public hearing.
  2. All meeting item documentation (including attachments) received by Board members in their packets for any item must be made available to the public in both paper format and electronically.
  3. Any item which fails to meet the requirements of either (1) or (2) will be deferred to the next Board business meeting.

Intent:

It is current Board policy to offer the public two avenues for reviewing agenda item materials prior to its business meetings: (1) paper copies of the agenda and each item are placed in a rolling file in the County Administration Copy Room; (2) electronic copies of the agenda and each item are posted on the County’s webpage.

Over the last four years the public have noted several issues with the implementation of this policy:

  • Neither the paper copies nor the electronic versions provide all of the relevant attachments to an item. For example, each land use application contains an affidavit of ownership and financial benefit. Such affidavits are part of the meeting materials received by the Board members, but are neither attached to the materials in the Copy Room nor posted with the materials online.
  • The agenda and items are not always available online in a timely fashion.
  • Agenda items are not always provided in either area for public review. For example, Agenda Item #18d on the 4 December 2007 was still not posted online even during the Board’s discussion of it that afternoon. While a paper copy of the item was available in the County Administration Copy Room, it did not include Attachment 1, the actual language on which the Board was voting. sAccording to the Board clerk, her office had not received an electronic version of the item from the Staff Contact.

The above policy changes would ensure that citizens receive sufficient access to all relevant documentation and opportunity for analysis of items before the Board.


Transparency in County Government, Phase III

Goals and Objectives

Reports of alleged corruption by elected and appointed officials in the Commonwealth of Virginia (most notably in Loudoun County) have shaken public confidence. Citizens wonder just whose interests their elected officials are protecting. Clearly, a reconsideration of current State and County regulations regarding conflicts of interest, transparency of decision-making, campaign financing, and modes of enforcement is needed.

The Loudoun Board of Supervisors, through efforts initiated by Supervisors Jim Burton, Sally Kurtz, Lori Waters, and Chairman Scott York, has made some attempts to address these issues through the adoption of more stringent disclosure of interested parties in legislative land use applications, the reinstatement of meeting disclosure forms, and the reinstatement of a formal ethics policy. While there is much more that can be done, much of it requires enabling legislation by the General Assembly.

It is often said that the best medicine is preventive. Thus, the situation that arose in Loudoun County can occur elsewhere in the Commonwealth because all of the policies adopted by the Loudoun County Board of Supervisors are at the discretion of the Board. The Code of Virginia does not require their enactment. Further, many of the policies adopted by the Loudoun County Board are voluntary. They do not carry the weight of law. Compliance with those policies is at the discretion of the individual official and enforcement is at the discretion of a majority of the Board. Again, this is because of the lack of enabling legislation provided by the General Assembly.

Rather than wait until the press reports the next scandal or the Department of Justice intervenes with another federal investigation, the following suggestions attempt to address current gaps in existing State legislation and to provide Counties throughout the Commonwealth with the means to prevent even the appearance of corruption proactively. It is an effort to protect elected officials, their appointees, and government workers from mistakes and to restore citizens’ respect for and trust in their government.

The suggestions are broken out into the following categories: conflict of interest rules, transparency of decision-making, campaign financing, and enforcement.

Conflict of Interest Rules

1)    Amend Section 2.2-3117 to require the filing of Statements of Economic Interest by all Appointees and any County Employees with decision-making authority for permits (e.g., health, occupancy) and applications (e.g., land use, solid waste) or who make decisions with any type of economic impact (e.g., acceptance into tax relief programs, real and personal property assessments).

Section 2.2-3115 of the Code of Virginia requires in Counties with populations greater than 3,500 that members of the Board of Supervisors file an annual statement of economic interest as described in Section 2.2-3117. It further requires that members of planning commissions, boards of zoning appeals, real estate assessors, and all county, city and town managers or executive officers make annual disclosures of all their interests in real estate located in the county, city or town in which they are elected, appointed, or employed, including “any business in which such persons own an interest, or from which income is received, if the primary purpose of the business is to own, develop or derive compensation through the sale, exchange or development of real estate.” It also authorizes the Board of Supervisors to require that any appointee file an annual statement of economic interest as described in Section 2.2-3118 or require that any employee file an annual statement of economic interest as described in Section 2.2-3117.

Citizen appointees to various advisory boards, commissions, and committees often make direct decisions of economic impact (e.g., the Board of Equalization), make recommendations to the Board of Supervisors for expenditures of County funds (e.g., the Advisory Commission on Youth), or make recommendations to the Board of Supervisors to the County’s zoning ordinances and other regulations (e.g., the Ad Hoc Zoning Ordinance Review Committee, the Facilities Standards Manual Review Committee, the Route 50 Task Force). Given the importance of those decisions, the influence of their recommendations, and the appointment of industry representatives as issue experts, such appointees should be required to file a Statement of Economic Interest. Such a decision should not be left to individual Boards of Supervisors who may have their own conflicts.

Likewise, many County and Town employees at all levels of the organization make decisions with direct economic impact: subdivision applications, well and wastewater permits, occupancy permits, real and personal property assessments, acceptance into tax relief programs, etc. Given the importance of these decisions, such employees should also be required to file a Statement of Economic Interest. Again, such a decision should not be left to individual Boards of Supervisors who may have their own conflicts of interest.

2)    Modify the information required on the Statements of Economic Interest filed annually by Elected Officials and Certain Employees and Appointees.

        a) Amend Sections 2.2-3117 and 2.2-3118 to require disclosure of ownership of all real estate.

Section 2.2-3115 of the Code of Virginia requires in Counties with populations greater than 3,500 that members of the Board of Supervisors file an annual statement of economic interest as described in Section 2.2-3117. It further requires that members of planning commissions, boards of zoning appeals, real estate assessors, and all county, city and town managers or executive officers make annual disclosures of all their interests in real estate located in the county, city or town in which they are elected, appointed, or employed, including “any business in which such persons own an interest, or from which income is received, if the primary purpose of the business is to own, develop or derive compensation through the sale, exchange or development of real estate.”

However, neither Sections 2.2-3115 nor 2.2-3117 nor Sections 2.2-3118 (for citizen appointees) require the filer to disclose any ownership of real estate outside of the County, City, or Town in which they are elected, appointed, or employed, unless that real estate is in a contiguous County, City, or Town. The rationale for that omission is most likely that the persons will only be making decisions with regards to land within the County, City, or Town. However, this fails to account for the fact that most applicants today are now regional, national, or even international in scope, and the potential exists for an elected official, appointee, or employee to have business dealings with an applicant outside of the County, City, or Town. Thus, Section 2.2-3117 should be amended to require disclosure of ownership of real estate outside of the County, City, or Town in which they are elected, appointed, or employed.

      b) Amend Section 2.2-3117 to require disclosure of all transactions with any person(s) or corporate entity having business before the County.

While Section 2.2-3117 requires disclosure of gifts, honorariums, business interests, and the furnishing of services, it does not require disclosure of any transactions in which the filer might have sold a good to a person or corporate entity having business before the County. While such a transaction may be entirely innocent, when reported by the press rather than the parties involved, it gives the wrong appearance to the citizenry.[1]

      c) Amend Sections 2.2-3115 and 2.2-3117 to require more frequent disclosure of gifts and that such disclosures be made part of the public record for relevant agenda items.

Currently, disclosure of gifts (including entertainment) only occurs once a year. However, decisions and recommendations by government officials, whether elected, appointed, or employed, occur year round. And, typically, gifts and entertainment (including meals) could occur at any time, but are more likely to occur at the time when decisions or recommendations are being made. Thus, it is important that knowledge of any such gifts and entertainment occurs in a timely fashion. Therefore, Sections 2.2-3115 and 2.2-3117 should be amended to require reporting of all gifts and meals within 30 days of occurrence, but minimally before any vote is taken or recommendation is made that would benefit the gift giver. Further, such reports should be made part of the public record in the agenda item.

     d) Amend Section 2.2-3118 to require filers to report gifts and entertainment and that such reports be made part of the public record of relevant agenda items.

Currently, citizen appointees required to file statements of economic interest as described in Section 2.2-3118 do not have to report gifts and entertainment. However, given the important roles many such appointees play in setting policy or making decisions with an economic interest, they are as likely as those who file under Section 2.2-3117 to receive gifts and offers of entertainment. Section 2.2-3118 should be amended to require filers to report gifts and entertainment. Further, recommendation c) should also apply to require reporting of all gifts and meals within 30 days of occurrence, but minimally before any vote is taken or recommendation is made that would benefit the gift giver. Finally, such reports should be made part of the public record in the agenda item.

3) Amend Section 2.2-3112(3) to disallow participation in a transaction when a party to the transaction is a client of the official’s firm whether or not the official provides services to the client.

Currently, Section 2.2-3112(3) allows an official to participate in a transaction involving a client of the official’s business so long as the official does not personally provide services to the client and the official publicly discloses the relationship. However, such an allowance ignores the fact that “rainmaking” and client development are oftentimes a part of a company’s individual performance evaluations with a direct impact on an individual’s promotion and bonus. Thus, whether the official serves the client directly or not, the official’s employer may give positive consideration to and remuneration for any decision which benefits the client. Whether or not such consideration and remuneration occurs, the public impression will be negative.[2] Thus, Section 2.2-3112(3) should be amended to disallow participation in a transaction when a party to the transaction is a client of the official’s firm whether the official provide services to the client or not.

4) Require a public record of all meetings between applicants and government officials.

The 1999-2003 Loudoun County Board of Supervisors required that Board members fill out a form whenever they met with parties with an application before the County. This form was distributed to each of the other members and entered into the public file of the application where it could be viewed by any interested citizen or the press. The current Board discontinued the practice until its meeting of 6 February 2006, when an ethics package initiated by Board Chairman Scott York and Supervisor Lori Waters was passed by the Board.[3]

This policy should be required of all meetings between applicants and government officials, whether elected, appointed, or employed.

5) Eliminate the “Revolving Door.”

The “revolving door” – wherein government employees shift to the private sector and then back again -- at the federal level has long been noted.   Less noted, is the existence of a revolving door at the local level in which local government officials are recruited by businesses on whose applications they have worked and then lobby their former colleagues on the business’ future applications. While many counties have policies that place some type of restriction on employees, there are rarely any types of similar restrictions on elected and appointed officials. Further, such restrictions on employees are not always enforced.

Such a revolving door can encourage government officials to relax their standards in hopes of more lucrative opportunities at a future date with the private sector. The use of former colleagues to lobby existing officials may also provide the private sector with access not available to individual citizens and the appearance of affording an unfair competitive advantage in the marketplace. In order to eliminate such perceptions, the State should require localities to set and enforce regulations that restrict elected officials and local government employees from accepting positions for two years after leaving government service with any entity which had business before them during their government service. Further such regulations should restrict elected officials and government employees from working or voting on applications by former employers in the private sector.

6) Require all interest groups to register as lobbyists and to report funding sources.

Section 2.2-419 defines a lobbyist as “(1) an individual who is employed and receives payments, or who contracts for economic consideration, including reimbursement for reasonable travel and living expenses, for the purpose of lobbying; (2) an individual who represents an organization, association, or other group for the purpose of lobbying; or (3) a local government employee who lobbies.”   It defines lobbying as “(1) influencing or attempting to influence executive or legislative action through oral or written communication with an executive or legislative official; or (2) solicitation of others to influence an executive or legislative official.”   Thus, many of the interest groups which participate in the public process at the local level can be classified as lobbyists involved in lobbying.

While some of these local lobbyists are very upfront about their efforts and their funding sources, many are not. Section 2.2-422 requires all lobbyists at the State level to register as a lobbyist with the Secretary of the Commonwealth providing the information designated in Section 2.2-423. This information includes the name, address, and nature of business of those whom the lobbyist represents.   Lobbyists are also required to submit an annual disclosure form, as described in Section 2.2-426, listing all gifts and entertainment expenses to state government officials as well as funds received for lobbying activities and the source of those funds. There are no such requirements at the local level. Clearly, such requirements need to be extended to the local level.


Transparency of Decision-Making

7) Require Full Disclosure of Real Parties in Interest on All Applications – Legislative and Administrative

On 8 November 2006 the Loudoun County Board of Supervisors supported an agenda item initiated by Supervisor Jim Burton to establish a program of full disclosure in land use applications similar to one in use by Fairfax County.[4] The Loudoun program proposed did make two changes to the Fairfax County program:

  1. On page Two (2) of each affidavit under “Description of Corporation” change “10” to “100.”
  2. On page Five (5) of each affidavit allow the voluntary disclosure of campaign contributions.

It also required that the affidavits be reaffirmed before each public hearing on the application and at the time of any vote on the application. Initially, it was the Board’s understanding that initiating the program would require a change in the County’s Zoning Ordinances and the Board’s vote on 8 November 2006 was to begin the amendment process. However, County staff later determined that they could effect the change immediately through a simple change in policy by the Board. This was done at the Board’s 6 February 2007 meeting.[5]

The enabling legislation under which this initiative was passed is Section 15.2-2289 of the Code of Virginia, which allows localities to “require any applicant for a special exception, or a special use permit, amendment to the zoning ordinance or variance to make complete disclosure of the equitable ownership of the real estate to be affected including, in the case of corporate ownership, the name of stockholders, officers and directors and in any case the names and addresses of all of the real parties of interest.” However, the legislation is discretionary – a County does not have to require such information – and it is limited to the four types of applications (all legislative) listed within. This creates two gaps in coverage.

The first gap leaves a County’s elected officials at risk for a situation similar to that which has in recent years occurred in Loudoun County in which elected officials inadvertently or intentionally vote on applications without publicly disclosing a conflict of interest or, if necessary, recusing themselves. And, it creates the potential for distrust among the citizenry. The second gap places County staff in a similar risky situation in which they inadvertently make decisions about applications which place them in violation of the law.

The clear solution is to (1) make such disclosure mandatory (2) for all applications, legislative and administrative. Recognizing, however, that not all Counties have the staff and activity level of applications necessary to justify such a requirement, implementation of the legislation might be reserved until a certain activity threshold is reached, either a certain number of applications in a particular time period or a certain number of units within a particular period of time.

8) Require that all meetings of the Board of Supervisors, its standing committees, its advisory committees, commissions, and task forces, and any appointed Board with decision-making authority (e.g., Board of Zoning Appeals, Board of Equalization, Historic District Review Committee) be taped and/or webcast and archived for a period of 10 years.

Campaign Financing

9) Amend Section 24.2-946.1 to require electronic submission of local Campaign Finance Reports into a Board of Elections managed database.

Currently, Section 24.2-946.1 requires local Boards of Election to accept campaign finance reports filed by computer or electronic means, but does not require such filing. It then requires that such filings be made public via the Internet. The Loudoun County Board of Elections posts all campaign finance reports on the County website. A quick look at those reports demonstrates that almost all of them have been prepared manually, scanned into an Adobe file by the Board of Elections, and then posted. Such a process is time-consuming, hard to download by citizens, and awkward to analyze. Requiring electronic submission into a Board of Elections managed database would enhance usability, increase transparency both before and after the election and ensure compliance.

      a) Amend Section 24.2-947.6 to require electronic donation updates on a rolling basis, 48 hours after receipt.

Traditionally, because campaign finance reports were prepared manually and submitted in hard copy, submission requirements were set periodically according to a timeline found in Section 24.2-947.6. Thus, controversial donations can be strategically timed and reported after the election. Replacement of a paper form with on-line submissions directly into a Board of Elections managed database enables campaigns to report donations as they are received. Such an approach minimizes the possibility of record-keeping error and provides faster, better information to interested citizens.

      b) Provide a means for enforcing Section 24.2-949.5.

Section 24.2-949.5 requires the submission of certain information regarding each donation to a campaign. A look at almost any campaign finance report from recent elections in Loudoun County demonstrates how frequently such information is omitted or only partially submitted. Replacement of a paper form with on-line submissions directly into a Board of Elections managed database would enable the Board of Elections to better enforce these information requirements by automatically flagging any submission that failed to meet those requirements in a report that could be used by both the Board of Elections and a Campaign Treasurer to fill in such information gaps.

10) Restrict candidates from accepting contributions for a certain length of time before and after a vote on an issue that would benefit the contributor or his/her employer.

The ethics package presented to the Loudoun County Board of Supervisors by Chairman Scott York and Supervisor Lori Waters contained a provision stating, “Campaign contributions shall not be accepted by a sitting member of the Board of Supervisors from any applicant, landowner, LLC, Trust, person, or group (hereby “applicant”) subject to the following criteria: (1) From the time an applicant has submitted an application or matter which will ultimately be decided by the Board of Supervisors and throughout the entire timeline of staff review, Planning Commission review and action, and Board review and action; and, (2) within six months of final action by the Board of Supervisors on an application or matter involving said applicant.”[6] A majority of the Board refused to pass this provision. The General Assembly should consider enacting legislation that would require such restrictions, but not limiting its applicability to land use issues and extending the restriction to individual employees and investors.

11) Require disclosure and recusal where elected officials have accepted campaign contributions from applicants and/or their employees and investors within the period restricted by number 10).

12) Consider placing limits on annual contributions by individuals, employees, proprietorships, partnerships and corporations similar to those in place at the federal level.

Enforcement

13) Amend Section 2.2-3126 to either require local Commonwealth’s Attorneys to pass on consideration and investigation of all inquiries into conflicts of interest to a randomly selected Commonwealth’s Attorney in another jurisdiction or to assign all such inquiries to the Attorney General or some other State office.

Section 2.2-3126 places investigation and enforcement of violations of the Conflict of Interest Act by local government officials firmly in the hands of the local Commonwealth’s Attorney. However, the Commonwealth’s Attorney is an elected official and, as such, may have received support from those who s/he is asked to investigate. This has been the experience in Loudoun County where the Commonwealth’s Attorney has selectively chosen which inquiries he will pursue, the decisions he renders, and at what stage in the investigation he will pass on the investigation to another Commonwealth’s Attorney. Based on a letter received by Supervisor Jim Burton from the Attorney General’s office, if the Commonwealth’s Attorney chooses not to pursue an investigation, there is no other recourse within the Commonwealth. Thus, it seems clear that Section 2.2-3126 needs to be amended in such a way that all inquiries are pursued by an independent third party. This can be done either by requiring the local Commonwealth’s Attorney to pass on consideration and investigation of inquiries to a Commonwealth’s Attorney from another jurisdiction, randomly selected from among all sitting Commonwealth’s Attorneys, or by assigning all such inquiries to the Attorney General’s Office or some other State organization.

Prepared by Mary M. Bathory Vidaver.


[1] For example, the situation reported by The Washington Post with regards to Bruce Tulloch’s sale of watercraft to developer Hobie Mitchel.

[2] This would address the public concerns raised, for example, by Bruce Tulloch’s voting on items which benefited clients of his employer, Sodexho, or Steve Snow voting on items which benefit clients of his employer, Dietze Construction.

[3] See Board Meeting Agenda, 6 February 2007, Item #12, which contains a copy of the form used.

[4] See Board Meeting Agenda, 8 November 2006, Item #7 . The Attachment (also posted online) includes copies of the forms in use by Fairfax County, the relevant text of the County’s current Zoning Ordinances, and the text of the enabling legislation (Section 15.2-2289).

[5] See Board Meeting Agenda, 6 February 2007, Item #13 .

[6] See Board Meeting Agenda, 6 February 2007, Item #12, Attachment 4.



[1] As proposed by Lina Burton and prepared by Mary M. Bathory Vidaver in conjunction with the Loudoun County League of Women Voters.