Opinion Number
10-082
Tax Type
General Provisions
Description
Appropriations Act/Recently enacted federal legislation
Topic
Federal Conformity
Prohibited Activity
Taxpayers
Date Issued
10-01-2010
October 1, 2010



The Honorable Robert G. Marshall
Member, House of Delegates
Post Office Box 421
Manassas, Virginia 20108-0421

Dear Delegate Marshall:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented


You ask three interrelated questions concerning recently enacted federal legislation designed, in part, to maintain employment in the education field. You first inquire whether the Governor lawfully can enter into an agreement with the President of the United States, or his cabinet secretary, concerning a minimum level of funding for education. Second, you ask whether federal funds can be deposited in the State treasury and disbursed to localities without an Appropriations Act by the General Assembly. Finally, you ask whether the Governor can accept such funds when no appropriations act authorizes the receipt of such funds.

Response


It is my opinion that an appropriations act is required for the expenditure of revenues of the Commonwealth, including grant funds from the United States government. Where, as here, the General Assembly has provided for the appropriation of such funds, the Governor lawfully may disburse such funds. It is further my opinion that it is a factual question in this instance whether the Governor may provide the "assurance" required by federal law concerning 2011 spending, because the General Assembly has enacted the 2011 budget. Whether the Governor lawfully can accept such funding in the future by providing the required "assurance" of funding levels in subsequent years depends upon whether such a pledge represents a political commitment by the Governor or a legal pledge purporting to bind the General Assembly. The Governor may provide a political pledge to use his best efforts to secure a particular level of funding. The Governor may not, acting on his own, bind the General Assembly to provide future spending.

Background


The United States Congress has enacted a measure designed to provide funds to assist states with their education programs.1 The bill provides that "the Secretary shall not allocate funds to a State ..unless the Governor ... provides an assurance to the Secretary that ... for State fiscal year 2011" the State will maintain education funding levels at not less than the level of support for education, for "state fiscal year 2009." 2

                  • Applicable Law and Discussion


The Constitution of Virginia contemplates an extensive role for the Governor in the budget process,3 Ultimate authority over the budget, however, is vested with the General Assembly. The Constitution provides that
    • [a]ll taxes, licenses, and other revenues of the Commonwealth shall be collected by its proper officers and paid into the State treasury. No money shall be paid out of the State treasury except in pursuance of appropriations made by law; and no such appropriation shall be made which is payable more than two years and six months after the end of the session of the General Assembly at which the law is enacted authorizing the same. 141

The Constitution further provides that "[n]o bill which . . . makes any appropriation of public . . . money . . . shall be passed except by the affirmative vote of a majority of all the members elected to each house, the name of each member voting and how he voted to be recorded in the journal."5

Based on the plain language and historical application of the term "revenues," funds granted by the United States to Virginia would constitute "revenues of the Commonwealth."6 Therefore, grants received pursuant to this recent federal enactment must be the subject of an appropriation by the General Assembly.

The General Assembly historically has anticipated that certain funds unexpectedly may be received by the Commonwealth. The most recent budget bill specifies in § 4-104(;0(3) that "the Director, Department of Planning and Budget, is hereby authorized to increase the appropriations to any state agency by the amount of the proceeds of donations, gifts, grants or other non-general. funds paid into the state treasury in excess of such appropriations during a fiscal year," provided certain strictures are followed. Nothing prevents a state agency, in turn, from disbursing those monies to localities. One area expressly contemplated in the budget bill is "participation in a federal or sponsored program."' In this instance, the General Assembly of Virginia has made such an appropriation and, therefore, the Governor lawfully may accept and disburse the funds from the United States.

Finally, you inquire whether the Governor can provide the "assurance" the federal law requires. The federal enactment calls for the Governor to "provide an assurance to the Secretary" that for State fiscal year 2011 the State will preserve funding at 2009 levels.8 In this instance, the 2011 budget has been appropriated by the General Assembly. Therefore, it becomes a factual question whether the governor can provide the required assurance. For many years, Attorneys General have concluded that § 2.2-505, the authorizing statute for official opinions of the Attorney General, does not contemplate that such opinions be rendered on matters requiring factual determinations, as opposed to matters interpreting questions of law. 9

I note that, independently of the facts of this case, whether the Governor can provide an "assurance" of future funding levels depends upon what the assurance requires. The Governor cannot by making such an "assurance" bind the legislature, a separate branch of Government that is given ultimate authority over the budget. To the extent such an "assurance" constitutes a political rather than a legal pledge by the Governor to engage himself to make his best efforts to maintain education spending at a certain level, the Governor is free to make such a political commitment.

                      • Conclusion


Accordingly, it is my opinion that an appropriations act is required for the expenditure of revenues of the Commonwealth, including grant funds from the United States government. Where, as here, the General Assembly has provided for the appropriation of such funds, the Governor lawfully may disburse such funds. It is further my opinion that it is a factual question in this instance whether the Governor may provide the "assurance" required by federal law concerning 2011 spending, because the General Assembly has enacted the 2011 budget. Whether the Governor lawfully can, in the future, provide an "assurance" of funding levels in subsequent years depends upon whether such a pledge represents a political commitment by the Governor or a legal pledge purporting to band the General Assembly. The Governor may provide a political pledge to use his best efforts to secure a. particular level of funding. The Governor may not, acting on his own, bind the General Assembly to provide future spending.
    • With warmest regards, I am
                      • Very truly yours,


                        Kenneth T Cuccinelli, II
                        Attorney General
1 FAA Air Transportation Modernization & Safety Improvement Act, Pub. L. No. 111-226, :124 Stat. 2389, § 101 (2010) ("Education Jobs Fund").
2 Id. at § 10 1(10)(a).
3.See VA. CONST. art. IV, § 6 (General Assembly to reconvene to consider Governor's budgetary amendments); VA. CONST. ART. V, § 6(d) (providing the Governor with a line-item budgetary veto).
4 VA. CONST. art. X, § 7.
5 VA. CONST. art. IV, § 11.
6 I could not locate Virginia case law defining the term "revenues." Cases from other states, however, support a broad conception of the term. See Lance v. McGreevey, 853 A.2d 856, 860 (N.J. 2004) (per curiam); Comm. for Educ. Equal. v. Missouri, 967 S. W.2d 62, 66 (Mo. 1998).
7 2010 Va. Acts. ch. 872 § 4-104(a)(5). Although your inquiry is not directed at this aspect of the federal legislation, the bill also provides for additional federal funding with respect to Medicaid. See FAA Air Transp. Modernization & Safety Improvement Act, Pub. L. No. 111-226, 124 Stat. 2389, § 201. The General Assembly anticipated this contingency and provided for it in the budget. 2010 Va. Acts ch. 872, Item 297, 7 KKKK.
8. Pub. L. No. 111-226, § 101(10)(a). Alternatively, if State tax collections in 2009 were less than fiscal year 2006, the statute uses an alternative measure for 2011 education expenditures. Id. at § 101(10)(a)(ii i).
9 See 1996 Op. Va. Att'y Gen. 99, 100 (citing opinions).


Attorney General's Opinion

Last Updated 08/25/2014 16:43