VEA President James J. Fedderman Letter to Virginia State Auditor
May 1, 2023
May 1, 2023
This letter was sent by VEA President Dr. James J. Fedderman to the State Auditor in response to Virginia laboratory school funding being appropriated to non-qualifying colleges and universities.
Dear Virginia State Auditor and Staff,
I am reaching out on behalf of the Virginia Education Association (VEA). We believe a portion of the College Partnership Laboratory Schools Fund is being appropriated to non-qualifying institutions of higher learning, in violation of budget code. We respectfully request that you investigate what we believe is an unauthorized and illegal handling and expenditure of state funds, and take immediate action as required by Virginia Code Section 30-139. We believe the unauthorized use of state funds should be promptly reported as an irregularity under the statute. We hope you will notify the recipients of the funds that the disbursement may impact their audits and certifications under Virginia Code Sections 23.1-1001 and 30-133.1. We also hope you will notify the institutions they may be liable for the return of tax dollars if they are not qualified to receive them.
It is clear to us that the budgetary language for the Fund in Item 137.C.44, subsection f only allows for the $100 million to be appropriated to “public, nonsectarian, nonreligious school[s] in the Commonwealth established by a baccalaureate public institution of higher education.” While the definition of lab schools has been expanded to “include public IHEs, certain private IHEs, and other higher education entities” in section 22.1-349.1, subsection f clearly states: “Notwithstanding the provisions of subsection A of § 22.1-349.1” – meaning this section of code with the expanded definition does not apply to the Fund. Essentially, two-year and private institutions do not qualify to access any of the new $100 million added to the Fund. In fact, section 23.1-100 defines baccalaureate public institutions of higher education and itemizes the institutions that would be eligible for disbursements from the Fund.
As it stands, the Virginia Board of Education, under advisement from the Secretary of Education, has approved guidelines with inaccurate information about what entities qualify for this funding, and this has led to several two-year and private institutions of higher education receiving planning grant funding for which they do not meet the budgetary qualifications. Staff attorneys at the Division of Legislative Services sent a letter on July 28th, 2022 to Senator Howell in agreement with our reading of the state budget, only allowing the money to go toward “a public higher education center, institute, or authority”.
At the August 17th, 2022 Virginia Board of Education meeting, on the topic of the budget language, Secretary Guidera encouraged the Board members to move forward with a grant process open to two-year and private universities by saying: “You have in your packet a letter of verification from Chairman Barry Knight reinforcing that the intent of the conversation that happened, and as you heard from Delegate Davis during the public comment period, that the intent of bipartisan support was to ensure that we not only expanded the eligible higher education institutions that could sponsor and launch a lab school, but also to receive funding from that $100 million… As Delegate Davis said, if there are technical issues that come up we will deal with them, we will commit to doing that, but at this moment, all recommendations from every expert we have talked to say to continue moving forward and keep this process going so that we can meet the demand that exists out there” (1:28:15 in 8/17/22 VBOE Meeting recording). A copy of the letter from Delegate Knight can be found here. Secretary Guidera went on to say: “Chairman Knight’s letter says this is the intent, there was bipartisan support for this, and we defer to their judgment on that, but at the same time, as both the president said here today, and also Delegate Davis, if there are technical fixes that need to be made, we are committed to making sure we do everything right on this” (2:04:47 in 8/17/22 VBOE Meeting recording).
However, all indications from Democratic lawmakers indicate the interpretation of Secretary Guidera and her counsel was not their intent. In an August 17th story by Virginia Public Media, the reporter notes: “And a staffer for Sen. George Barker (D-Fairfax), who worked alongside Howell and Knight to negotiate the budget, said in an email that the legislature’s intent was for the funding to go exclusively to public institutions.”
At the September 14th Senate Finance and Appropriations Committee meeting, Secretary Guidera gave a presentation on lab schools. Several lawmakers on the committee had serious issues with the administration moving forward with offering grant funding to two-year and private institutions and specifically cited the section of the budget code that disallows this.
Senator Locke started off by asking Secretary Guidera to talk about the budget language issue and the dissonance between intent and language. Secretary Guidera stated: “I know there’s disagreement about the intent. Our intent, and we went and sought guidance from the Office of the Attorney General, the Department of Planning and Budget, and then also received a letter from Chairman Knight after saying that they agree with the intent we had as well” (46:12 in 9/12/22 Senate Finance and Appropriations Committee Meeting recording)
Senator McClellan then stated that “we don’t have legislative intent in Virginia, we have a clear body of law for statutory construction that says you follow the unambiguous letter of the law.” She pointed to Item 137.44.C.f and the notwithstanding clause and said, “It doesn’t matter what the Chairman of the House Appropriations Committee, or with all due respect, the chair of the finance committee intended. What matters is the language that was put in the budget.” She then asks the secretary if she has an Attorney General opinion or declaratory ruling on the matter (46:59 in 9/12/22 Senate Finance and Appropriations Committee Meeting recording). Secretary Guidera goes on to say she doesn’t have an opinion but received guidance from the Attorney General’s office to move forward. Senator Howell noted that Division of Legislative Services lawyers would disagree with the guidance given by the Attorney General’s office. Senator Barker goes on to note that only public four-year institutions are allowed access to the lab school grant funds and he and Senator Howell were heavily involved in establishing this language with Delegate Knight in the budget. Senator Barker notes that “language is not squishy. That language is very clear what it means.” He then implied that his intent was to keep the funding for public four-year institutions before opening it to others.
Secretary Guidera went on to say: “we have received differing interpretations. And we, the counsel that I have received, is a different interpretation from the members of the committee this morning. And so that is what we are listening to. And again, happy to continue the conversation, but I think there’s a difference in interpretation of the ability to move forward on this (52:05 in 9/12/22 Senate Finance and Appropriations Committee Meeting recording). Senator Barker went on to bring up his experience working to develop the original lab school language, and in reference to the current situation said, “We need to be able to do that in a collaborative fashion rather than pitting the administration against what the General Assembly has done here, and I don’t think that’s healthy for either of us in the long run.”
Clearly, from the September Senate Finance and Appropriations Committee meeting, Democratic lawmakers understood what they were voting on, and it was not their intent to allow two-year and private institutions access to this funding. While it may be convenient for the administration to ignore the budget code, and clearly based on the statements by Secretary Guidera, they are eager to move forward with making the grant funds available to two-year and private institutions, their claim that there was “bipartisan” intent doesn’t hold up to statements by the very lawmakers who worked to write and pass the budget language. Regardless of intent, Virginia courts have a long history of upholding plain meaning of statutory interpretation, and the appropriation of this budget item should not be up for debate.
Given the clear budget language, lack of bipartisan intent, and the requirement for budget funding to be appropriated according to statutory requirements, we ask you to take immediate action to stop the misappropriation of these funds to two-year and private institutions.
James J. Fedderman, Ph.D.