The Dillon rule and other challenges to democracy

Dave RessDAVE RESS

Senior Political Reporter
Daily Press, Newport News, Virginia
Phone: (757) 880-9194
Email: dress@dailypress.com

 

 

You wrote a column with the headline “Dogcatchers and the General Assembly.” What was it about?
The Dillon rule is an old rule that judges have imposed since about the 1870s . An Iowa judge named John Dillon was the one who first promulgated it. It tries to sort the division between state and local government. In Virginia the way we have interpreted it is very, very tightly, so that local governments have very, very limited powers. And as it happened this year, as I was trolling through the bills that were coming up before our state assembly, I found one that initially made me laugh, and then made me think it’s time remind people about the Dillon rule. This was legislation coming before all 140 members of the Virginia General Assembly, ultimately to the governor for his consideration – it says Fairfax County can have animal control officers, dogcatchers, in the police department. And that was a level of interest and intervention in the functioning of Fairfax County government that I thought was both somewhat funny, but also a good illustration of what the Dillon rule really means in this state.

To break it down a little more simply, was the Dillon rule saying that you could not have dogcatchers?
The Dillon Rule says that if you don’t have (as interpreted in Virginia, which is stricter than many other states) specific authority as a local government to do something, then you can’t do it. And in Virginia that means that you then have to go the state General Assembly and ask for special legislation to do it. In Fairfax County, they wanted to have their animal control officers be part of the police department, as is the case in a lot of Virginia municipalities. In order to make that happen, the Fairfax board of supervisors were unable to simply say, “We’re going to call animal control a part of our police department.” They had to come up to Richmond and say, “Can we please have animal control as part of the police department?” Similarly, another example of that is the town of South Hill, down near the North Carolina line, which wanted to have its town treasurer be the finance director. They basically just wanted to call him or her that. That also requires legislation.

So you look every year to discover what odd new permissions are being sought?
Basically, in Virginia we have two committees, one in the House of Delegates one in the Senate, and a significant part of their heavy workload is to look as these sort of towns’, cities’ or counties’ specific bills and say, “Yes you can do this,” or, “No, you can’t do that.”

So looking at Flint, Michigan, where the state-appointed administrator came in and took local control out of elected officials’ hands, is there a parallel?
[The parallels] are important for Virginians to consider because Michigan, I’m fairly sure, is a home-rule state. And it’s a state that has traditionally, sort of, somewhat constrained interpretation of the Dillon rule. But what’s happened in Michigan, because of the financial problems in Detroit and Flint, and a couple other localities – the state has enacted special power that says, “We can step in, when you’re in a financial meltdown, and then take over.” The interesting lesson I think for Flint and for anyone in Virginia, or for anyone around Appalachia, is that democracy has its challenges. The way democracy worked in Flint seems to have landed it in financial distress that prompted the state to step in. But to delegate, to remove democracy from the process of local government has very serious consequences, too. It’s not as if having an outside manager come in and say, “No, no, no, we’ll take care of that – no need for democracy here,” is an answer to the problems of local governments. The lesson possibly for Virginians is to say: “Well, possibly our very strict interpretation of the Dillon rule is not necessarily the right answer for the challenges that all local government have for running themselves.”

How aware are small-town leaders in Virginia of the Dillon rule, and what can they do to cope with it?
I think most in Virginia, most mayors, most city managers, most county administrators, are fairly clear about the constraints of the Dillon rule on the way they do business. And so from their point of view, when they start to see what the voters in their municipalities need them to do … to cope (with the Dillon rule) what they would probably be needing to do is to be sure that they have good, tight, close relations with their legislators, their members of their House of Delegates, their senators. And possibly close relations with the other members that they might know in the key committees. And possibly, as well, because we do have very strong and very effective lobbyists with the Municipal League and the Association of Counties. Those are the ways to do it … not so much looking at what the legislature is doing to expand the Dillon rule, but having to think strategically about: “We have these constraints. Are we going to need to ask the legislature to help us get past this so we can do what our people wants us to do?”

What if some external force all of a sudden pits these towns against big oil, gas and energy companies, abridging their power to pass laws and regulations?
Welcome to politics in Richmond! Those are very tough issues. The municipal governments, cities and counties have effective lobbyists. There are lobbyists in the state legislature here that are also extremely effective, whose interests are not always what the municipal governments are. Utilities questions that are coming up this session, for instance, about the siting of pipelines, about transmission-lines issues. One that’s come up about the information that may be made available to local government about fracking, fracking liquids that people use. It’s not a Dillon rule questions, but it’s an important questions for localities. It’s an important question for oil, gas and energy companies. And they have a very powerful lobby.

What else should leaders in small-town Appalachia think about?
For what it’s worth, at a quick glance, West Virginia does have a fairly strong move toward home rule. They do try to constrain – in fact, I think West Virginia doesn’t even accept the Dillon rule as a construction of the division of powers. Tennessee is also a home-rule state. But it’s definitely worth it, if you are new to local government or maybe haven’t had to really think about what you can or can’t do as an elected official or as an appointed executive of local government, to be sure that you have a good understanding of what the courts in your state (have said), the constitution in your state and your state code – about the powers that you have, that you’re inferred to have, and that you are denied from having.