15.2-1239. Orders and contracts in violation of article.
If any department or agency of the county government purchases or contracts for any supplies or contractual services contrary to the provisions of this article or the rules and regulations made thereunder, such order or contract shall be void and the head of such department or agency shall be personally liable for the costs of such order or contract.
What this means, Gloucester officials can not under any circumstances award a contract ahead of schedule and having the sufficient funds already in place for such. What about when a contract is implied though?
What we see so far, Gloucester Officials are already negotiating contracts but have not awarded any because they do not have the money to award such contracts. Question, why start the bidding early?
§ 22.1-175.5. Capital School Projects Fund.
A. The governing body of any locality which is awarded a grant pursuant to this chapter may authorize the local treasurer or fiscal officer, by ordinance or resolution, to create a separate escrow account upon the books of the locality, as described in this section. Upon the adoption of such ordinance or resolution, the treasurer of the locality shall place such grant awards into this account.
B. The escrow account shall be known as the "County/City/Town of ____________ Capital School Projects Fund." All principal deposited to such fund, together with all income from or attributable to the fund, shall be used solely for (i) construction, additions, renovations, including retrofitting and enlarging public school buildings, infrastructure, including technology infrastructure, and site acquisition for public school buildings and facilities or (ii) debt service payments, or a portion thereof, for any such projects completed in the previous ten years if so designated. No disbursement from the fund may be made except upon specific appropriation by the governing body in accordance with applicable law. If a locality establishes such a fund and designates any portion of the funds deposited therein to pay debt service for (i) any general obligation of the locality held by the Virginia Public School Authority or (ii) any Literary Fund loan, the locality shall obtain an opinion of bond counsel that designation of funds to pay debt service on obligations described in clauses (i) and (ii) hereof does not adversely impact the tax-exempt status of such obligations.
C. All grant awards deposited in the fund, including all income from or attributable to such fund, shall be deemed public funds of the locality and shall be subject to all limitations upon deposit and investment provided by general law, including, but not limited to, the Virginia Security for Public Deposits Act (§ 2.2-4400 et seq.). Income, dividends, distributions, and grants accruing to the fund shall be retained in such fund and shall be expended only in accordance with the terms of this section.
D. Nothing in this section shall be deemed or construed to authorize a school board or school division to receive, hold or invest funds in its own name, nor to expend funds in the absence of a specific appropriation by the governing body of the locality in accordance with applicable law.
What this means, still can not violate awarding contracts early and how the funds are to be used.
Question, early bid requests for construction when funds are not secured, does this constitute a contract negotiation? County officials have already publicly stated that an award to a contract bid is expected to be given by the end of August with the exact date stated as August 30th, 2013. That is an implied contract award. All this ahead of time of when bonds will have already been sold?
Is that legal? Implied contract award and an actual contract award are two separate areas of law. We would say that Gloucester officials have committed to an implied contract without having sufficient funds to do so from what we are seeing in the papers and on the county website.
Yet Gloucester Officials have already ordered bids for this construction as though the money is already in hand.
The issuance of final approval must be done at a later date with a public hearing to be held. That public hearing is to be held on August 6th, 2013 and it is a public hearing. Everything we are seeing so far, the Gloucester Board of Supervisors, despite what the local citizens may disagree to, have every intention of pushing this through. That is big government doing what it wants to when it wants to and damn the people.
But let's look closer at these issues. Are Gloucester officials violating their oaths of office? We think there is a case for that, and if there is, then everything they do here could end up on their shoulders and be null and void and all expenses on each individual official involved.
Let's explore that now. The following is what the Virginia Code reads;
§ 49-1. Form of general oath required of officers.
Every person before entering upon the discharge of any function as an
officer of this Commonwealth shall take and subscribe the following oath: "I
do solemnly swear (or affirm) that I will support the Constitution of the
United States, and the Constitution of the Commonwealth of Virginia, and that
I will faithfully and impartially discharge all the duties incumbent upon me
as .......... according to the best of my ability, (so help me God)."
§ 24.2-120. Oath of office.
The oath of office for the members of the electoral board, registrars, and officers of election shall be the oath stated in Article II, Section 7, of the Constitution. Each member of the electoral board, registrar, and officer of election shall take and sign the oath before performing the duties of his office.
Each member of an electoral board and general registrar shall file the original signed oath in the clerk's office of the circuit court of his county or city. The general registrar shall file a copy with the secretary of his electoral board.
The oath of office for assistant and substitute registrars, officers of election, and voting equipment custodians may be administered by a general registrar or a notary as well as by persons authorized to administer oaths under §
49-3.
The oath of office for officers of election may be administered by a member of the electoral board, the general registrar, an assistant or substitute registrar, as well as by notaries and persons authorized to administer oaths under §
49-3.
Article 2
Section 7. Oath or affirmation.
All officers elected or appointed under or pursuant to this Constitution shall, before they enter on the performance of their public duties, severally take and subscribe the following oath or affirmation:
"I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge all the duties incumbent upon me as ...................., according to the best of my ability (so help me God)."
Section 8. Electoral boards; registrars and officers of election.
There shall be in each county and city an electoral board composed of three members, selected as provided by law. In the appointment of the electoral boards, representation, as far as practicable, shall be given to each of the two political parties which, at the general election next preceding their appointment, cast the highest and the next highest number of votes. The present members of such boards shall continue in office until the expiration of their respective terms; thereafter their successors shall be appointed for the term of three years. Any vacancy occurring in any board shall be filled by the same authority for the unexpired term.
Each electoral board shall appoint the officers of election and general registrar for its county or city. In appointing such officers of election, representation, as far as practicable, shall be given to each of the two political parties which, at the general election next preceding their appointment, cast the highest and next highest number of votes.
No person, nor the deputy of any person, who is employed by or holds any office or post of profit or emolument, or who holds any elective office of profit or trust, under the governments of the United States, the Commonwealth, or any county, city, or town, shall be appointed a member of the electoral board or general registrar. No person, nor the deputy or the employee of any person, who holds any elective office of profit or trust under the government of the United States, the Commonwealth, or any county, city, or town of the Commonwealth shall be appointed an assistant registrar or officer of election.
The amendment ratified November 4, 1986 and effective January 1, 1987—In paragraph two, after "officers", deleted the words "and registrars" and added "and general registrar" after "of election". In paragraph three, after "the electoral board or", added the word "general" before "registrar" and deleted a reference to officer of election, and added the last sentence: "No person, nor the deputy or the employee of any person . . .".
Above is the legal status of each Gloucester official. They are sworn to uphold the federal as well as the state Constitution. No exceptions. What happens if they violate that oath? We have found that answer and here it is.
§ 15.2-1405. Immunity of members of local governmental entities; exception.
The members of the governing bodies of any locality or political subdivision and the members of boards, commissions, agencies and authorities thereof and other governing bodies of any local governmental entity, whether compensated or not, shall be immune from suit arising from the exercise or failure to exercise their discretionary or governmental authority as members of the governing body, board, commission, agency or authority which does not involve the unauthorized appropriation or misappropriation of funds. However, the immunity granted by this section shall not apply to conduct constituting intentional or willful misconduct or gross negligence.
The above is from the Gloucester County Board of Supervisors meeting held July, 2nd, 2013. Clear that the bonds have not even been fully approved yet.
However, bids for construction are being sought for this new school. That seems to be an implied contract.
The above video link shows that Gloucester will in fact be going through with the new school construction even though they have another school being remodeled that could easily cover the needs of schooling for the community.
The person states that there will be a new contractor for the construction of the new school. Implied contract seems to fully exist in our view. Now does the implied contract violate Virginia State Code? That is the main question at this point and in our own view, yes it does. If it shown to be a violation of state code, then Gloucester officials can be forced into paying all these costs out of their own pockets and all contracts are null and void.
This is part one of several parts to this story. We have uncovered much more and will be covering it all very soon.
