New county attorney briefs Mathews board

by Sherry Hamilton - Posted on Jan 16, 2019 - 02:48 PM

Mathews supervisors learned a lot from new County Attorney Daniel Stuck during their annual organizational meeting on Jan. 10, including that they don’t own the county’s schools and school property.

Instead, under Virginia law, the school board is the owner, said Stuck, and supervisors have no authority to contract for repairs or upgrades to any of the facilities.

Stuck, who was appointed county attorney in October, shared this information with the board of supervisors as part of what he termed a “legal audit” that he likes to conduct when he’s new to a locality in order to see if the locality is following good practice and the law.

His comments were prompted by an interchange that occurred during the December board meeting, when Mathews County School Superintendent Nancy Welch asked supervisors to begin the process for replacing the shingled roof on Lee-Jackson Elementary School. Supervisors Pepper Love and G.C. Morrow had visited the school to inspect the roof, and reported to the board that the roof is structurally sound and that they supported the project. Welch said she understood that the RFP would come through the county rather than the schools, and County Administrator Mindy Conner said she would work on drafting the document.

But Stuck told supervisors last week, “You can’t contract to fix their building. They have to.”

The school board can ask the board of supervisors for the money to repair buildings, said Stuck, and there can be a contract between the county and the schools in which the county agrees to do all the groundwork, etc., but the money would have to be appropriated to the schools, then paid back to the county.

“They can’t just come in and say ‘we have a leaky roof, and you have to fix it,’” said Stuck.

He said he had searched county records to see if the deeds to the schools had the school board as the owner, and had found that the deeds correctly reflected that. However, the land records in the clerk’s office are not correct, he said. In 1998, the school board owned about 12 pieces of property, he said, but “they disappeared in 1999.”

“The commissioner can have the records all mixed up, but that doesn’t change the ownership,” said Stuck. He suggested that the school board might want to pay a title examiner to go through all of the records and make a list of what the county owns, since “things get conveyed in and back out,” such as the small schoolhouses that used to exist in various parts of the county.

Areas of concern

Stuck said there are three areas that generate the most legal issues for a locality—land use, purchasing and contractual issues, and personnel policies and employee matters. Problems often occur because of new regulations that leave the old practices out of date, he said.

Personnel policy issues generally occur the least often, he said, so he left the policy to be reviewed over time. But he said the other two areas can lead to problems.

Under purchases and contracts, Stuck said he had gone through county documentation and had found bid documents that weren’t completed properly, contracts that weren’t signed, inadequate documentation, and the overuse of e-mails rather than an official record by regular mail.

In terms of procurement, Stuck said the county is using the state’s procedure along with a small purchase policy. He said he would review and make some recommendations regarding the small purchase policy in order to help the county get “more bang for the buck.”

“You’ve got staff that really want to do it right but it’s an issue of not having the experience or background in some cases,” he said. “That’s not unusual because it’s a broad area … and when you’ve got people who have other jobs, it’s not their primary function to be a contractor. You don’t have a purchasing agent; you haven’t had an attorney looking over your documents, so I would expect that.”

The board decided in 2012 to hire the Richmond law firm Sands Anderson to serve as county attorney on a per-billable-hour basis. Former County Attorney Richard Harfst had retired, and the county wasn’t successful in finding a local attorney to serve as his replacement. Stuck replaced Sands Anderson.

Stuck said the county can’t do much about irregularities in a contract that was written six months ago or more.

“You just have to move forward and work on those as we enter new contracts,” he said. “And if there’s a dispute that arises over an old contract, you just have to try to work through it.”

Also, Stuck told the board that, rather than simply approving the use of a school bus for county purposes, such as transporting seniors to an activity, the board is required to pay for the use of the bus and put the bus on the county’s insurance. A simple contract needs to be drawn up for this, he said, with a payment rate. Otherwise, he said, “neither the county nor the schools will be in a good position.”

Land use

As far as land use goes, Stuck said that if the board approves a rezoning request, “it can’t just say ‘I approve of that.’ It has to be formalized.” Zoning is in the county’s ordinance, he said, and the ordinance can’t be amended by resolution. Instead, it has to be amended by replacing it with another ordinance, which is of equal weight. He said this includes conditional use permits (termed special exceptions in state code), as well. Any conditions included in the permit must be clear, he said, and they must relate to the land use. There are some conditions that can’t be required, such as limiting the use to just the applicant. If a particular use is appropriate for a piece of land, he said, it’s appropriate no matter who owns the property.

“It’s discrimination if you’re going to give them a permit because of who they are,” he said. “The courts really frown on that.”

In the past, if a county board did something wrong and the property owner didn’t like it, he said, they could take the board to court and make the board correct it. They couldn’t sue for money because “the thought was that the taxpayer shouldn’t have to pay if the board messes up.” Now, however, they can also make the county pay damages, as well as attorney’s fees and other costs.

“That’s why it’s important when you’re dealing with land use issues to be careful and be clear,” he said.

As far as proffers go, Stuck said that any proffers made by the applicant and accepted by the county need to be recorded in the clerk of court’s property records.

Zoning ordinance

Stuck told the board that the county’s zoning ordinance “says the county doesn’t want development, that it wants to make it difficult to do commercial development.” He said it contains a number of provisions he’d never seen in any ordinance. For instance, he said there are as many conditional uses as permitted uses in almost every district.

“Normally, districts are tailored enough that you know what you want and don’t need to have so many conditional uses,” he said.

The Mathews ordinance has a minimum lot size for every use, said Stuck, which “makes you have a two- or five-acre minimum for each business in a shopping center.”

“You want regulations that match the community,” he said. “If you want a stranglehold and to approve every feature of every use, you do it this way.”

Appropriations

Stuck suggested that, instead of taking the time to approve additional appropriations for such minor items as donations and grants received by county departments, the board could instead give the county administrator authorization to handle everything except controversial matters.

At the end of Stuck’s comments, supervisor Edwina Casey said emphatically, “I learned a lot today,” and supervisor Amy Dubois expressed appreciation for Stuck’s advice.