![\"\"](\"https://cms-nasimpson.goingblu.com/wp-content/uploads/2025/07/Screenshot-2025-07-22-at-4.35.32-AM-1024x451.png\")
Every few years, the frontier of “public record” expands in ways that make lawyers nervous and IT people shake their heads. Email did it in the 90s. Text messages did it in the 2000s. Slack channels and Teams chats did it more recently. And now we’ve arrived at the next step: artificial intelligence platforms.
\n\n\n\nThere is a myth floating around government offices, sometimes whispered by staff who don’t want their rough drafts discovered, sometimes encouraged by vendors, that anything typed into an AI system is somehow outside the reach of public transparency laws. As if the content is different, or ephemeral, or “not really a document” because it came from a chatbot instead of a yellow legal pad.
\n\n\n\nVirginia law disagrees.
\n\n\n\nVirginia FOIA Cares About Substance, Not Format
\n\n\n\nThe Commonwealth’s FOIA statute has one of the broadest definitions of “public record” in the country. It is indifferent to the container, indifferent to the technology, and indifferent to how polished or unpolished the writing may be.
\n\n\n\nThe statute says:
\n\n\n\n“Public record” means any writing or recording… regardless of physical form or characteristics… prepared by, or in the possession of, a public body or its officers, employees, or agents in the transaction of public business.
— Va. Code § 2.2-3701
That definition swallows nearly every imaginable artifact of modern work. If a public employee types something into a system, any system, while conducting public business, it is a public record. Paper, PDF, Word file, text message, sticky note, Google Doc comment, Slack DM, handwritten margin scribbles, or an OpenAI “prompt history” log. FOIA doesn’t care. Medium is irrelevant.
\n\n\n\nA prompt written into ChatGPT asking it to “draft tonight’s zoning presentation” is a public record. A block of AI-generated text that becomes a briefing memo is a public record. Even the back-and-forth refinement, the entire chain of edits, prompts, clarifications, and corrections, is a public record, because the statute looks at what the employee did, not the tool they used.
\n\n\n\nThe “Drafts” and “Working Papers” Myth
\n\n\n\nSome employees assume that anything “draft-like” is automatically shielded. But Virginia is unusually strict about what counts as a “working paper.” The exemption is very narrow and applies only to the personal or deliberative use of specific officials:
\n\n\n\nThat list does not include ordinary staff, department heads, technical employees, administrative aides, or analysts.
\n\n\n\nSo, if a staff member uses AI to produce:
\n\n\n\nthose drafts are not exempt simply because they are drafts. The law treats an AI-generated draft no differently than a Microsoft Word draft saved at 2:17 p.m. on a Tuesday.
\n\n\n\nUnless the draft was created specifically for the personal deliberative use of one of the narrow officials listed above, it is not protected.
\n\n\n\nRoutine AI Use = Routine FOIA Exposure
\n\n\n\nOnce AI becomes a normal part of doing government work, it also becomes part of the public record landscape.
\n\n\n\nIf an employee uses ChatGPT, Claude, Copilot, Gemini, or anything similar to:
\n\n\n\nthe input and output are presumptively FOIA-able.
\n\n\n\nAnd not just the final answer. The entire chain: every prompt, iteration, correction, clarification, alternate version, expansion, contraction, and sample paragraph. If a person typed it in the course of public business, the public may request it.
\n\n\n\nAn AI transcript is no different than a chain of tracked changes, email revisions, or handwritten notes in a meeting notebook. It is part of the deliberative record—unless a separate exemption applies (attorney-client privilege, criminal investigative materials, personnel records, IT security documents, etc.). But the “draft” label alone does not protect it.
\n\n\n\nWhat About Logs Held by the Vendor?
\n\n\n\nThis is where the cloud era complicates things, but Virginia FOIA has been ahead of this issue for years.
\n\n\n\nAnd if they are accessible, they are subject to FOIA.
\n\n\n\nOnly records that do not exist in the possession or control of the public body are not subject to FOIA. A log stored by OpenAI that the county cannot or has no contractual right to retrieve, is not a public record. But that is far rarer than most assume, especially in enterprise agreements.
\n\n\n\nA Practical Example: The Chain of Custody Problem
\n\n\n\nImagine a zoning staffer asks an AI system:
\n\n\n\n“Draft a polite response explaining why we cannot adjust the setback requirements for Parcel #118A.”
\n\n\n\nThe AI gives a paragraph. The staffer replies:
\n\n\n\n“Make it firmer. Less apologetic.”
\n\n\n\nThe AI revises. The staffer says:
\n\n\n\n“Remove the part about last year’s case, don’t mention the Smith subdivision.”
\n\n\n\nAnd the AI produces a final version, which is emailed to the citizen.
\n\n\n\nUnder FOIA, the citizen is entitled not just to the polished email, but also the earlier versions, the internal prompts, the edits, the instructions, the “make it firmer,” the removed reference to the Smith subdivision, and the entire digital trail of how the message came to be.
\n\n\n\nThat is how the law has always worked. The AI system simply automates the drafting process that used to happen inside a Word document or inside a notebook margin.
\n\n\n\nThe Bottom Line
\n\n\n\nVirginia FOIA does not bend merely because the work is done inside a modern tool.
\n\n\n\nIf a public employee uses AI while conducting public business:
\n\n\n\nare all public records, unless a specific statutory exemption applies.
\n\n\n\nThe new world of AI doesn’t replace public accountability. It expands the paper trail, and the paper trail has always belonged to the people.
\n","protected":false},"excerpt":{"rendered":"Every few years, the frontier of “public record” expands in ways that make lawyers nervous and IT people shake their heads. Email did it in the 90s. Text messages did it in the 2000s. Slack channels and Teams chats did it more recently. And now we’ve arrived at the next step: artificial intelligence platforms. There … Read more
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Government","slug":"virginia-government","taxonomy":"category","_links":{"self":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories/41","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories"}],"about":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/taxonomies/category"}],"wp:post_type":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts?categories=41"},{"href":"https://cms.nasimpson.com/wp-json/wp/v2/media?categories=41"}],"curies":[{"name":"wp","href":"https://api.w.org/{rel}","templated":true}]}}],[]]}},{"id":444,"date":"2025-07-22T03:47:42","date_gmt":"2025-07-22T07:47:42","guid":{"rendered":"https://cms-nasimpson.goingblu.com/?p=444"},"modified":"2025-10-09T07:06:56","modified_gmt":"2025-10-09T11:06:56","slug":"what-should-we-do-appomattox-county-part-6","status":"publish","type":"post","link":"https://cms.nasimpson.com/2025/07/22/what-should-we-do-appomattox-county-part-6/","title":{"rendered":"What Should We Do, Appomattox County? (Part 6)"},"content":{"rendered":"\nThe facts are clear, the timeline is damning, and the legal exposure is severe. We’ve seen how a bad deal spiraled into a governance crisis, leaving a valuable public asset hanging in the balance, at the mercy of a federal bankruptcy court. Simply pointing fingers is not enough. The critical question now is: What must be done to protect our community’s interests and salvage the future of the Career and Technical Education (CTE) Center?
\n\n\n\nThe current path leads to a federal trustee auctioning off our school to the highest bidder. That is an unacceptable outcome.
\n\n\n\nHere is a clear, actionable, and transparent plan for our Board of Supervisors to fix this. It is a path to restore public trust, mitigate the County’s legal liability, and, most importantly, get back to the original goal: getting people welding, fixing cars, cutting hair, and learning CPR.
\n\n\n\nThe Board of Supervisors must immediately commission an independent, third-party review of this entire transaction, from the signing of the original lease in 2022 to the unauthorized sublease consent in 2024 and the illegal amendment in 2025. This cannot be an internal review. It must be conducted by an outside legal firm with no ties to the County or the parties involved.
\n\n\n\nThe mandate for this review must include:
\n\n\n\nThe full, unredacted findings of this independent review must be made publicly available to every citizen of Appomattox County. This is the first and most essential step to rebuilding public trust.
\n\n\n\nOur County officials must stop hiding from this problem. The Board must direct the County Attorney to make immediate, documented contact with both the Chapter 7 Trustee for Bruce Boone’s estate (Lawrence Katz) and the Acting U.S. Trustee for the Department of Justice (Matthew Cheney).
\n\n\n\nThe purpose of this communication is not to be adversarial, but to be honest and seek a resolution. The message should be clear:
\n\n\n\n\n\n\n\n\n“The County of Appomattox acknowledges the gravity of the situation and the unauthorized actions that have occurred. We wish to open a formal dialogue to seek a global resolution that achieves the following goals:
\n\n\n\n\n
\n- Preserves the Carver-Price property for public educational use.
\n\n\n\n- Permanently and irrevocably removes Bruce Boone and Appomattox Christian Academy from any current or future path to ownership or control.
\n\n\n\n- Allows the County, CVCC, and Appomattox County Public Schools to move forward with the CTE center as intended.”
\n
This situation was created by a bad deal. The only way out is through a better, legally sound one. A settlement with the Trustee is possible, but it may require the County to “buy out” the value of the purchase option from the bankruptcy estate. While this is a painful pill to swallow, it is infinitely better than losing the property entirely.
\n\n\n\nThis is not a partisan issue; it is a community crisis that demands transparency, accountability, and a focus on the public good. We can still save our CTE center, but it requires our leaders to stop digging, admit the mistakes that were made, and start the difficult but necessary work of climbing out of this hole. It’s time to get this done.
\n\n\n\n\n\n\n\n\n\n\n\n\n\n","protected":false},"excerpt":{"rendered":"Something Must Be Done About Appomattox County
\n\n\n\nPosts in this Series:
\n\n\n\n\n
\n- Something Must Be Done About Appomattox County (Part 1)
\n\n\n\n- What’s the Big Deal, Anyway (Part 2)
\n\n\n\n- No, the Contract Doesn’t Protect the School from Creditors (Part 3)
\n\n\n\n- The County Keeps Digging Holes (Part 4)
\n\n\n\n- The Problem Really isn’t Mr. Boone. It’s Bad Governance. (Part 5)
\n\n\n\n- What Should We Do, Appomattox County? (Part 6)
\n
The facts are clear, the timeline is damning, and the legal exposure is severe. We’ve seen how a bad deal spiraled into a governance crisis, leaving a valuable public asset hanging in the balance, at the mercy of a federal bankruptcy court. Simply pointing fingers is not enough. The critical question now is: What must … Read more
\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-444","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts/444","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts"}],"about":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/types/post"}],"author":[{"embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/users/1"}],"replies":[{"embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/comments?post=444"}],"version-history":[{"count":0,"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts/444/revisions"}],"wp:attachment":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/media?parent=444"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories?post=444"},{"taxonomy":"post_tag","embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/tags?post=444"}],"curies":[{"name":"wp","href":"https://api.w.org/{rel}","templated":true}]},"_embedded":{"wp:term":[[{"id":1,"link":"https://cms.nasimpson.com/category/uncategorized/","name":"Uncategorized","slug":"uncategorized","taxonomy":"category","_links":{"self":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories/1","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories"}],"about":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/taxonomies/category"}],"wp:post_type":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts?categories=1"},{"href":"https://cms.nasimpson.com/wp-json/wp/v2/media?categories=1"}],"curies":[{"name":"wp","href":"https://api.w.org/{rel}","templated":true}]}}],[]]}},{"id":430,"date":"2025-07-22T03:31:49","date_gmt":"2025-07-22T07:31:49","guid":{"rendered":"https://cms-nasimpson.goingblu.com/?p=430"},"modified":"2025-10-09T07:06:56","modified_gmt":"2025-10-09T11:06:56","slug":"the-problem-really-isnt-mr-boone-its-bad-governance-part-5","status":"publish","type":"post","link":"https://cms.nasimpson.com/2025/07/22/the-problem-really-isnt-mr-boone-its-bad-governance-part-5/","title":{"rendered":"The Problem Really isn’t Mr. Boone. It’s Bad Governance. (Part 5)"},"content":{"rendered":"\nThe actions described in Part 4, the post-bankruptcy sublease consent and the legally questionable lease amendment, are alarming on their own. They show our County officials steering taxpayers into a legal minefield, seemingly indifferent to federal law. But these actions raise an even more fundamental and disturbing question: Who in our county government possessed the legal authority to approve them in the first place?
\n\n\n\nUnder Virginia law, a county can only “speak” through its recorded votes at a public meeting. For a decision of this magnitude, which disposes of public property rights, a formal public process is not a suggestion; it is a legal requirement. To understand the authority behind these decisions, I made a formal request to the County under the Virginia Freedom of Information Act.
\n\n\n\nOn May 8, 2025, I requested the Board of Supervisors’ minutes or any other recorded action that authorized the Chairman, John F. Hinkle, to sign the consent for the CVCC sublease.
\n\n\n\nAfter ten working days, on May 22, 2025, the County provided its official response:
\n\n\n\n\n\n\n\n\n“After researching the question, your request… can not be fulfilled because the records you have requested could not be found or do not exist…”
\n
![\"\"](\"https://cms-nasimpson.goingblu.com/wp-content/uploads/2025/07/Screenshot-2025-07-22-at-4.35.43-AM-1024x545.png\")
This is not a simple misfiling of paperwork. This is a formal admission from the Appomattox County government that no public vote, no resolution, and no formal Board authorization for the Chairman’s signature ever took place.
\n\n\n\n![\"\"](\"https://cms-nasimpson.goingblu.com/wp-content/uploads/2025/07/Screenshot-2025-07-22-at-3.17.09-AM-1024x689.png\")
![\"\"](\"https://cms-nasimpson.goingblu.com/wp-content/uploads/2025/07/Screenshot-2025-07-22-at-3.18.32-AM-1024x438.png\")
This lack of authorization confirms the worst-case scenario.
\n\n\n\nTo cure this defect, the Board of Supervisors has only two choices, both of which must be made in a public forum:
\n\n\n\nFailure to do either amounts to a cover-up. The question is no longer just about a bad deal; it is about the integrity of our local government and the personal accountability of the officials who knowingly or negligently put our community’s assets at risk.
\n\n\n\n\n\n\n\n\n\n","protected":false},"excerpt":{"rendered":"Something Must Be Done About Appomattox County
\n\n\n\nPosts in this Series:
\n\n\n\n\n
\n- Something Must Be Done About Appomattox County (Part 1)
\n\n\n\n- What’s the Big Deal, Anyway (Part 2)
\n\n\n\n- No, the Contract Doesn’t Protect the School from Creditors (Part 3)
\n\n\n\n- The County Keeps Digging Holes (Part 4)
\n\n\n\n- The Problem Really isn’t Mr. Boone. It’s Bad Governance. (Part 5)
\n\n\n\n- What Should We Do, Appomattox County? (Part 6)
\n
The actions described in Part 4, the post-bankruptcy sublease consent and the legally questionable lease amendment, are alarming on their own. They show our County officials steering taxpayers into a legal minefield, seemingly indifferent to federal law. But these actions raise an even more fundamental and disturbing question: Who in our county government possessed the … Read more
\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-430","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts/430","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts"}],"about":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/types/post"}],"author":[{"embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/users/1"}],"replies":[{"embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/comments?post=430"}],"version-history":[{"count":0,"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts/430/revisions"}],"wp:attachment":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/media?parent=430"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories?post=430"},{"taxonomy":"post_tag","embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/tags?post=430"}],"curies":[{"name":"wp","href":"https://api.w.org/{rel}","templated":true}]},"_embedded":{"wp:term":[[{"id":1,"link":"https://cms.nasimpson.com/category/uncategorized/","name":"Uncategorized","slug":"uncategorized","taxonomy":"category","_links":{"self":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories/1","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories"}],"about":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/taxonomies/category"}],"wp:post_type":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts?categories=1"},{"href":"https://cms.nasimpson.com/wp-json/wp/v2/media?categories=1"}],"curies":[{"name":"wp","href":"https://api.w.org/{rel}","templated":true}]}}],[]]}},{"id":423,"date":"2025-07-22T02:45:52","date_gmt":"2025-07-22T06:45:52","guid":{"rendered":"https://cms-nasimpson.goingblu.com/?p=423"},"modified":"2025-10-09T07:06:56","modified_gmt":"2025-10-09T11:06:56","slug":"the-county-keeps-digging-holes-part-4","status":"publish","type":"post","link":"https://cms.nasimpson.com/2025/07/22/the-county-keeps-digging-holes-part-4/","title":{"rendered":"The County Keeps Digging Holes (Part 4)"},"content":{"rendered":"\nAt this point in the saga, any reasonable observer would expect the story to pause. With their contract partner at the center of a massive federal bankruptcy case, and with their own contract frozen by a de facto federal court order, the Appomattox County government had every reason and legal obligation to stop. Their hands were tied, and the path forward was squarely in the hands of the bankruptcy trustees and a federal judge. To do anything else would be to walk knowingly into a legal buzzsaw.
\n\n\n\nThis legal paralysis makes the County’s subsequent actions all the more stunning. Rather than respecting the federal stay, the public record reveals a pattern of conduct that seems to ignore it completely. This section will examine two specific, documented actions taken by the County and its officials long after the bankruptcy was filed.
\n\n\n\nThese were not minor administrative errors. They were formal, contractual acts, a consent to a sublease and a direct amendment to the prime lease, that fundamentally altered the status of a protected federal asset. As we will see, these actions did not solve the County’s problem; they created a new one, escalating the situation from a poor business deal to a serious governance failure with devastating potential consequences.
\n\n\n\nView the file: Deed of Sublease (VCCS 292-24-01)
\n\n\n\nThis “Deed of Sublease” is where Appomattox Christian Academy (ACA), as the “Sublandlord,” leases a huge chunk of the property (10,568 sq ft) to Central Virginia Community College (CVCC).
\n\n\n\nWhy This is a Disaster:
\n\n\n\nView the file: Lease and Purchase Option Agreement Amendment
\n\n\n\nThis document is even more damning. This is an amendment to the original lease, signed by the County and ACA, that formally carves out the CVCC space from ACA’s leasehold.
\n\n\n\nWhy This is a Catastrophe for the County:
\n\n\n\n\n\n","protected":false},"excerpt":{"rendered":"Something Must Be Done About Appomattox County
\n\n\n\nPosts in this Series:
\n\n\n\n\n
\n- Something Must Be Done About Appomattox County (Part 1)
\n\n\n\n- What’s the Big Deal, Anyway (Part 2)
\n\n\n\n- No, the Contract Doesn’t Protect the School from Creditors (Part 3)
\n\n\n\n- The County Keeps Digging Holes (Part 4)
\n\n\n\n- The Problem Really isn’t Mr. Boone. It’s Bad Governance. (Part 5)
\n\n\n\n- What Should We Do, Appomattox County? (Part 6)
\n
At this point in the saga, any reasonable observer would expect the story to pause. With their contract partner at the center of a massive federal bankruptcy case, and with their own contract frozen by a de facto federal court order, the Appomattox County government had every reason and legal obligation to stop. Their hands … Read more
\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-423","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts/423","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts"}],"about":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/types/post"}],"author":[{"embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/users/1"}],"replies":[{"embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/comments?post=423"}],"version-history":[{"count":0,"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts/423/revisions"}],"wp:attachment":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/media?parent=423"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories?post=423"},{"taxonomy":"post_tag","embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/tags?post=423"}],"curies":[{"name":"wp","href":"https://api.w.org/{rel}","templated":true}]},"_embedded":{"wp:term":[[{"id":1,"link":"https://cms.nasimpson.com/category/uncategorized/","name":"Uncategorized","slug":"uncategorized","taxonomy":"category","_links":{"self":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories/1","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories"}],"about":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/taxonomies/category"}],"wp:post_type":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts?categories=1"},{"href":"https://cms.nasimpson.com/wp-json/wp/v2/media?categories=1"}],"curies":[{"name":"wp","href":"https://api.w.org/{rel}","templated":true}]}}],[]]}},{"id":422,"date":"2025-07-22T02:45:20","date_gmt":"2025-07-22T06:45:20","guid":{"rendered":"https://cms-nasimpson.goingblu.com/?p=422"},"modified":"2025-10-09T07:06:56","modified_gmt":"2025-10-09T11:06:56","slug":"no-the-contract-doesnt-protect-the-school-from-creditors-part-3","status":"publish","type":"post","link":"https://cms.nasimpson.com/2025/07/22/no-the-contract-doesnt-protect-the-school-from-creditors-part-3/","title":{"rendered":"No, the Contract Doesn’t Protect the School from Creditors (Part 3)"},"content":{"rendered":"\nThe direct and unfortunate answer is: It is almost certainly too late for the County to terminate the lease now and shield it from the Trustee.
\n\n\n\nThe moment Mr. Boone’s bankruptcy was filed, an Automatic Stay (like a forcefield), was erected around his assets, and this lease option is now considered one of them. The County’s contractual rights are now superseded by federal bankruptcy law.
\n\n\n\nThe lease lists specific events that constitute a “material default” allowing the County (the “Owner”) to terminate. Let’s look at each one and see why it won’t work now.
\n\n\n\n1. The “Bankruptcy Clause” – Section 22(e)
\n\n\n\n2. Failure to Maintain Non-Profit Status – Section 22(b)
\n\n\n\n3. Vacating or Ceasing Operations – Sections 22(a) and 22(c)
\n\n\n\n4. Failure to Perform Other Covenants (e.g., repairs, utilities) – Section 22(d)
\n\n\n\nThe only legally proper way for the County to act right now would be to file a Motion for Relief from the Automatic Stay with the bankruptcy court, asking for permission to terminate the lease.
\n\n\n\nThis motion would fail spectacularly.
\n\n\n\nThe Trustee would object, telling the judge: “Your Honor, this lease option is a hugely valuable asset that I intend to liquidate for the benefit of the 100+ creditors in this case. The County is trying to snatch it away for nothing. I ask you to deny their motion so I can do my job.”
\n\n\n\nThe judge, whose duty is to see that the estate’s assets are preserved for creditors, would deny the County’s motion in a heartbeat.
\n\n\n\nWe cannot cancel this contract. The moment Mr. Boone’s bankruptcy was filed, our lease agreement became a federal asset under the control of the bankruptcy court.
\n\n\n\n\n\n","protected":false},"excerpt":{"rendered":"Something Must Be Done About Appomattox County
\n\n\n\nPosts in this Series:
\n\n\n\n\n
\n- Something Must Be Done About Appomattox County (Part 1)
\n\n\n\n- What’s the Big Deal, Anyway (Part 2)
\n\n\n\n- No, the Contract Doesn’t Protect the School from Creditors (Part 3)
\n\n\n\n- The County Keeps Digging Holes (Part 4)
\n\n\n\n- The Problem Really isn’t Mr. Boone. It’s Bad Governance. (Part 5)
\n\n\n\n- What Should We Do, Appomattox County? (Part 6)
\n
The direct and unfortunate answer is: It is almost certainly too late for the County to terminate the lease now and shield it from the Trustee. The moment Mr. Boone’s bankruptcy was filed, an Automatic Stay (like a forcefield), was erected around his assets, and this lease option is now considered one of them. The County’s … Read more
\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-422","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts/422","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts"}],"about":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/types/post"}],"author":[{"embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/users/1"}],"replies":[{"embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/comments?post=422"}],"version-history":[{"count":0,"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts/422/revisions"}],"wp:attachment":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/media?parent=422"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories?post=422"},{"taxonomy":"post_tag","embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/tags?post=422"}],"curies":[{"name":"wp","href":"https://api.w.org/{rel}","templated":true}]},"_embedded":{"wp:term":[[{"id":1,"link":"https://cms.nasimpson.com/category/uncategorized/","name":"Uncategorized","slug":"uncategorized","taxonomy":"category","_links":{"self":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories/1","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories"}],"about":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/taxonomies/category"}],"wp:post_type":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts?categories=1"},{"href":"https://cms.nasimpson.com/wp-json/wp/v2/media?categories=1"}],"curies":[{"name":"wp","href":"https://api.w.org/{rel}","templated":true}]}}],[]]}},{"id":411,"date":"2025-07-22T02:25:27","date_gmt":"2025-07-22T06:25:27","guid":{"rendered":"https://cms-nasimpson.goingblu.com/?p=411"},"modified":"2025-10-09T07:06:56","modified_gmt":"2025-10-09T11:06:56","slug":"whats-the-big-deal-anyway-part-2","status":"publish","type":"post","link":"https://cms.nasimpson.com/2025/07/22/whats-the-big-deal-anyway-part-2/","title":{"rendered":"What’s the Big Deal, Anyway (Part 2)"},"content":{"rendered":"\n\n\n\n\n
The plaintiff in 6:25-ap-06005, Matthew W. Cheney, is not just another creditor. He is the Acting United States Trustee, a federal official from the Department of Justice. His job is to be the “watchdog of the bankruptcy system,” and his office only intervenes in cases involving significant suspected fraud, dishonesty, or abuse of the system.
This is the government itself suing to deny the Boones’ bankruptcy discharge. It is the most serious challenge a debtor can face.
\n\n\n\nIn July 2022, Appomattox County executed a Lease and Purchase Option Agreement with ACA.
\n\n\n\nThe Bankruptcy Trustee (Katz) will step into the shoes of “ACA” and use these clauses for the bankruptcy estate’s benefit: maximizing money for the creditors. Here is the most likely path forward:
\n\n\n\nStep 1: The Trustee Seizes the Option
The Trustee gets a court order declaring that ACA is Mr. Boone’s alter ego and that the entire Lease and Purchase Option Agreement now belongs to the bankruptcy estate. The Trustee is now, for all legal purposes, “ACA.”
Step 2: The Trustee Markets the Property, Ignoring the $250k Price
The Trustee will not simply exercise the option for $250,000. That doesn’t maximize value. Instead, he will market the right to purchase the property or the property itself to outside bidders (developers, investors, etc.). He will solicit “bona fide written offers.”
Step 3: The Trustee Receives an Offer
A developer, seeing the 16 acres and the building, makes a formal, written offer to the Trustee to purchase the property for $750,000. The Trustee, in his duty to the creditors, “intends to accept” this offer.
Step 4: The Trustee Triggers the Right of First Refusal (ROFR)
As required by Section 29, the Trustee now turns to Appomattox County and provides them with a copy of the $750,000 offer. He notifies them that they have 15 business days to exercise their Right of First Refusal.
Step 5: The County’s Terrible Choice
The County is now caught in a trap of its own making:
The Board of Supervisors, likely thinking they were helping a local non-profit, gave away an incredibly valuable right. They essentially gave ACA a lottery ticket, the ability to buy a valuable asset for a fraction of its utility value to the community, and that lottery ticket is about to be cashed in by a federal Trustee.
\n\n\n\n\n\n","protected":false},"excerpt":{"rendered":"Something Must Be Done About Appomattox County
\n\n\n\nPosts in this Series:
\n\n\n\n\n
\n- Something Must Be Done About Appomattox County (Part 1)
\n\n\n\n- What’s the Big Deal, Anyway (Part 2)
\n\n\n\n- No, the Contract Doesn’t Protect the School from Creditors (Part 3)
\n\n\n\n- The County Keeps Digging Holes (Part 4)
\n\n\n\n- The Problem Really isn’t Mr. Boone. It’s Bad Governance. (Part 5)
\n\n\n\n- What Should We Do, Appomattox County? (Part 6)
\n
The plaintiff in 6:25-ap-06005, Matthew W. Cheney, is not just another creditor. He is the Acting United States Trustee, a federal official from the Department of Justice. His job is to be the “watchdog of the bankruptcy system,” and his office only intervenes in cases involving significant suspected fraud, dishonesty, or abuse of the system. This … Read more
\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-411","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts/411","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts"}],"about":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/types/post"}],"author":[{"embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/users/1"}],"replies":[{"embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/comments?post=411"}],"version-history":[{"count":0,"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts/411/revisions"}],"wp:attachment":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/media?parent=411"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories?post=411"},{"taxonomy":"post_tag","embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/tags?post=411"}],"curies":[{"name":"wp","href":"https://api.w.org/{rel}","templated":true}]},"_embedded":{"wp:term":[[{"id":1,"link":"https://cms.nasimpson.com/category/uncategorized/","name":"Uncategorized","slug":"uncategorized","taxonomy":"category","_links":{"self":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories/1","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories"}],"about":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/taxonomies/category"}],"wp:post_type":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts?categories=1"},{"href":"https://cms.nasimpson.com/wp-json/wp/v2/media?categories=1"}],"curies":[{"name":"wp","href":"https://api.w.org/{rel}","templated":true}]}}],[]]}},{"id":403,"date":"2025-07-22T02:06:32","date_gmt":"2025-07-22T06:06:32","guid":{"rendered":"https://cms-nasimpson.goingblu.com/?p=403"},"modified":"2025-10-09T07:06:57","modified_gmt":"2025-10-09T11:06:57","slug":"something-must-be-done-about-appomattox-county-part-1","status":"publish","type":"post","link":"https://cms.nasimpson.com/2025/07/22/something-must-be-done-about-appomattox-county-part-1/","title":{"rendered":"Something Must Be Done About Appomattox County (Part 1)"},"content":{"rendered":"\nThere’s some confusing legal news about the deal for the old school, and I want to make it crystal clear. What sounds like good news is actually the worst-case scenario.
\n\n\n\n![\"\"](\"https://cms-nasimpson.goingblu.com/wp-content/uploads/2025/07/farm-animals-set-in-the-farming-background-cartoon-illustration-vector-1024x615.jpg\")
Imagine a local farmer, “Mr. Smith,” who has a special deal to use some vacant county owned farmland. His plan is to turn it into a community farm: a place where families can get fresh food, kids can learn about agriculture, and everyone benefits. The county supervisors love the idea. They lease the land to Mr. Smith’s non-profit for $1 for 7 years and sign a deal that says he can buy it later for $250,000, but only if he wants to. That means the land isn’t sold yet, but he has the first chance to buy it.
\n\n\n\nAfter the deal is signed, the county finds out that Mr. Smith has actually filed for bankruptcy. The county board is concerned, but they think since the option is held by a non-profit, it would be completely separate from Mr. Smith. The county opts to “wait and see.” They hear that two lawsuits against Mr. Smith from people he owes money to have been “dismissed.” They announce this as great news, thinking, “Wonderful! Mr. Smith’s problems are over, and our community farm is safe!”
\n\n\n\nMr. Smith’s main business has completely collapsed because he owes money to over 100 people and businesses. Two private lawsuits against him were dropped only because the debts were moved into his bankruptcy case, where he has already admitted he owes millions of dollars.
\n\n\n\nNow, the Department of Justice has stepped in. The United States Federal Government is suing Mr. Smith, not for money, but to declare him financially irresponsible due to alleged fraud. This is the worst possible news for the community farm.
\n\n\n\nIf the government wins, a federal Trustee is appointed. This Trustee’s only job is to sell off everything Mr. Smith owns to pay back the 100+ creditors. The Trustee will look at that valuable land option and say: “A community farm doesn’t pay creditors. I am legally required to seize this deal.”
\n\n\n\nHe will then force the purchase of the land and immediately sell it at auction to the highest bidder. A housing developer may outbid everyone, and our community farm will be replaced by a subdivision.
\n\n\n\nThe man with the purchase option is “Mr. Boone” His business has failed, and the government is now involved. The “dismissed” lawsuits are not victories; they are proof of his deep financial trouble.
\n\n\n\nA federal Trustee is about to be empowered to seize the option to purchase the school, ignore the community benefit, and sell our property to the highest bidder for development. The school’s future is in more danger than ever. Our leaders must understand this reality and act to protect our community’s asset.
\n\n\n\n\n\n","protected":false},"excerpt":{"rendered":"Something Must Be Done About Appomattox County
\n\n\n\nPosts in this Series:
\n\n\n\n\n
\n- Something Must Be Done About Appomattox County (Part 1)
\n\n\n\n- What’s the Big Deal, Anyway (Part 2)
\n\n\n\n- No, the Contract Doesn’t Protect the School from Creditors (Part 3)
\n\n\n\n- The County Keeps Digging Holes (Part 4)
\n\n\n\n- The Problem Really isn’t Mr. Boone. It’s Bad Governance. (Part 5)
\n\n\n\n- What Should We Do, Appomattox County? (Part 6)
\n
There’s some confusing legal news about the deal for the old school, and I want to make it crystal clear. What sounds like good news is actually the worst-case scenario. The Analogy: The Town’s Community Farm Imagine a local farmer, “Mr. Smith,” who has a special deal to use some vacant county owned farmland. His … Read more
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a New Foundation: Data Center jobs and tax revenue will provide a solid footing for Appomattox to retool and regain relevance in the 21st century."},"content":{"rendered":"\n\n\n\n\nThe industrial park in Appomattox was set aside for industrial use decades ago. Historically, our community has seen notable employers come and go—the Southern Battery Co. in the 1930s, the Appomattox Garment Co. from the 1950s through the 1970s, and Thomasville from the 1970s into the 2000s. These companies offered tangible economic benefits, providing jobs, income, and a stable tax base. However, the global economy has shifted, and the days of a major manufacturing plant setting up shop in a rural locality without an interstate highway are increasingly rare.
\n\n\n\n![\"\"](\"https://cms-nasimpson.goingblu.com/wp-content/uploads/2024/12/rlawson-764x1024.jpg\")
![\"\"](\"https://cms-nasimpson.goingblu.com/wp-content/uploads/2024/12/sbc.jpg\")
![\"\"](\"https://cms-nasimpson.goingblu.com/wp-content/uploads/2024/12/thomasville.jpg\")
The question that often arises now is: Why data centers? The answer is straightforward—data centers represent the modern backbone of global commerce and communication. Companies like Facebook and Microsoft rely on these facilities to store, process, and deliver the digital content that most of us use every day. In other words, data centers are the 21st-century equivalent of a factory, except instead of producing physical goods, they produce and manage information at tremendous scale.
\n\n\n\nAs for employment, the notion that a large data center would somehow create fewer than ten jobs is simply incorrect. Typical staffing scales at roughly one full-time equivalent (FTE) per megawatt of capacity. A substantial data center can employ hundreds of individuals in a range of roles—technicians, facility managers, security personnel, and more. The construction phase alone involves over a thousand skilled tradespeople: excavation crews, electricians, plumbers, paving specialists, low-voltage installers, and fencing contractors. These are real, tangible jobs that pay local workers and support local businesses.
\n\n\n\nBeyond employment, the tax benefits are significant. With billions in equipment and real estate investment, the data center will generate nearly $20 million annually in local revenue. These funds return directly to the community—improving infrastructure, bolstering schools, establishing reserve funds, and potentially easing the tax burden on residents. The project would also immediately return $5 million to the County Economic Development Authority through the land sale and then place 450 acres back on the tax rolls, ensuring a steady financial contribution long into the future.
\n\n\n\nSome critics raise concerns about land use, but it’s important to remember that this is not farmland or residential property being converted; it is an industrial park designated for precisely this kind of development. For two decades, this property has stood ready for industrial tenants, and concerns arising only now suggest a reluctance to embrace the future rather than any genuine zoning issue.
\n\n\n\nEqually, fears about solar panels are misplaced. While certain solar projects in rural areas have raised questions about environmental impact, the scenario here is entirely different. In an industrial setting, any solar installation is minor and integrated into a built environment that already accounts for stormwater runoff, wildlife impact, and long-term remediation. A few rooftop panels or a small lot installation do not equate to the sprawling solar farms that have rightly drawn scrutiny elsewhere.
\n\n\n\nIt’s not that solar power is some utopian tech that’s never going to happen—it’s just that data centers are basically insatiable electricity monsters, and they don’t care about the sun’s schedule. A datacenter wants a stable, continuous current, 24/7, no downtime, period. But solar output peaks for 4-6 hours max in central Virginia—beyond that, your generation curve falls off a cliff. You end up with this big, daily energy sine wave that’s basically useless to a load profile that’s just a flat line at “always on” and “always more.”
\n\n\n\nIt’s not just a matter of stacking more panels, either. That’ll give you more power at midday but doesn’t magically fill in the morning or evening gaps. You’d need storage—insane amounts of it—to hold energy from peak sun and dole it out all night. Current battery tech is pricey, supply chains are dicey, and even then, you’re turning a relatively simple AC feed into a multi-step chain of solar DC input, battery charge/discharge cycles, and inversion back into AC for the servers. The losses stack up like an infinite regress of inefficiency, and before long, you’re in a Beckett play waiting for some technical breakthrough that never shows up—like waiting for Godot, but with lithium packs.
\n\n\n\nPlus, factor in maintenance overhead, weather variability, and load fluctuations. The real grid’s not some neat puzzle you can solve by plastering the landscape with PV panels. To make solar reliably feed a datacenter, you’d have to over-engineer the entire power infrastructure. At that point, you’re spending a ridiculous amount of money and complexity just to pretend you’re doing something straightforward, like covering a constant load with a predictable supply. Instead, you have this resource that, by nature, peaks when it wants to, not when you need it. The mismatch is fundamental—without a massive revolution in storage, you’re basically locked out from pure solar solutions. It’s like trying to align the tech’s diurnal curve with the never-ending hunger of a digital facility—two lines that will never truly meet.
\n\n\n\nAddressing utilities such as water and power is a broader issue that the county must face regardless. Past reluctance to invest in a reservoir or water treatment infrastructure should not dictate present decisions. Modern development—be it a data center or any large enterprise—requires consistent utilities. Negotiations with local authorities, state permits, and utility companies are already underway, and data center projects can accelerate much-needed infrastructure upgrades that benefit everyone.
\n\n\n\nUltimately, the question comes down to what kind of economic future Appomattox wants to build. Nostalgia for mid-20th-century manufacturers cannot override the realities of the modern economy. Data centers offer long-term stability, jobs, and substantial revenue, with comparatively modest demands on land already designated for industrial use. If not data centers, what then? Without embracing contemporary opportunities, the county risks stagnation and continued reliance on an outdated vision of economic development that may never return.
\n\n\n\nIn short, this project aligns with the intended purpose of the industrial park, delivers meaningful employment and revenue, and positions Appomattox to participate in the digital economy that underpins so much of today’s world. The choice is between seizing this opportunity or clinging to an economic model that no longer fits our reality.
\n\n\n\n\n","protected":false},"excerpt":{"rendered":"The industrial park in Appomattox was set aside for industrial use decades ago. Historically, our community has seen notable employers come and go—the Southern Battery Co. in the 1930s, the Appomattox Garment Co. from the 1950s through the 1970s, and Thomasville from the 1970s into the 2000s. These companies offered tangible economic benefits, providing jobs, … Read more
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Development","slug":"economic-development","taxonomy":"post_tag","_links":{"self":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/tags/62","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/tags"}],"about":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/taxonomies/post_tag"}],"wp:post_type":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts?tags=62"},{"href":"https://cms.nasimpson.com/wp-json/wp/v2/media?tags=62"}],"curies":[{"name":"wp","href":"https://api.w.org/{rel}","templated":true}]}}]]}},{"id":345,"date":"2024-11-29T11:49:30","date_gmt":"2024-11-29T16:49:30","guid":{"rendered":"https://cms-nasimpson.goingblu.com/?p=345"},"modified":"2025-10-09T07:06:57","modified_gmt":"2025-10-09T11:06:57","slug":"application-and-limitations-of-virginia-code-%c2%a7-15-2-1400d-on-local-governing-bodies-authority","status":"publish","type":"post","link":"https://cms.nasimpson.com/2024/11/29/application-and-limitations-of-virginia-code-%c2%a7-15-2-1400d-on-local-governing-bodies-authority/","title":{"rendered":"Application and Limitations of Virginia Code § 15.2-1400(D) on Local Governing Bodies’ Authority"},"content":{"rendered":"\nVirginia Code § 15.2-1400(D) grants local governing bodies the authority to “punish or fine a member of the governing body for disorderly behavior.” While this provision appears straightforward, its application is complex and constrained by broader legal principles, including constitutional rights and state statutes. This article examines the limitations of this statute within the context of Virginia law, constitutional protections, and practical governance.
\n\n\n\nLocal governing bodies play a crucial role in the administration of municipalities across Virginia. To maintain order and decorum, these bodies are vested with certain powers. Virginia Code § 15.2-1400(D) provides that “a governing body may punish or fine a member of the governing body for disorderly behavior.” At face value, this statute seems to offer broad authority. However, its practical application is limited by constitutional safeguards, established legal principles, and the absence of specific procedural guidelines.
\n\n\n\nVirginia strictly adheres to Dillon’s Rule, a legal principle that confines local governments to powers explicitly granted by the state legislature, those necessarily implied, and those essential to the municipality’s objectives. In City of Virginia Beach v. Hay, 258 Va. 217 (1999), the Virginia Supreme Court reaffirmed this doctrine, emphasizing that any ambiguity in the powers of a municipality must be resolved against the municipality.
\n\n\n\nWhile § 15.2-1400(D) authorizes punishment or fines for disorderly behavior, it does not delineate the procedures for implementing such actions. Under Dillon’s Rule, this absence of procedural detail is significant. Local governments cannot assume powers or processes not expressly granted, which limits their ability to enforce fines or punishments without clear legislative guidance.
\n\n\n\nAny punitive action against an elected official implicates due process rights under the Fourteenth Amendment of the U.S. Constitution and Article I, Section 11 of the Virginia Constitution. Elected officials have a property interest in their position and compensation. In Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the U.S. Supreme Court held that individuals cannot be deprived of such interests without appropriate procedural safeguards.
\n\n\n\nPunishing an elected official for their speech or actions during the course of their duties raises First Amendment concerns. In Bond v. Floyd, 385 U.S. 116 (1966), the Supreme Court held that legislators have the right to speak on issues without fear of retaliation, as it is essential for representing their constituents’ interests.
\n\n\n\nThe principle of popular sovereignty, enshrined in Article I, Section 2 of the Virginia Constitution, asserts that all government power derives from the people. Actions that effectively remove or incapacitate an elected official undermine the electorate’s will and may violate this foundational concept.
\n\n\n\nThe statute does not provide mechanisms for enforcing fines against elected officials. Local governing bodies lack judicial authority to compel payment, and attempting to do so may overstep their legislative function.
\n\n\n\nLocal councils primarily serve legislative roles. Imposing fines or punishments involves judicial or executive actions, raising separation of powers concerns. Allowing a legislative body to act as judge and enforcer blurs these critical governmental distinctions.
\n\n\n\nA censure is a formal statement of disapproval but does not carry legal penalties. In In re Perry, 60 S.W.3d 857 (Tex. 2001), it was established that censures are symbolic and do not infringe upon the rights or duties of the elected official.
\n\n\n\nCensures are generally considered permissible under the First Amendment as government speech. In Houston Community College System v. Wilson, 595 U.S. (2022), the Supreme Court held that a censure did not violate the First Amendment rights of an elected trustee, as it constituted protected government speech.
\n\n\n\nThe broad language of § 15.2-1400(D) without specific limits raises concerns about potential misuse. Without clear guidelines, there is a risk that a majority could impose excessive fines or punishments on minority members, stifling dissent and robust debate essential to democracy.
\n\n\n\nThe threat of punishment or fines may deter elected officials from speaking freely, especially on contentious issues. This chilling effect undermines the democratic process by inhibiting representatives from fully advocating for their constituents.
\n\n\n\nConsider a scenario where a local council fines a member an exorbitant amount for “disorderly behavior,” with payment due in an unreasonably short period. Such action, lacking procedural fairness and clear standards, would likely be challenged on constitutional grounds.
\n\n\n\nWhile Virginia Code § 15.2-1400(D) grants local governing bodies the power to punish or fine members for disorderly behavior, this authority is significantly constrained. Constitutional protections, particularly concerning due process and free speech, limit the practical application of punitive measures beyond symbolic censures. The absence of specific procedural guidelines further restricts local bodies under Dillon’s Rule.
\n\n\n\nTo prevent potential abuses and uphold democratic principles, there is a pressing need for legislative clarification. Clear statutes outlining permissible actions, procedures, and safeguards are essential. Until then, local governing bodies should exercise caution, relying primarily on censures and ensuring that any actions taken do not infringe upon constitutional rights or undermine the electorate’s will.
\n\n\n\nAbstract Virginia Code § 15.2-1400(D) grants local governing bodies the authority to “punish or fine a member of the governing body for disorderly behavior.” While this provision appears straightforward, its application is complex and constrained by broader legal principles, including constitutional rights and state statutes. This article examines the limitations of this statute within the … Read more
\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[41],"tags":[],"class_list":["post-345","post","type-post","status-publish","format-standard","hentry","category-virginia-government"],"_links":{"self":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts/345","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts"}],"about":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/types/post"}],"author":[{"embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/users/1"}],"replies":[{"embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/comments?post=345"}],"version-history":[{"count":0,"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts/345/revisions"}],"wp:attachment":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/media?parent=345"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories?post=345"},{"taxonomy":"post_tag","embeddable":true,"href":"https://cms.nasimpson.com/wp-json/wp/v2/tags?post=345"}],"curies":[{"name":"wp","href":"https://api.w.org/{rel}","templated":true}]},"_embedded":{"wp:term":[[{"id":41,"link":"https://cms.nasimpson.com/category/virginia-government/","name":"Virginia Government","slug":"virginia-government","taxonomy":"category","_links":{"self":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories/41","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/categories"}],"about":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/taxonomies/category"}],"wp:post_type":[{"href":"https://cms.nasimpson.com/wp-json/wp/v2/posts?categories=41"},{"href":"https://cms.nasimpson.com/wp-json/wp/v2/media?categories=41"}],"curies":[{"name":"wp","href":"https://api.w.org/{rel}","templated":true}]}}],[]]}},{"id":332,"date":"2024-10-20T06:11:31","date_gmt":"2024-10-20T10:11:31","guid":{"rendered":"https://cms-nasimpson.goingblu.com/?p=332"},"modified":"2025-10-09T07:06:57","modified_gmt":"2025-10-09T11:06:57","slug":"the-case-for-treating-virginia-constitutional-officers-as-corporations-sole","status":"publish","type":"post","link":"https://cms.nasimpson.com/2024/10/20/the-case-for-treating-virginia-constitutional-officers-as-corporations-sole/","title":{"rendered":"The Case for Treating Virginia Constitutional Officers as Corporations Sole"},"content":{"rendered":"\nIn Virginia, certain public officials, known as constitutional officers, occupy critical roles in state and local governance. These officers, which include sheriffs, clerks of court, commissioners of the revenue, treasurers, and Commonwealth’s attorneys, are independently elected and serve distinct governmental functions. This paper explores the legal theory that Virginia constitutional officers can, and perhaps should, be understood as corporations sole—a legal structure where an office, rather than an individual, is vested with certain legal rights and responsibilities that persist across officeholders.
\n\n\n\nWhile Virginia law does not currently categorize constitutional officers as corporations sole, many of the practical aspects of their roles align with the characteristics of this legal entity. This article argues that recognizing constitutional officers as corporations sole could clarify their legal status and provide a framework for understanding their unique position within the structure of Virginia government.
\n\n\n\nA corporation sole is a legal entity created to hold property and perform duties in perpetuity through successive officeholders. Historically, this concept has been used to structure ecclesiastical and religious offices, such as bishops, where the office itself is vested with legal authority, independent of the person holding the office at any given time. Key characteristics of a corporation sole include:
\n\n\n\nThese attributes ensure that the office retains a separate legal identity, maintaining the rights, powers, and duties of the position, regardless of changes in personnel.
\n\n\n\nVirginia constitutional officers operate with a level of autonomy and responsibility that mirrors many of the functions of a corporation sole. For example, sheriffs in Virginia are responsible for the management of county jails, law enforcement, and court security. These functions are tied to the office of the sheriff, not the individual holding the position. The office itself possesses legal authority that persists beyond any single officeholder, as demonstrated by several key factors:
\n\n\n\nWhile Virginia law does not formally designate constitutional officers as corporations sole, the functional independence, legal continuity, and asset control exercised by these officers closely aligns with the traditional attributes of such an entity. In particular, the ability of these offices to manage budgets, enter into contracts, and exercise legal responsibilities independent of the officeholder mirrors the characteristics of a corporation sole.
\n\n\n\nConstitutional officers, especially sheriffs, exhibit legal continuity across successive officeholders. The office continues to exist and function regardless of changes in personnel, ensuring the continuity of legal responsibilities and authority. This continuity is a hallmark of the corporation sole model, wherein the office, not the individual, holds legal authority that persists over time. For example, the sheriff’s office retains legal custody over inmates, control over property, and ongoing legal obligations regardless of the identity of the current sheriff.
\n\n\n\nIn terms of autonomy, many constitutional officers operate independently from other governmental entities, particularly in matters of budgeting, personnel, and policy implementation. Sheriffs, for instance, have discretion over the allocation of their budget, operational decisions regarding law enforcement, and the management of county jail facilities. This degree of autonomy reinforces the idea that the office functions as a separate entity with legal personhood.
\n\n\n\nThe capacity of constitutional officers to enter into contracts, hold property, and engage in legal transactions in the name of the office further supports the corporation sole theory. The fact that contracts are signed and insurance policies are held in the name of “Office of the Sheriff” or “Clerk of Court” demonstrates that these offices are treated as distinct legal entities for transactional purposes. Moreover, constitutional officers can be sued or bring suit in their official capacity, further underscoring the legal separation between the individual officeholder and the office itself.
\n\n\n\nThis functional separation of the office from the individual is a key characteristic of a corporation sole. Just as a corporation sole allows for a continuous legal entity to hold property and engage in legal actions while transcending individual officeholders, constitutional officers in Virginia manage governmental functions that endure beyond any single officeholder’s term, ensuring the uninterrupted execution of duties and obligations.
\n\n\n\nThe procedural safeguards surrounding the removal of constitutional officers further emphasize the distinct status of the office itself. Under Virginia law, a constitutional officer may only be removed from office through a petition to a circuit court, requiring judicial oversight and intervention. This process reflects the enduring nature of the office and mirrors the procedures associated with corporations sole, where the officeholder is distinct from the office, and removal requires formal legal mechanisms.
\n\n\n\nFurthermore, the orderly succession of officeholders upon election or removal highlights the continuity of the office itself. When a new sheriff takes office, they immediately inherit the legal authority, responsibilities, and assets of the office, similar to the way a corporation sole operates. This seamless transition of powers reinforces the idea that the office, not the individual, is the true legal entity.
\n\n\n\nRecognizing Virginia constitutional officers as de facto corporations sole would provide legal clarity and better reflect the realities of how these offices operate. It would formalize the legal personhood of these offices, establishing a framework in which the office itself, rather than the officeholder, holds legal rights, responsibilities, and liabilities. This approach would also help clarify legal relationships involving constitutional officers, particularly in matters of contract law, property ownership, and liability.
\n\n\n\nAdditionally, treating constitutional officers as corporations sole could enhance the accountability and transparency of these offices. For example, by establishing that the office itself is responsible for contractual obligations, legal liabilities, and the management of assets, there would be a clear separation between the officeholder’s personal legal exposure and the official actions taken in the name of the office. This could lead to more precise legal standards governing the conduct of constitutional officers, and in turn, strengthen the public’s trust in these positions.
\n\n\n\nMoreover, this legal framework would help streamline the transition between officeholders. The recognition of an office as a corporation sole would codify the principle that the office’s legal obligations and rights persist independently of any individual officeholder. Successive officeholders would take on the office’s ongoing contracts, liabilities, and responsibilities without interruption, ensuring continuity in governance.
\n\n\n\nWhile Virginia law does not currently recognize constitutional officers as corporations sole, there is a strong theoretical and practical basis for such a classification. The autonomy, continuity, and legal personhood that constitutional officers, particularly sheriffs, exercise in practice mirror many of the defining characteristics of a corporation sole. Recognizing constitutional officers as corporations sole would align Virginia law with the realities of how these offices operate, providing legal clarity and ensuring the proper separation of officeholder and office.
\n\n\n\nBy formally recognizing constitutional officers as de facto corporations sole, Virginia could create a legal framework that more accurately reflects the nature of these offices, ensuring that they are treated as enduring entities with distinct legal rights and responsibilities, independent of the individual officeholders who temporarily occupy them. Such a legal evolution would clarify the role of constitutional officers in government, enhance transparency, and preserve the continuity of governance across successive officeholders.
\n","protected":false},"excerpt":{"rendered":"Introduction In Virginia, certain public officials, known as constitutional officers, occupy critical roles in state and local governance. These officers, which include sheriffs, clerks of court, commissioners of the revenue, treasurers, and Commonwealth’s attorneys, are independently elected and serve distinct governmental functions. This paper explores the legal theory that Virginia constitutional officers can, and perhaps … Read more
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