July 17, 2006

The Honorable Timothy M. Kaine

Governor of Virginia

Patrick Henry Building

1111 East Broad Street
Richmond, Virginia 23219

 Dear Governor Kaine:

 I write to you in my capacity as Keeper of the Rolls of the Commonwealth regarding the communication of your purported vetoes of §§ 4 -1.02, 4 -1.06 b., and 4 -6.01 b. of House Bill 5002, 2006 Special Session I.  Based on legal advice, it is my opinion that each of these purported vetoes does not constitute an item as required by Article V, Section 6 of the Constitution of Virginia.  As a result, it is my duty not to publish these purported vetoes for the reasons set forth in this letter.¹

 § 4 -1.02

Section 4 -1.02 sets forth the process for the Governor to follow to reduce expenditures in the event of a revenue shortfall.

 In Brault v. Holleman, 217 Va. 441 (1976), the Supreme Court of Virginia stated as follows:

 Where a condition is attached to an appropriation, the condition must be observed. The Governor cannot veto the appropriation without also disapproving the condition; correspondingly, he cannot veto the condition without also disapproving the appropriation.

 In light of these requirements, it is clear that § 4 -1.02 as a whole constitutes a condition on all of the appropriations in House Bill 5002 that may be reduced in the event of a revenue shortfall.  The first sentence of § 4 -0.01 (the preamble to all of Part 4 of House Bill 5002) states that "[e]ach appropriating act of the General Assembly shall be subject to the following provisions and conditions, unless specifically exempt elsewhere in this act" (emphasis added).  All of the appropriations are conditional: (i) on revenues being sufficient; and (ii) if the revenues are insufficient, on the Governor withholding allocations in conformity with the procedures set forth in § 4 -1.02.

The Honorable Timothy M. Kaine

July 17, 2006

Page Two

 Accordingly, because the portion of House Bill 5002 covered under the purported veto of § 4 -1.02 constitutes less than an item in contravention of Article V, Section 6, I am duty-bound not to publish it.

§ 4 -1.06 b.

Section 4 -1.06 b. permits the Comptroller to authorize the disbursement of up to $3 million against appropriations of a subsequent fiscal year, when an emergency arises or when July 1 falls on a weekend.

Such disbursement potentially could be used to fund almost any of the appropriations in House Bill 5002.  As such it conditions and is intertwined with such appropriations.  Accordingly, for reasons previously stated, the portion of House Bill 5002 covered under the purported veto of § 4 -1.06 b. constitutes less than an item in contravention of Article V, Section 6, and I am duty-bound not to publish it.

§ 4 -6.01 b.

Section 4 -6.01 b., in conformity with § 2.2-201 of the Code of Virginia, mainly establishes the salaries of the Governor's Chief of Staff and Cabinet Secretaries at specific amounts.  The appropriations for these salaries are rolled up in various items throughout the budget bill according to the substantive secretariat involved.  Therefore it is clear that the purported veto of this section does not abolish these positions or take away the appropriation for their salaries.  Accordingly, in striking the specified salaries the purported veto attempts to strike a condition on the various aforementioned appropriations, namely the condition that the salaries for the positions in question be paid at a specific amount.  The official veto explanation's (i) assertion that the concern is about a different aspect of this section, and  (ii) pledge to pay the positions at the specified amounts is of no moment, because what the purported veto would strike is the legal requirement that the salaries be paid as specified.

Accordingly, for reasons previously stated, the portion of House Bill 5002 covered under the purported veto of § 4 -6.01 b. constitutes less than an item in contravention of Article V, Section 6, and I am duty-bound not to publish it.

Sincerely,

Bruce F. Jamerson

cc:       Members, General Assembly of Virginia

¹As you may know, sections §§ 4 -1.02 and 4 -1.06 b. are the same provisions that Governor Warner attempted to veto in 2004.  I could not enroll his purported vetoes of these sections in 2004 for the same reasons set forth in this letter.  Governor Warner did not attempt to veto § 4 -6.01 b.