June 4, 2008

The Honorable Timothy M. Kaine

Governor of Virginia

Patrick Henry Building, 3rd Floor

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 veto of § 4-6.01 b. of HB 30.[1]  Based on legal advice, it is my opinion that this purported veto does not comport with Article V, Section 6 of the Constitution of Virginia.  As a result, it is my duty not to publish this purported veto for the reasons set forth in this letter.

 Article V, Section 6 of the Constitution of Virginia permits the Governor to veto any item or items of an appropriation bill.  In Brault v. Holleman, 217 Va. 441 (1976), the Supreme Court of Virginia in defining an "item" stated as follows:

In the constitutional sense, an item of an appropriation bill is an indivisible sum of money dedicated to a stated purpose; the term refers to something which may be eliminated from the bill without affecting the enactment's other purposes or provisions. 

 While the Governor is empowered to veto any particular item or items of an appropriation bill, he must, for his veto to be valid, strike down the whole of an item; he cannot disapprove part of an item and approve the remainder. And this rule prevents the Governor from reducing the amount of an appropriation which by itself constitutes an item.

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.

Section 4-6.01 b., in conformity with § 2.2-201 of the Code of Virginia, mainly establishes salaries of the Governor's Chief of Staff and Cabinet Secretaries at a specific amount.  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 Governor's veto does not abolish these positions or take away the appropriation for their salaries.  (The Governor admits in his explanation for this purported veto that the "positions listed in this item will continue to be paid. . . " ).  Accordingly, in striking the specified salaries the Governor attempts to veto a condition on the various appropriations, namely the condition that the salaries for the positions in question be paid at a specific amount.  The Governor's assertion in his explanation that he is concerned about a different aspect of this section and his pledge to pay the positions at the specified amounts is of no moment, because what he has vetoed is the legal requirement that the salaries be paid as specified.

As stated above in Brault:

 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.

Accordingly, the portion of HB 30 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

[1] As you will recall, this section is the same section that you purportedly vetoed in 2006.  For the same reasons that I advised you of at that time, which are the same reasons set forth in this letter, I was unable to publish that veto.