Will the performance of the Arlington County government addressing the COVID-19 public-health situation become fodder for November’s general election?
A candidate who already is on the ballot is pressing the case that it should.
Audrey Clement, who has been running campaigns for elected office for more than a decade, said last week that the County Board failed to use its powers to force restaurants to close in the earliest days of the crisis.
In mid-March, the county government urged restaurants and bars to voluntarily close, but said it did not have the power to order them shuttered. Clement disagrees, saying the power exists for localities within the Code of Virginia, so they do not require authority from the state government to act on.
“While Arlington County government routinely hides behind the Dillon Rule to evade its responsibilities, failure to close bars and restaurants timely was particularly egregious,” said
Clement, who has filed the requisite paperwork to be on the Nov. 3 ballot for County Board.
(The “Dillon Rule” is shorthand for Virginia’s governance structure, which gives localities very limited inherent powers unless they are delegated from the state level. It is named after a 19th-century federal judge who opined that while the U.S. Constitution mentions the federal government, state governments and citizens, it is silent on localities . . . and thus they have no inherent powers. Virginia is among a minority of states, mostly in the South but some in the West, that have held tight to that interpretation, aggregating power at the state level.)
Many restaurants followed the request of the county government to cease operations, but were not required to close until Gov. Northam some days later severely curtailed occupancy inside eateries (effectively limiting them to carry-out and delivery) in an effort to contain the spread of the virus, which appears to be most pronounced in urban corridors.
Clement cited Title 44 of the Code of Virginia in making her case that the Arlington government has the power to regulate establishments, including shutting them down. County Board Chairman Libby Garvey, however, retorted that it was not so simple.
“While some legal opinions were that we had the legal authority to close bars and restaurants, others thought we did not in this case,” Garvey said, adding that – while it was “not uppermost in our minds” – the local government potentially could have faced liability if restaurants sued for lost revenue if it overstepped its powers.
The bigger issue, Garvey said, was to present a united front among Northern Virginia jurisdictions.
“The major problem with Arlington going alone to close bars and restaurants is that we do not exist in a vacuum,” she told the Sun Gazette. “Should Fairfax and Alexandria and Falls Church have continued to have their bars and restaurants open, it would only have encouraged our residents to go there, and the problem of viral spread would still exist.”
Northam – a physician – has received a mix of praise and criticism for taking less draconian steps than some other governors to address the health issue. Garvey is among those wishing for more.
“The governor acted more slowly and less aggressively than I think any of us would have liked [on the restaurant issue],” she said. “We have urged, and continue to urge, the governor to act as aggressively and firmly as he can.”
Clement may or may not be the lone opposition to the Democratic nominee for County Board. Who that nominee will be remains up in the air – Democrats are slated to choose in a June primary between Garvey, who has served in office since 2012 and is serving as chairman for 2020, and challenger Chanda Choun in a race that has been overshadowed by the public-health crisis.
If the victor in the primary is Garvey, the 2020 general election will mark the fourth time she and Clement have faced each other at the ballot box. Previously:
• In a 2012 County Board special election to fill the seat of Barbara Favola, who had been elected to the state Senate, Clement finished third behind Garvey (then a member of the School Board) and Republican Mark Kelly.
• In the general election held later that year, Clement finished third behind Garvey and Republican Matt Wavro.
• In the 2016 general election – a one-on-one matchup – Garvey received 70 percent of the vote, Clement 27 percent.
Clement’s complaint that the county government used the Dillon Rule to avert taking direct action is not unique, although connecting it to the COVID-19 crisis may be. Over the years, advocates for affordable-housing and tree-preservation efforts have criticized county officials for not fully using powers delegated by the state government.
Often, in response, county officials said those critics should take their concerns to Richmond and lobby to gain more powers for local governments.