Virginia’s limits on local authority are becoming “more intrusive” for Fairfax County, board chair says

Fairfax County Board of Supervisors Chair Jeff McKay (file photo)

Fairfax County deserves more local authority, Board of Supervisors Chairman Jeff McKay says, calling Virginia’s Dillon Rule “increasingly more intrusive” in day-to-day operations.

The Dillon Rule dictates that localities only have the authority to create laws, set guidelines, and wield power if the state expressly grants it to them.

However, McKay argues this system treats counties as so “unsophisticated” that they need the state to make decisions for them — an assumption that seems particularly outdated for a locality like Fairfax County, which is home to nearly 1.2 million people and an annual budget of $4.7 billion.

“It’s a…broken, inconsistent, and non-responsive system for our constituents that needs modernization,” McKay told FFXnow. “Every time we need something, we’ve got to go to Richmond and beg because most [Virginia] localities don’t need or want that authority. And that’s a problem.”

McKay told Axios D.C. last month that he wanted the county to have more control over its destiny, including the option to levy personal income taxes.

He calculated that Fairfax County only gets 23 cents for each dollar it pays in state taxes. While some disputed that exact calculation, McKay says the county sends enough revenue to the state that it should have more authority to determine how it’s generated.

I think the county should have the authority to levy any tax that they want and let their voters hold them accountable,” he said. “The state should not be telling them, ‘You can’t raise revenue this way or that way or any other way.’”

If allowed to do this, he would consider a personal income tax as a means to lower — or, even, eliminate — the real estate tax, which provides over $3 billion, or roughly 68% of the county’s annual revenue. He says it would be a fairer, more equitable, and less risky way of raising revenue.

The Dillon Rule’s restrictions on local authority go beyond taxes, hampering day-to-day operations of the county, McKay says, arguing that the “one-size-fits-all” mentality of governing no longer works in a state where counties are diverse in size, population, and budgets.

For instance, rewinding to 2020, McKay says he and other Northern Virginia leaders had to “compel” then-governor Ralph Northam to delay rolling back Covid restrictions in the region.

At the time, Fairfax County’s infection numbers were a lot closer to those in D.C. and Montgomery County than to Roanoke or smaller Virginia localities. Yet, while D.C. and suburban Maryland could keep their covid restrictions in place, Northern Virginia was initially on the same timeline as the rest of the Commonwealth.

“I didn’t have the same authority that they had to do what they were doing,” McKay said. “I was beholden to negotiating, in essence, with the governor about what was in the best interest of Fairfax County.”

McKay says the Dillon Rule is also a factor in the case of the Glasgow Middle School counselor who was arrested last year for a sex crime but stayed employed by Fairfax County Public Schools for months after.

“Another example of a challenge in my community that…fell through the cracks because of a lack of detail, lack of aggressiveness, and lack of awareness of what the Virginia standard or requirements are for localities reporting these incidents,” he said.

In addition to advocating for a centralized, statewide notification system, county and school leaders are looking into the FBI’s Rap Back program, which notifies employers if a worker’s fingerprints are added to its database in connection with criminal activity. However, FCPS can’t join unless the entire state enrolls.

As reported last week, McKay also cited the conflict between FCPS’ policies on the treatment of transgender and other gender-nonconforming students and those proposed by Gov. Glenn Youngkin’s administration as another example of local authority being usurped by state lawmakers.

Even on less contentious matters, the Dillon Rule has slowed down the county’s ability to act, McKay says. It took at least five years for the General Assembly to allow the installation of solar panels on a county-owned closed landfill in Lorton.

“The idea that we couldn’t be greener sooner because the state didn’t give us express permission to do that was terribly frustrating to me,” McKay said. “We literally could not use the property that we own for what we want to do with it, that benefits Virginia, without getting General Assembly approval.”

If the county decides to address ongoing trash service issues by franchising haulers, that again would require a change in Virginia state code and another visit to the General Assembly.

When he tells residents that even some of the most basic county functions have to be approved by state officials, they often find it “maddening.”

“This is a problem of a part-time legislature in Richmond who likes the authority that they have to create one size fits all answers,” he said. “And we’re left holding the pieces.”

But a reevaluation of how the Dillion Rule is used in Virginia appears unlikely to happen anytime soon.

Del. Paul Krizek (D-44) told Axios D.C. last month that ceding the power as McKay suggested is a “non-starter” that he doesn’t envision coming up in the General Assembly anytime soon. McKay said he’s not surprised by state lawmakers’ reluctance to change.

“They love their lever of control, and in essence, for it to go away, you’d be asking people who think they have control to cede that control,” he said.

McKay conceded that there are smaller towns, cities, and counties in Virginia that don’t want or need the type of authority that Fairfax County is seeking.

He proposes that maybe localities over a certain size or budget could have more decision-making powers — or, over time, there will be perhaps an “annual erosion” of the Dillon Rule.

“The members of the Board of Supervisors and the 12 members of the school board…have a much better pulse on what’s going on and the day-to-day lives of our residents than people at the state level who may have never even visited Fairfax County,” McKay said. “I think [local authority] is important for effectiveness, efficiency, and direct representation.”

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