State Board To Review Adoption Comments
On Wednesday, Dec. 14 at 1 p.m. at 1604 Santa Rosa Road, Richmond, VA, the State Board of Social Services is scheduled to review the final rules proposed for licensed child placing agencies.
Equality Virginia sent a letter to the board this week requesting an affirmative response to the positive comments received when the comment period was reopened for 30 days in September. The board had originally decided to drop proposed revisions that would ”prohibit acts of discrimination based on race, color, gender, national origin, age, religion, political beliefs, sexual orientation, disability, or family status.”
Read the full text of the letter below:
Dear Dr. Sood and Commissioner Brown:
On Wednesday, December 14, the Board of Social Services is scheduled to look once again at the final rules proposed for licensed child placing agencies.
Equality Virginia urges you to respond affirmatively to the thousands of public comments received during the 30 day additional comment period a majority of which clearly favored the adoption of rules preventing discrimination against prospective parents or children by licensed child placing agencies based on gender, political beliefs, sexual orientation, age, disability, family status, and religion as well as race and ethnicity.
You have the authority to do so, and it is the right thing to do.
The Board of Social Services has the power to adopt final regulations governing licensed child placing agencies, even over the objections of the Governor.
Only the Board, not the department, the Commissioner or even the Governor, can take action under the Administrative Process Act to enact or amend or withdraw a rule.
Section 2.2-4001 of the APA defines “agency” for all purposes of the Act to mean “any authority, instrumentality, officer, board or other unit of the state government empowered by the basic laws to make regulations or decide cases.” The same section says that “”[b]asic law” or “basic laws” means provisions of the Constitution and statutes of the Commonwealth authorizing an agency to make regulations or decide cases or containing procedural requirements therefor.”
The basic law applicable to the State Board, the Commissioner, and the Department of Social Services states clearly that only the Board has the authority to “adopt regulations” to which the Commissioner is subject and with which he is charged with enforcement. See, Sections 63.2-203, 63.2-216, and 63.2-217 of the Code of Virginia set forth below. The Board tells the Commissioner what the rules are, not vice versa.
The APA provides no authority for amendments to be made in proposed rules during the executive review phase without the Board’s concurrence and majority vote to approve them as amended prior to their promulgation in final form.
As the citizens appointed to this policy board, it is your job, not the Commissioner’s, to look at the advice you’ve been given, the public comments that have been made and decide what the final rule should be. The APA explicitly gives this Board the authority to adopt regulations notwithstanding any objections from the Governor. Section 2.2-4013 A. of the Code of Virginia:
Not less than fifteen days following the completion of the public comment period provided for in § 2.2-4007.03, the agency may (i) adopt the proposed regulation if the Governor has no objection to the regulation; (ii) modify and adopt the proposed regulation after considering and incorporating the Governor’s objections or suggestions, if any; or (iii) adopt the regulation without changes despite the Governor’s recommendations for change.
Action by the Board Must Be Taken In Open Session
In previous meetings, either the Board has gone into closed session to discuss policy matters related to these rules or the Board’s action appears to have been discussed before the meeting convened, resulting in action without any public discussion of the Board’s decision. Such close meeting or off the record discussions clearly violate the letter and the spirit of the Freedom of Information Act.
Equality Virginia urges you to have a full discussion of the proposed rules, the issues raised by the rules and the advice you have gotten from the Commissioner, the Governor and the Attorney General in open session on Wednesday, and asks that you take a vote on the rules only after such a full and complete public discussion.
The Freedom of Information Act grants the Board the ability to go into closed session only in very limited circumstances, and the courts have made clear that any exception in the statute that permits a closed meeting should be narrowly and strictly construed.
First, it is important to remember that any asserted attorney-client privilege applicable to a meeting with lawyers is a privilege granted to the client, not the attorney. FOIA requires the client agencies to discuss legal matters in public except for very limited circumstances. Thus, it constitutes a mandated statutory waiver of any asserted attorney client privilege.
As the Freedom of Information Act Advisory Council has said:
A motion to convene a closed meeting must contain three essential elements: (1) the subject of the meeting, (2) the purpose of the meeting, and (3) a citation to an applicable exemption. The law clearly states, and this office has previously opined, that a motion that lacks any of these three elements would be insufficient under the law. See, e.g., Freedom of Information Advisory Opinions 04 (2009), 04 (2008), 06 (2007), 01 (2007), 01 (2005), 24 (2004), 8 (2002), 45 (2001), 38 (2001), and 8 (2001).
In the case of the legal matters exception, the subject of the meeting must either be “actual or probable litigation” or a specific legal matter on which counsel has been retained by the Board. Probable litigation means that a lawsuit has been specifically threatened or the Board has a reasonable basis for believing a suit will be filed by or against a known party.
A general discussion of a policy issue or a procedural matter would not qualify under either standard even where a lawyer or lawyers will be in the room during the closed meeting to offer legal advice, An opinion of the Attorney General said, for example that the legal matters exemption would not allow a local governing body to go into an executive session to discuss such general legal matters as those relating to the purpose of zoning and steps in the rezoning process.” 1985-1986 Op. Att’y Gen. Va. 103, citing 1980-1981 Op. Att’y Gen. Va. 389
The off the record and secret discussions this Board has apparently had on these rules to date should stop, and every Board member should insist on full and open discussion of the rules in public before voting.
Nothing in State or Federal Law Prohibits This Board from Adopting Rules That Carry Out Its Constitutional Duty to Prevent Discrimination by State Licensed Child Placing Agencies
Title VI of the Civil Rights Act of 1964 (which prohibits discrimination based on race or national origin in federally funded programs) requires the Board to include provisions prohibiting discrimination based on race and national origin in its licensing rules. Title VI does, not, however, prohibit or in any way limit the Board’s authority to include in the rules protections against other constitutionally suspect forms of discrimination, such as discrimination based on age, gender, religion, disability, family status, political beliefs or sexual orientation. In fact, there’s a good argument under the Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973 that the Board is required to include protections against discrimination based on age and disability in federally funded programs as well.
The Board has the inherent and statutory responsibility and power to take action to protect the constitutional rights of children in foster care and prospective adoptees and parents.
Each of the members of this Board has taken an oath to support the Constitution of the United States and the constitution of the Commonwealth of Virginia and to faithfully and impartially discharge the duties of your office. As the Governor of Virginia, in the text of Executive Directive 1, has recognized, “discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution.”
To the extent that there is a dispute about how to do this, i.e., whether you can “create a protected class” or accomplish this goal another way, you should be asking the Attorney General’s office for legal information and advice on what you can do to carry out your obligation to uphold the Constitution and protect GLBT foster children and prospective parents and adoptees from discrimination. To date, you have received only advice about what you cannot do.
Religious Organizations that are Licensed by the State to Place Her Children Are Not Free to Discriminate in Doing So
As the American Civil Liberties Union has pointed out to this Board, adoption is fundamentally a state, not a private, function. Every adoption or child placement must be authorized by a state court judge acting on behalf of the state. A parent cannot lose his or her parental rights except in a state proceeding nor can a parent gain parental rights except by order of a court. Licensed child placing agencies are the gate-keepers for this state function. They should not be able to disqualify suitable prospective parents based on a discriminatory belief about a parent’s age, disability, religion, gender, family status, or sexual orientation. This argument is only stronger with respect to foster care placements in which the agency is actually placing a child who is in the custody of the state. As the ACLU so aptly said: “Religious freedom is not a license to deny vulnerable children loving parents just because those parents to not conform to a particular aspect of theological doctrine.”
By offering their adoption and foster care placement services to the public, and seeking the required state licensing to do so, religious organizations choose to enter the “secular world” where they have to follow the same “secular rules” applicable to all adoption and foster care service providers in the state. To adopt rules that permit otherwise is to put this Board in the position of endorsing adoption agency rules that restrict adoption services based on the religion of the prospective parents, their age, whether they have other children, whether those children were conceived naturally or artificially, whether either of the parents has a disability or is gay.
Passing the final rules in the form that you approved them in proposed form would be consistent with your sworn duty to uphold the U.S. and Virginia Constitutions and make clear that you don’t condone or support unconstitutional discrimination by any state licensee. It would not change the law that currently limits adoption to married couples and single people, but it would ensure that no qualified prospective parent or vulnerable child can be discriminated against based on religion, age, disability, family status, political beliefs, gender or sexual orientation.
For all of the reasons above, Equality Virginia urges you to vote on December 14th to include language in Section 22VAC40-131-170 B. of the final rules for licensed child placing agencies that makes clear that an agency licensed by the state shall “prohibit acts of discrimination based on race, color, gender, national origin, age, religion, political beliefs, sexual orientation, disability, or family status to: 1. Delay or deny a child’s placement; or 2. Deny an individual the opportunity to apply to become a foster or adoptive parent.”
Thank you for your considered attention to this important issue.
Very truly yours,
Executive Director, Equality Virginia
Claire Guthrie Gastañaga
Legislative Counsel, Equality Virginia
cc: All Members of the State Board of Social Services
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