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McDonnell okay to disburse federal funds, Cuccinelli opines

Rosalind Helderman

Gov. Bob McDonnell (R) has the legal authority to dispense newly approved federal dollars to local school systems, says Virginia Attorney General Ken Cuccinelli (R) in a new legal opinion.

Cuccinelli wrote the opinion in response to an inquiry from Del. Bob Marshall (R), who had questioned whether McDonnell had the authority to request and distribute money approved for states by the Congress in August, given that the General Assembly did not include those funds in the state budget approved in April.

Cuccinelli wrote that while the General Assembly must, in general, sign off on all state appropriations, language in the state budget gives McDonnell the blanket ability to spend new federal funds that come in during the year.

The General Assembly envisioned the possibility the federal government would approve additional Medicaid funding, which was also included in the August federal bill, and outlined how those funds should be spent if they were to materialize. But Cuccinelli cites separate budget language authorizing executive officials to increase appropriations to state agencies when additional federal or other non-general fund revenues materialize.

Marshall had urged McDonnell to reject the federal funding, which was approved by Democrats over the objections of Republicans, who had argued it would add to the deficit. But McDonnell requested the $249 million in funding for teachers anyway, arguing that Virginia should not lose out from money already approved in D.C.

Accepting the money requires that Virginia agree to a "maintenance of effort" requirement, essentially a promise not to spend less in future years on education than the state is currently spending. Marshall also asked Cuccinelli to offer an opinion on whether McDonnell can make such an assurance, since only the General Assembly can make spending decisions in Virginia.

Cuccinelli responded that McDonnell cannot offer a legally binding assurance about future spending. However, the governor can make a political promise to use his office to push for full education funding.

In an interview, Marshall said he did not contest Cuccinelli's legal reasoning. But he said making states agree to "maintenance of effort" requirements in exchange for federal funding is "extortion" that states should resist.

This is only the latest of a series of requests from Marshall for legal opinions from Cuccinelli on hot-button issues.

In this instance, however, Cuccinelli's opinion will make few waves. If he had ruled differently--and opined that McDonnell had no right to dispense the federal funds--the governor could have ignored the missive. Attorneys general opinions are not legally binding. But McDonnell would have faced anger from conservatives concerned with government spending if he ignored his own attorney general's advice on the issue. Now, he will not face that dilemma.

By Rosalind Helderman  | October 4, 2010; 11:04 AM ET
Categories:  Ken Cuccinelli, Robert F. McDonnell, Rosalind Helderman  
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Next: Cuccinelli reissues global warming subpoena to U-Va.


Marshall is forcing virginia to be legislated by the bench.

just go ahead and cancel the virginia state assembly.

the three stooges; mcdonnell, cuccinelli and marshall can run the whole show.

Posted by: MarilynManson | October 4, 2010 2:23 PM | Report abuse

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