DeSteph wants attorney general to review nonprofit advocacy in light rail referendum that revealed conflict in election law, state guidance

VIRGINIA BEACH – State Sen. Bill DeSteph, R-8th District, wants the state attorney general to determine whether it is appropriate for a nonprofit to advocate a position in the Nov. 8 light rail referendum without forming a committee that lets the public know who is funding it.

DeSteph, who serves on the privileges and elections committee, sent a letter to Attorney General Mark Herring on Wednesday, Oct. 26, to determine the legality of Virginia Beach Connex seeking yes votes in the advisory referendum. Virginia Beach Connex is not its own organization but an educational arm of Light Rail Now, Inc., a nonprofit group that had formed and helped fund a referendum committee during the 2012 light rail referendum. 

As The Independent News first reported in September, state election officials provided Light Rail Now with an opinion this year saying it did not need to form a referendum committee and, given that opinion, there is no indication the group has acted inappropriately. However, there is an apparent conflict between the law cited in that opinion and other state guidance that effectively says the opposite.

Martha McClees, executive director of Light Rail Now, on Thursday, Oct. 27, said that the organization sought an opinion from the state, and she added that the group is broader in scope than just the referendum.

“The most we can do is abide by the law as it is written,” McClees said. “And that is what we have done.”

DeSteph’s letter said Virginia Beach Connex appears to be operating as a political action committee. The Independent News story cited in the letter by DeSteph dealt with why Light Rail Now did not organize as a referendum committee, which is different from a PAC.

Based upon the opinion by a state elections official, Light Rail Now decided not to name those funding its information campaigns seeking yes votes in the advisory referendum on extending The Tide from Newtown Station to Town Center in Virginia Beach. Light Rail Now is running advocacy efforts under marketing names such as Virginia Beach Connex and Mission Transport VB. It is a 501(c)(4) organization. 

The Virginia Beach Connex website does not readily make it clear that it is not its own organization, calling itself “a group of civic-minded citizens of Virginia Beach with a clear vision for the growth and future successes of Virginia Beach as a competitive, first-class resort and a destination not only for tourists, but also for our growing population of retirees, families, business owners and young professionals.”

Guidance at the elections website still says such groups should form referendum committees. This advice remained online today.

“The state elections board needs to take a look at state law and make sure guidance reflects state law,” McClees said last week.

It is not certain this will be addressed before election day. At the request of elections officials, The Independent News emailed written questions about the issue. Elizabeth Howard, deputy commissioner for the state elections board, wrote in an email that they would not address the newspaper’s questions because “the department does not answer legal questions.”

State election officials also declined to say whether they will remove their guidance from the website. The site says any group seeking to influence a local referendum and spending more than $1,000 must form a committee and disclose donors. Again, 501(c)(4) organizations are specifically included in that statement online. 

The opinion that allowed Light Rail Now to avoid forming a committee is based upon a section of election law that says nonprofits – including 501(c)(4) organizations – are exempt from reporting requirements if they do not advocate for or against a specific candidate.

Jimmy Frost, a citizen involved in the anti-light rail effort here, asked Commonwealth’s Attorney Colin Stolle to look into the matter, but Stolle’s office ultimately referred him to the state. “The commonwealth’s attorney does not have the authority to overrule the state board, who have already rendered an opinion on this,” Macie P. Allen, a spokesperson for Stolle, said.

Martin Mash, a state elections spokesperson, on Thursday, Sept. 1, said questions about Virginia Beach Connex would have to be handled by local officials, possibly through the courts. 

John Atkinson, the city treasurer in Virginia Beach and founder of No Light Rail Virginia Beach, said efforts to seek clarity or action on the conflict in election guidance have resulted in “an endless loop” without clarity.

“It’s not a transparent process,” said Atkinson, whose anti-light rail organization is a political action committee and, as such, files disclosures available online for public inspection. 

“The contributors to Virginia Beach Connex,” Atkinson said, “are probably heavy contributors to city council elections, but the citizens do not have the right to know that, which is contrary to most law. … After the election, it’s too late.”

DeSteph, in his letter to Herring, wrote, “The issue is time sensitive, with only 13 days until the Election.” 

On Nov. 8, Virginia Beach voters will decide an advisory referendum that could embolden light proponents on the city council or kill city support. Some incumbents seeking reelection to the city council this year have said they will abide by the will of voters.

A poll by The Virginian-Pilot, WVEC-TV and the Wason Center for Public Policy Christopher Newport University showed the issue is sharply divided, with 49 percent of respondents saying they are opposed, 48 percent in support and 3 percent undecided. The margin of error is 4.5 percent, plus or minus, according to The Pilot’s Jordan Pascale.

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