Virginia Department of Health

[Repeater]

I received a reply, which addressed the issue quite directly. It seems that it has been decided that it is in my best interest to be disarmed.

You were directed to leave the local health department office because it has been determined that it is in the best interest of the clients and the employees not to permit weapons in any VDH work locations. Should you have any further questions concerning this policy, please feel free to contact Bob DeLaney in VDH's Office of Human Resources. You can reach Mr. DeLaney at (804)864-7084 or robert.delaney@vdh.virginia.gov.

Note the passive voice. Who specifically "determined that it is in the best interest of the clients and the employees not to permit weapons in any VDH work locations."

Perhaps you can follow up with "further questions."

 

[TFred]

Here are a few thoughts on this reply.

The entire response is framed in the context of the workplace. As in policies and rules for employees. Haven't we seen cases where workplace rules prohibit employees from carrying, but those rules do not apply to customers?

The letter states "That guidance indicated that our restriction on weapons in VDH workplaces was enforceable for our employees and for third parties entering our offices."

Who are "third parties", and more importantly, who are "second parties?"

I'm neither an English nor a Math major, but I don't think you can have "third parties" unless you have both first and second parties. No reference is made to these mysterious "second parties". I assume that the employees are the first parties, as generally, HR and workplace policies are most directly applicable to employees. Which "parties" are customers or clients? And who are these "third" parties?

I wonder if employees are the "first parties", customers are the "second parties" (which they have chosen not to address in the letter), and other business related entities (such as mail delivery, building contractor personnel, etc) are the "third parties?"

Are they trying to talk themselves out of a corner that they know they are in?

TFred

 

[TFred]

In 2008, during your term as Attorney General, you issued opinion #08-043, in which you stated that the Department of Conservation could not prohibit the possession of openly carried firearms, because it lacked statutory authority to do so. The Department of Health similarly lacks such authority, as Virginia Code §32.1-12 et seq. do not authorize the department to regulate the possession of firearms.

And by the way... it seems that with every communication we have with the Administrative branch of the government, it is hammered home yet once again how utterly useless are the opinions of the Attorney General...

Why do they even bother to ask? Has even one opinion from that office ever helped us when it came down to resolving an actual issue? I'd sure like to know about it, if there was.

TFred

 

[Dreamer]

Who are "third parties", and more importantly, who are "second parties?"

The employer (the State/VHD) is the First Party.

Employees of VHD are the Second Party.

People who avail themselves of the services of this agency are Third Parties.

 

[palerider116]

I don't see how a state agency can pull from a "Human Resources" manual and expect the customers and citizens to abide by it. It would be like any other store/company using their HR manual for employees and telling me that I can't wear more than one ring on my hand because its against company policy even though I am a customer.

The HR manual is not a credible source for authority for customers.

The discussion needs to be routed through VDH's legal department, not HR department.

http://www.vdh.state.va.us/ContactUs.htm

Here is a list of contacts for VDH. Making calls up and down the list for the deputy commissioners, complaints against the facilities, and anyone else who may even have a remote connection to the legal may yield better results. A complaint to your local state representative (especially if he/she is pro 2a) to go alongside the complaints made to the VDH may go a long ways also.

The letter started off with responsibility being passed off, and ended with it being dumped on another person.

 

[Tosta Dojen]

Who are "third parties"?

The policy (which is attached to the first post in the thread) defines the term as follows:

Third Parties - Anyone who is not a VDH employee and enters VDH facilities or locations where VDH staff members perform work.

This is not a case where a policy applicable only to employees is mistakenly applied to customers. The policy was deliberately constructed to apply to citizens who are not agents of the state.

 

[paramedic70002]

At the local Health Department today, I learned that the Virginia Department of Health has a policy forbidding the possession of weapons. I requested and received a copy of the policy, which reads, under section 5C:


As this is a state agency, the policy would not be preempted.

Well, you could say that the prohibition is NOT allowed by law, but by AG opinion. Yes I know that's a hard sell...

Funny, seems that the STATE has determined that, in partiality, people who are issued CHPs by the STATE, are a danger to STATE employees.

I think my brain is bleeding.

 

[streetdoc]

Here are a few thoughts on this reply.

The entire response is framed in the context of the workplace. As in policies and rules for employees. Haven't we seen cases where workplace rules prohibit employees from carrying, but those rules do not apply to customers?

The letter states "That guidance indicated that our restriction on weapons in VDH workplaces was enforceable for our employees and for third parties entering our offices."
.....
TFred

I am providing a link to an OSHA letter that may have some bearing on this, although it was primarily written for "Parking Lot" rules/law. Link: http://www.nraila.org/media/PDFs/OSHAParkingLotLtr01162009.pdf

 

[Tosta Dojen]

I am providing a link to an OSHA letter that may have some bearing on this, although it was primarily written for "Parking Lot" rules/law. Link: http://www.nraila.org/media/PDFs/OSHAParkingLotLtr01162009.pdf

Now that is interesting, because of the following snippet tucked away on page 3:

In the health care and social services field, where criminal suspects, acutely disturbed violent individuals, and/or the mentally ill are often present, the presence of handguns and other weapons among patients, their families, or friends poses an obvious risk of violent assaults. See Guidelines for Preventing Workplace Violence for Health Care and Social Service Workers, OSHA publication 3148 (1996) at 1.

The referenced publication lists "[t]he prevalence of handguns and other weapons among patients, their families or friends" as a "risk factor" in workplace violence, and indicates that "employers may choose to [...] [p]rovide metal detectors—installed or hand-held, where appropriate—to detect guns, knives or other weapons, according to the recommendations of security consultants." The possession of weapons by non-employees is not otherwise addressed.

 

[TFred]

The referenced publication lists "[t]he prevalence of handguns and other weapons among patients, their families or friends" as a "risk factor" in workplace violence, and indicates that "employers may choose to [...] [p]rovide metal detectors—installed or hand-held, where appropriate—to detect guns, knives or other weapons, according to the recommendations of security consultants." The possession of weapons by non-employees is not otherwise addressed.

And yet once again... common sense would dictate that there will always be guns in such an environment... it's insane to ensure that only the risky people will be the ones to have them.

How dumb can these "smart" people be!?

TFred

 

[Tosta Dojen]

Update:

I put in a couple of FOIA requests on this. The first was for information about the drafting of the 'no firearms' policy. While I managed to identify the entities responsible for it, I didn't get the main thing I was after, which was the substance of the advice from the Attorney General's Office.

The Virginia Department of Health (VDH) is mandated by Department of Human Resource Management Policy #1.80, "Workplace Violence", to create an agency policy on the same subject. VDH Human Resource Policy #1.80, "Workplace Violence" was initially drafted by a staff member of the VDH Office of Human Resources (OHR). This draft was edited by myself with input from the VDH OHR Employee Relations Manager and with input from the VDH Office of Family Health's Division of Injury and Violence Prevention. The final draft of the policy was reviewed and approved by the VDH Human Resource Policy Advisory Committee, made up of the agency's Deputy Commissioners.

The guidance we received from the Office of the Attorney General is attorney-client privileged, and thus, we cannot share it. § 2.2-3705.1. of the Code of Virginia exempts attorney-client privileged communications from disclosure under the Commonwealth's Freedom of Information Act.

Please let me know if I may be of any further assistance to you.

Bob DeLaney
Policy & Audit Manager
Virginia Department of Health
Office of Human Resources

I put in another request after a careful reading of the full policy. Section 6(C)(2) requires the completion of a Workplace Violence Initial Report, and the form for that report specifically includes a checkbox for "Possessing or brandishing a weapon". I requested a copy of this report, as well as any other reports that may have been filed. The results were disappointing:

This is in response to your Freedom of Information Act (FOIA) request related to a man in possession of a handgun at the Roanoke Health Department on or about June 16, 2010. After a thorough search of paper and electronic documents at the Roanoke Health Department and at the Virginia Department of Health central office in Richmond, no documents responsive to your request were found.

Apparently, the workers were so unconcerned by my possession of a firearm that they didn't even bother to file a mandatory report on it.

Finally, with the publication of Attorney General Opinion #11-078, it was time for a follow-up. I finished drafting it just this morning:

Secretary Hazel:

I have previously corresponded with you and Robert DeLaney regarding Virginia Department of Health Human Resource Policy #1.80, "Workplace Violence", which purports to prohibit the possession of firearms at VDH work locations. You and Mr. DeLaney indicated that the policy was developed in 2008, with the guidance of the Office of the Attorney General, who advised that the policy was enforceable for third parties entering VDH offices.

Last month, Attorney General Ken Cuccinelli issued opinion #11-078, regarding a policy of the University of Virginia that prohibited the possession of firearms. The Attorney General states that because a policy does not have the force of law, it is invalid to the extent that it prohibits concealed carry of firearms by persons permitted to do so.

Because VDH Human Resource Policy #1.80 is likewise merely a policy, the same reasoning would apply, and that the policy is invalid at least insofar as it prohibits the possession of concealed firearms by citizens with concealed handgun permits. It is clear that whatever advice VDH may have received from the Office of the Attorney General in 2008, it has been superseded by opinion #11-078.

It would therefore seem necessary for VDH to revise Human Resource Policy #1.80 so that it is no longer inconsistent with the Attorney General's opinion.

We'll see what happens from here.

 

[2a4all]

From Tosta Dojen (8/18/2011):

"The guidance we received from the Office of the Attorney General is attorney-client privileged, and thus, we cannot share it. § 2.2-3705.1. of the Code of Virginia exempts attorney-client privileged communications from disclosure under the Commonwealth's Freedom of Information Act."

​

It seems a bit unusual for a client to claim attorney-client privelege, as opposed to saying "On advice of council...". Do they think they're guilty of something?

 

[skidmark]

From Tosta Dojen (8/18/2011):

"The guidance we received from the Office of the Attorney General is attorney-client privileged, and thus, we cannot share it. § 2.2-3705.1. of the Code of Virginia exempts attorney-client privileged communications from disclosure under the Commonwealth's Freedom of Information Act."

​

It seems a bit unusual for a client to claim attorney-client privelege, as opposed to saying "On advice of council...". Do they think they're guilty of something?

No, they are paraphrasing both the FOIA and the instructions given them by their counsel. It would have been better stylistically to phrase it along the lines of "§ 2.2-3705.1. of the Code of Virginia exempts attorney-client privileged communications from disclosure under the Commonwealth's Freedom of Information Act. We are invoking that exemption". But they did not consult me on style issues before issuing their response.

stay safe.

 

[peter nap]

No, they are paraphrasing both the FOIA and the instructions given them by their counsel. It would have been better stylistically to phrase it along the lines of "§ 2.2-3705.1. of the Code of Virginia exempts attorney-client privileged communications from disclosure under the Commonwealth's Freedom of Information Act. We are invoking that exemption". But they did not consult me on style issues before issuing their response.

stay safe.

They could do like Surry and say they're too stoopid to get the information...or follow their new policy and not respond at all.:banana:

 

[skidmark]

They could do like Surry and say they're too stoopid to get the information...or follow their new policy and not respond at all.:banana:

Now that's just mean.

I mean, seriously, a dancing bannana? Really!

We better get that new law that puts teeth into preemption and FOIA and all the other stuff real soon or you are going to litter dancing bannanas all over the place.

stay safe.

 

[user]

jmelvin wrote:
I think Cuccinelli is flat out wrong about agencies = local agencies. He confuses codofication with law. Pre-emptionindicates says all, not local, agencies.

I'd agree just based on how the thing is written, and my desire for as expansive a scope as possible - but the title of the statute is, "Control of firearms; applicability to authorities and local governmental agencies ", and it's in a chapter entitled, "General Powers of Local Governments", and that's within the title entitled, "COUNTIES, CITIES AND TOWNS".

There's a rule of construction that says that the titles limit the applicability of the statute, because they're part of the statute. However, that common law rule has been abrogated in this case:

§ 1-217. Headlines of sections.

The headlines of the sections printed in black-face type are intended as mere catchwords to indicate the contents of the sections and do not constitute part of the act of the General Assembly.

It's my opinion that the language of the statute,

...The provisions of this section applicable to a locality shall also apply to any authority or to a local governmental entity, including a department or agency, but not including any local or regional jail or juvenile detention facility.

makes it clear that the term, "locality" is "including a department or agency". It makes a clear distinction between the covered entities and those which are not. Expressio unius alterius exclusio est. By the failure to qualify "a department or agency" as local departments and local agencies, and given the statute that says the title ain't part of the code, seems to me that it means, "a department or agency", period.

I suspect that any circuit court judge listening to that argument will just Judge Potter's "pishtosh rule". The General Assembly clearly meant to regulate cities, counties and towns, and the VDH, the DMV, and such aren't cities, counties, or towns (or "authorities", which is a technical term).

That said, let's go back to the Dillon Rule. And, as someone said, this has absolutely nothing to do with pre-emption, since none of the agencies we're talking about are independent sovereigns. The law allowing agencies to make regulations having the force of law almost always says that the regulations have to be related to the mission of the agency. Except for the Department of Game and Inland Fisheries and the Department of Forestry, I don't see how any agency can make regulations in furtherance of their missions precluding the otherwise lawful ownership, possession, and use of firearms.

I still think that Article 1, Section 13's use of the phrase, "shall not be infringed" means precisely that, but then, I'm not a judge.

 

[woodstock]

On a Somewhat Related Issue, re: "Boards" and Pre-emption

I recently visited the Rappahannock-Rapidan Community Services Board office in Culpeper and was greeted by a prominent "No guns" sign. An employee, who claimed to be an NRA member and competative rifle shooter, told me the policy had been carefully vetted by the Board's attorneys and was legal.

I looked in the Culpeper County on-line tax records and the property the Board occupies is owned by Culpeper County, and is tax emempt. The Board's own website (http://www.rrcsb.org/AboutUs/AboutUs/tabid/57/Default.aspx) tells that the Board was formed by the local governments of Culpeper, Madison, Rappahannock, Fauquier, and Orange counties in 1972. The website's "About Us" page goes on to talk about "Its combined statutory mission rests with its Area Plan for ..."

Being formed by local government and having a "statutory mission" tell me they're a local goverment agency or board and therefore are subject to pre-emption. What say ye? I plan to point this out to them and will cc: VCDL on that communication.

Rick

 

[skidmark]

Rick,

You are properly on track for handing their backside to them on a platter. Please do so nicely.

And going back to the Health Dept's "Workplace Violence policy" issue - forgive me for missing this in the first place. Is that not a part of their set of employee policies? In other words, they are "rules" set out for employees to follow. Trying to make them apply to consumers of services is a stretch that I do not think they can pull off sucessfully.

Maybe I'm off base her, but don't they use state laws to control the behavior of folks who are not on the payroll, and not the employee policy manual? I'd love to see them try to give me an Informal Counseling Notice http://www.dhrm.state.va.us/hrpolicy/web/pol1_60.pdf - I'd be so afraid I would not get that Exemplary consumer of services evaluation!:uhoh:

stay safe.

 

[peter nap]

Rick,

You are properly on track for handing their backside to them on a platter. Please do so nicely.

.

That's exactly my point about members handling issues and being responsible...
Damned if I'd do so nicely:lol:...especially when you're greeted by a Barney saying "duh, I'm an NRA member"

 

[woodstock]

Rick,

You are properly on track for handing their backside to them on a platter. Please do so nicely.

I always try to do things nicely - at first.

Thanks.