Gov. McDonnell expected to sign bill allowing creation of BVU authority

BRISTOL, Va. – To the delight of supporters and dismay of opponents, Gov. Bob McDonnell is today expected to sign legislation allowing the creation of a Bristol Virginia Utilities authority.

But a lawsuit challenging the act’s constitutionality remains unresolved and its potential impact undetermined.

The bill paves the way for the city utilities provider to operate as a separate governmental entity, outside direct oversight by the elected City Council. It would transfer ownership of the electricity, water, wastewater and telecommunications infrastructure from the city to BVU, which is presently a division of the city government.

McDonnell spokeswoman Taylor Thornley said last week the bill was being processed and would likely reach the governor’s desk today.

“It will probably be Monday by the time the bill is ready to be signed,” Thornley wrote in an e-mail.

While the legislation’s path through the Virginia General Assembly was virtually free of obstructions, a courtroom showdown awaits because some city residents remain steadfast in their opposition.

Later this year, Circuit Court Judge Larry Kirksey is expected to hear the lawsuit – filed in November by Lonnie and Jeanette Whitley – that challenges the constitutionality of last year’s City Council approval of the authority plan. At issue is whether the act constitutes a sale or conversion of city assets.

The spectre of that litigation apparently held no sway with lawmakers, who unanimously approved matching bills in the state Senate and House. Senators voted 39-0 last week to approve the House bill, while Delegates voted 99-0 to approve the Senate version.

“We’re tickled with the response of the General Assembly. And the fact that everybody who voted, voted for it in both houses, both times. We think that is indicative of the value of the legislation,” BVU General Counsel Walt Bressler said.

The remaining question is what, if any, effect the lawsuit will have.

Legislative patrons Sen. William Wampler, R-Bristol, and Delegate Joe Johnson, D-Abingdon, have said they believe a judge’s decision for the plaintiffs would halt creation of the authority.

Whitley, who said the authority act amounts to the “white collar theft” of city assets, believes he will prevail and the court will stop its implementation.

“Our position is going to be – despite what the General Assembly has done and if the governor signs the bill putting it into law – the manner in which the whole process was done is unconstitutional, because the vote by the City Council was unconstitutional,” attorney David Hutton said Friday.

Hutton, who represents the Whitleys, claims the council’s approval was a sale, which would have required four affirmative votes by the five council members – not the three votes the measure received.

If the court rules against the city, Hutton said he expects it also will rule to stop the action.

A date for the hearing hasn’t been scheduled, but Hutton said he hopes it could occur by April or May.

BVU officials contend this is a conversion, not a sale and expect to begin operating as an authority July 1 – regardless of the court’s ruling.

“Our position is – if the General Assembly passes it and the governor signs it – it is law,” Bressler said.

Whitley said he expects to win the case but is prepared to file an appeal if he doesn’t.

“We don’t believe that we’ll lose the lawsuit in Bristol Circuit Court,” Whitley said. “But if that would happen, we would appeal to the [state] Supreme Court. We are committed and have every intention of seeing this through, because it’s in the best interest of the citizens.”

dmcgee@bristolnews.com | (276) 645-2532