I was disappointed to learn that the Frederick County board voted to rescind protections for LGBT employees, specifically given that the board’s reasoning for doing so has no basis in law.
As reported in this paper, Blaine Dunn, relying on advice from Dave LaRock, moved to rescind LGBT employee protections based on the Dillon Rule. Unfortunately, it appears Dunn and LaRock are confused about the Dilion Rule and have inadvertently used it to expand government authority rather than contract it.
For background, the Dillon Rule refers to a legal principle written by Iowa Supreme Court Justice John Dillon in the late 1890s. In its simplest form, the Dillon Rule limits the powers of local governments to those powers granted them by the legislature (and provides certain exceptions to those limitations that are not relevant to the issue at hand). Dunn (and LaRock) cite this core principle to support the move to rescind LGBT protection.
Dunn and LaRock appear to believe that, by removing discrimination provisions that apply to the county government, they have somehow followed the Dillon Rule. In actuality, they have turned it on its head. By passing LGBT protections, Frederick County had limited its own ability to discriminate — it had limited its own authority. By limiting its own discriminatory powers, Frederick County had acted in furtherance of the Dillon Rule. Dunn, by contrast, has actually expanded the authority of Frederick County by increasing its discriminatory power. This expansion of power is not supported by the Dillon Rule as cited by Dunn or LaRock.
It is unclear how increasing the government’s ability to discriminate is in keeping with the Dillon Rule’s core principles. I am aware of no argument from Dunn or LaRock to support this strange (and illogical) interpretation of the rule.
Lastly, it is particularly perplexing that legal counsel for the board would allow its members to cite Virginian legal principles in error without first informing them of the mistake. One wonders what purpose there is in maintaining counsel that will not properly inform the board members of the law.