Role of State Faith Community Liaisons in Charitable Choice Implementation. Legal Authority for the FCL Position


In all sites except Illinois, the FCL position, office, or set of functions has been formally established by statute, executive order, and/or administrative action (as Table III.2 indicates), although in several cases the particular form of and authority for the office has changed over time. One state (Virginia) established the functions by means of statute, three (Alabama, New Jersey, and Texas) by executive orders, and two (the District of Columbia and New Mexico) undertook FCL functions through administrative action. In Florida, the functions that comprised the FCLs work arose through a combination of executive orders and statute. In Illinois, quasi-FCL functions have been undertaken through administrative action within the states Department of Human Services. The sites also established the functions at different times.

In several sites, the legal authority for the FCL function has changed over time. In Florida, both Governor Lawton Chiles (D) and Governor Jeb Bush (R) issued executive orders calling for activities that would eventually fall to the Volunteer Florida Foundation (VFF), where the FCL is housed. At the same time, statutes charged VFF with supporting the Governors Commission on Volunteerism and Community Service, as well as the Faith-Based and Community-Based Advisory Council, which guides the FBCI. In Texas, the 1996 task force established by then-Governor George W. Bush, and the effective mandate to implement Charitable Choice and equal treatment principles, were authorized by executive order GWB 96-10. A 2004 executive order issued by current Governor Rick Perry (R) paved the way for establishment of the OneStar Foundation.

In Virginia, a 1999 General Assembly joint resolution established that states task force, leading to a 2002 statute outlining the responsibilities of the Virginia Department of Social Services (VDSS) to further the goals of Charitable Choice and the FBCI. In New Jersey, Governor Whitman established the faith-based initiative within one state agency; it was formalized by executive order in 2002 and moved to the New Jersey Department of State by her Democratic successor. In the other four study sites, the legal authority for the FBCIs has remained essentially unchanged since their establishment.

Exactly what that legal authority did varied across the sites. In Virginia, where statute codified the FCL functions, the law did not prescribe establishment of an FCL office or position. Rather, it assigned to the Virginia Department of Social Services certain responsibilities for encouraging implementation of Charitable Choice and the FBCI across agencies; these responsibilities could be dispersed throughout the agency or housed in one office or individual. In Florida, one statute explicitly charged VFF to assist in securing training, technical assistance, and other administrative support needed to accomplish the purpose of the Florida Volunteer and Community Service Act of 2001 (State of Florida, 2004), while the statute establishing the Faith-Based and Community-Based Advisory Council charged VFF with administrative support for the council.

The executive orders differed across the sites in how explicitly they framed the FCLs mission and gave the position the authority to pursue it, including authority to require state agencies to cooperate in implementing Charitable Choice and equal treatment principles. Alabamas executive order established the Governors Office of Faith Based and Community Initiatives (GFBCI), changing the name of the Governors Office on National and Community Service to the GFBCI and subsuming AmeriCorps and other national service, volunteer, and disaster preparedness and relief programs into it. The order also provided the GFBCI with significant authority to implement Charitable Choice and the initiative. The other states executive orders generally established the responsibilities of the FCL function more broadly.

Across the sites, respondents suggested that authority and sustainability were related to the source of legal authority; all things being equal, statutes were regarded as providing a certain clout and durability. In sites where the FCLs office and/or activities were at least in part codified by statute (Florida and Virginia), respondents cited this as an important asset. It was seen as able to protect the office, to some extent, from shifting political support and able to give it legitimacy beyond the endorsement of a particular administration or political party. In Virginia, for example, both supporters and opponents of the initiative had some systematic opportunity to express their concerns through legislative public hearings and other meetings, and in some cases these concerns changed the shape of the legislation enacted (see Practice Model 1). The FCL noted that a revision to the states procurement statute to require written notice to program applicants and clients of their right to be free from religious (or other) discrimination and to have access to an alternative provider if they object to an existing providers religious character, were enacted in response to concerns raised at public hearings and meetings. Given the unpredictable nature of law-making, however, creating a statute (as distinct from relying on executive order or other administrative action) can also bring risks, as several respondents observed, opening up the possibility of unintended provisions.

Practice Model 1.
Developing Support Through the Political Process
In Virginia, the process by which the FBCI was first developed and implemented appears to offer a promising model for building support over time. The political process by which the Virginia FBCI was established  with the 1999-2001 task force on faith-based and community groups holding multiple meetings around the state  was seen as relatively deliberate and open, providing opportunities for opponents and supporters to make their views known. Some of this input was said to lead to concrete changes, such as the revisions to the state procurement statute requiring notifying participants and applicants of their rights. The implementation process also entailed several stages, including 1) broad education, 2) identification of partnership resources, 3) capacity assessment and building, and 4) development of collaborations. The FCL suggested that the statute has been implemented in a way thats been very broad but locally focused so that it has become a part of the culture of the state, and she felt the state had effectively balanced the pursuit of public-FBO partnerships with the preservation of appropriate church-state separation.

Executive orders may provide somewhat less stability than statutes, but nonetheless they can offer significant authority. Several respondents noted that such explicit backing from the governor carried weight both inside and outside government. A lack of either statute or executive order was seen as leaving the FCL function potentially vulnerable. Nevertheless, while statutory or executive authority were certainly useful, neither appears to have been sufficient by itself to guarantee authority to implement Charitable Choice or to ensure sustainability for the office.

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