2015 legislative wrap-up

When the General Assembly adjourned Feb. 27, it was with a fairly good record on government transparency behind it. Several good bills passed, several bad bills failed, and some that needed fuller vetting will be sent to the FOIA Council’s ongoing study. There were a few disappointments along the way, but whether it was because this year is an election year or because the former governor’s criminal conviction tempered legislators’ thoughts of keeping information from the public, the session will go down as being mostly sunny.

The bill causing the most concern was introduced on the second-to-last day of filing (more than a week after the session began) and was not finally disposed of until just two days before adjournment sine die. The bill was the so-called lethal injection drug-secrecy bill. Carried for the governor by Sen. Dick Saslaw (D), the bill was an attempt to ensure that Virginia could get the drugs necessary to carry out the death penalty by lethal injection, though no executions are currently scheduled. Pharmacies providing the drugs have experienced backlash domestically and internationally, and so Saslaw’s bill would have given these companies anonymity if they provided the drugs to Virginia. The bill also would have shielded the exact drugs provided.

Despite testimony from scholars that the bill was likely unconstitutional, the bill passed the Senate and was advanced through the House Courts of Justice Committee. VCOG testified that the bill allowed for secret procurement, noting that no other companies contracting with the government can keep their identity secret, and also noting that the citizens and the state have no way to track whether the drugs provided are effective or the best value for the Commonwealth. A vigorous debate on the House floor, led by Dels. Jim LeMunyon (R) and Scott Surovell (D), preceded a surprising vote to defeat the bill, 42-56. That wasn’t the end, however. Three delegates Matt Fariss (R), Jim Morefield (R) and Monty Mason (D) confirmed they were approached by the Department of Corrections  (DOC) the next day to see if they would change their votes if the measure was brought up for a revote. The DOC effort failed, and the bill remained defeated.

Another late-filed bill made it through one chamber before being sent to the FOIA Council. This one would have amended the open meetings exemption for discussion of terrorism plans to include talk of any gang related-activity. Sen. John Cosgrove (R) told the House General Laws FOIA Subcommittee that time was of the essence and that lives were at risk if city council members couldn’t talk in confidence.

Other bills that will go to the FOIA Council include:

1. A bill from Del. Brenda Pogge (R) that would allow a court to invalidate an action taken in a meeting that did not follow a specific notice provision;
2. A bill from Del. Rick Morris (R) that would have made certain intentional FOIA violations a felony; and
3. Bills from Sen. Chap Petersen (D) and David Ramadan (R) that would remove the exemption university presidents have for their working papers and correspondence.

A bill that would have allowed a committee chair, in his or her discretion, to require anyone giving testimony to that committee to take an oath, and to make any knowingly false statement a Class 1 misdemeanor. Though prepared to, VCOG did not speak against Sen. Tom Garrett’s (R) bill because the committee chair did not take any public testimony.

Bills we were sorry to see defeated in various committees and subcommittees included:

• Bills from Sen. Emmett Hanger (R) and Del. Dickie Bell (R) that would have subjected public utilities to FOIA when they are exercising their statutorily granted eminent domain powers;
• Del. Steve Landes’ (R) bill that would have required school board members to certify annually that they’d received FOIA training that year. The measure was supported by the school boards association and the Department of Education;
• Surovell’s bill that would have required the State Corporation Commission to release public comments filed by the commission or its staff when asked by federal or state agencies;
• Del. Mark Keam’s bill to state that the policy of the Commonwealth is that public libraries provide an essential service to the community; and
• Del. Jennifer Wexton’s bill that would have prohibited reimbursement for travel to officials who go to conferences where the agenda or supporting materials are not publicly available.

A bill from Bell giving local governments guidance on how to implement policies for prayer at public meetings was defeated in the Senate.

The exemption for VCU’s Health System was extended to the Board of Visitors in a bill brought by Del. Chris Peace (R) in recognition of VCU’s unique organizational structure. And bills brought by Del. Todd Gilbert (R) and Sen. Frank Ruff closed a loophole that allowed certain health care committee records protected from disclosure under the rules for litigation discovery to be disclosed under FOIA.

New records and meetings exemptions were created for certain cybersecurity records, owing to bills brought by Sen. Richard Stuart (R), and because of a bill from Sen. Mark Obenshain (R), the Attorney General will have to post online any contracts the office enters into with outside counsel.

New this year: the conference report of budget negotiators was put online 48 hours prior to a vote. Del. Ben Cline (R) and Sen. Ralph Smith (R) both brought bills to make this requirement a law. Smith’s bill passed the Senate, but it met the same fate as Cline’s in the House Rules Committee. The committee agreed to make it a House rule, but nixed the opportunity to make the bills into law. House rules can be changed each session. Fingers crossed that this is one rule that won’t be changed.

For a full list of the bills VCOG tracked this session, click here.