April 2020 newsletter on meetings during COVID-19

The day after the governor declared a state of emergency to deal with the Coronavirus, VCOG posted to its daily newsletter the rules already in place to allow public bodies to meet electronically without a physical quorum in one place. A meeting under this section allows for an all-electronic meeting to discuss the declared state of emergency, but nothing else. That left public bodies in a bind for dealing with many important issues -- most notably the public hearing for and adoption of the annual budget -- that weren't directly related to the virus emergency. Nor did the rules contemplate the eventual health directives to limit gatherings to a maximum of 10 people, which is less than the size of a quorum for many state and regional bodies, and which is more than the size of many local bodies when staff is included.

As public bodies scrambled to adapt, VCOG asked the public to grant government flexibility during this unprecedented time, but it also urged public bodies -- no matter what choices they made -- to keep basic elements of public access, notice and minutes front and center.

The Attorney General provided some guidance for how public bodies should proceed in an opinion issued March 20. In it, he said that what constituted business about the virus emergency was not so narrow as to exclude matters that could cause the public "irrevocable harm" if not taken up. That gave public bodies a little wiggle room.

The AG's opinion also said, though, that the statute allowing for the governor's declaration was not a carte blanche to ignore any state law.laws. Though some latitude is built in to the statute for "time-consuming procedures and formalities," the AG said that did not extend to departures from FOIA's procedures.

On the other hand, the AG said the code section allowing for the declaration of local emergencies would allow localities to adopt temporary ordinances to ensure the "continuity of government," which could presumably include provisions for allowing all-electronic meetings. The AG cautioned that ordinances should be "carefully limited in scope" and not last for more than six months.

Local government attorneys from across the state reached out to each other and to VCOG, looking for best practices and alternatives. VCOG began compiling a list of responses, based on news reports and first-person accounts.

Local governments have taken multiple approaches, many dependent on their technological capabilities, and many dependent on the health condition of their members. Some will now meet exclusively by electronic means. Some are meeting virtually in only some instances. Some are continuing in-person meetings only but with social distancing precautions dictating how they seat themselves. The Town of Culpeper held a meeting in a government parking lot, with members sitting in their cars arranged in a circle!

Of those localites still holding in-person meetings, some are allowing the public to attend -- again while respecting social distancing guidelines -- either in the same chamber or in other rooms within the government building. Others are barring the public altogether. All are strongly encouraging the public to stay home and watch a livestream of the meeting, either on Facebook, YouTube, Zoom or other audio and videoconferencing services.

The overall response has been measured, with localities paring down their agendas and using technology to reach the public and receive their comments. On the other hand, state and regional public bodies were left in limbo, still only able to discuss items related to the emergency.

There has been discussion of amending FOIA in the upcoming reconvene session, where the General Assembly considers amendments and vetos offered by the governor. Of course, there are questions surrounding where and how the General Assembly will meet if they are to respect limitations on crowd size. There is also concern over how to amend FOIA since no bills passed by the General Assembly amend the electronic meeting section (amendments to different code sections can be excluded as not being "germane" to the original bill). VCOG and others have suggested offering amendments through the budget bill.

Virginia is fortunate in that it had language in place to deal with electronic meetings generally and emergency electronic meetings specifically. Most states did not. Consequently, many states have been subject to hastily drawn up bills passed with no public input by legislatures still in session and/or broad executive orders from their governors. Advocates in those states are concerned about the precedent these new measures will set, unlike in Virginia, where the rules were put into place after dozens of discussions and compromises among access, press and government representatives through the FOIA Council.

And perhaps when this is past us, and the emergency ordinances have expired, the public and the government will walk away with a new appreciation of how technology can be harnessed to enhance government transparency and encourage public participation.