Confusion over virtual meetings

This article originally appeared on VCOG's Substack newsletter.

I got a message from a friend today. She was writing to share with me something one of her colleagues sent to her. Her colleague is an advocate for a licensed professional who regularly engages with a particular state agency and some of that agency’s regulatory boards (yes, I’m being intentionally vague).

The issue was electronic meetings. The colleague said she wanted to be able to hold virtual meetings and that she had been asked by the director of this board to hold tight until a bill could be drawn up and submitted for the General Assembly.

This might sound like a one-off for this professional, this board, this agency. But you’d be wrong. And that’s why I was being vague. Because all summer — especially since the COVID emergency order was lifted, but really even before — there has been a steady drumbeat by state agencies and their many subsidiaries for more virtual meetings, possible legislative fixes, and a whole slew of different interpretations on what the current rules do and don’t allow.

So, I wrote to my friend to tell her what the law is today and what VCOG is doing about it. After I wrote it, I thought, maybe more people need to see this. And, as I advised her, you might want to grab some coffee.

1. The language adopted in the budget revision in August,1 which expires in July 2022, says permanent or interim legislative studies or advisory commissions, committees or subcommittees and executive advisory boards can meet all-virtually, without a quorum in one place, if the purpose of the meeting is informational and votes aren’t taken. (BTW, this was added to the budget with no prior warning to VCOG or the Virginia Press Association, even though we both worked on the pandemic-related meeting budget language in April 2020.)

2. The existing law, 2.2-3708.1 (pre-pandemic and post-emergency order) says state bodies can use all-virtual meetings — with voting allowed — if they follow the procedures in subsection (D).

   • Those procedures do require that there be a quorum of members in one physical place.

   • There is a limit on how many times a meeting of this type can be held.

3. Existing law, 2.2-3708.1 (pre-pandemic and post-emergency order) also says that individual members of ANY public bodies (state, regional, local and their committees, etc.) can call into a meeting — instead of participating in person — and vote on matters:

   • if they have a temporary or permanent disability preventing them from attending (this is an unlimited option);

   • if they have a family member requiring care that prevents them from attending (this is also an unlimited option); or

   • if they have a “personal matter” of any type (this is limited to a certain number of times only).

   Any public body that wants to allow such call-in participation has to adopt a policy authorizing it (you can read the FOIA Council’s policy on its website).

4. Existing law, 2.2-3708.1 (pre-pandemic and post-emergency order) does not limit taking public comment electronically nor does it limit the public body’s ability to stream or broadcast a meeting to the public. Using electronic means to expand access to the public is actually ENCOURAGED in subsection (E).

5. The above notwithstanding, VCOG is working with VPA, the Virginia Municipal League, the Virginia Association of Counties, the vice mayor of Alexandria and now the FOIA Council’s Subcommittee on Meetings2to streamline the electronic meetings section. Part of the reason for doing it is to head off all the piecemeal proposals that every state agency seems to want to come up with on their own (that is, they’re not working it out with the FOIA Council, much less with us). The proposal would retain most all of the above and would relax some of the limits for local bodies and some of the reporting requirements for state bodies. It would allow a limited number of ALL-virtual meetings (without the physical quorum) and it would encourage hybrid meetings where members and the public can attend both in-person and virtually.

If you’ve got any coffee left, congratulations.

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State agencies seem to be getting conflicting advice. They’ve been told that they CAN’T have virtual public comment or that they CAN’T have a hybrid meeting. They’ve been told that they MUST be in 100% in-person with 100% in-person public comment. Some state agencies are insisting that workgroups created by a cabinet secretary are public bodies when they aren’t. It’s all over the map, and I’m not sure why they aren’t getting the straight dope from the experts at the FOIA Council.

The bad result, though, is that some state agencies have given their stakeholders the impression that the agency’s hands are tied, leading to the kind of frustration my friend’s colleague is experiencing.

A recent story in the Virginia Mercury about the State Water Control Board’s hearing on the Mountain Valley Pipeline, where all of Southwest Virginia had to go to Richmond to make their cases, included this comment from a board member: "I don’t think any of us are against the idea of expanding public access. The problem is we’ve got statutory, regulatory, logistical and resource issues that keep us from doing it.’ ” Logistical and resource issues maybe, but FOIA would not have prohibited it.

I don’t mean to throw the SWCB under the bus, because, like I said, I’ve been hearing this issue all summer from any number of state agencies. But before any agency ramps up some legislative “fix,” let’s first (a) take it to the FOIA Council for input and review, and (b) be sure of what the law does and doesn’t actually allow.

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