Extraordinary times call for extraordinary efforts

NOTE: This column, by one of VCOG's founding board members, John Edwards, was originally published by The Smithfield Times. Edwards, the former editor of the Times, still writes a column for the paper, called In the Short Rows. Edwards was instrumental in setting up the FOIA Council and served on the council for his first several years.

Local governmental bodies across Virginia are wrestling with one of the many unprecedented effects of the COVID-19 pandemic: how to conduct the public’s business openly and legally while not endangering elected officials, employees and the public they serve.

The Virginia Freedom of Information Act provides the parameters within which governmental bodies and agencies must operate to ensure that residents know what’s being done on their behalf.

The Act was originally enacted in 1968, in an era of typewriters and basic word processors, of telephones connected by phone lines — a time when few people even dreamed of meeting “electronically.”

By the end of the 20th century, technology had made electronic gatherings possible, and government officials were eager to take advantage of those advances. In that new age, FOIA was amended to provide for the limited use of electronic meetings.

While the rules vary for regional and state bodies, all governmental bodies, including local boards of supervisors, school boards and town councils have since been allowed to hold electronic meetings without a quorum being physically present in order to deal with emergencies declared by the governor. The business thus conducted has to deal specifically with the emergency.

Such emergencies have historically been hurricanes, tornadoes, blizzards and similar natural catastrophes. No one envisioned anything like what is now happening, with schools and businesses closed and a statewide “stay at home” order by the governor in place from now until June.

Despite the shutdown, basic functions of government continue and significantly, this is the time of year that budgets are adopted and tax rates set. The FOIA emergency electronic meeting section simply doesn’t provide for this unthinkable set of circumstances.

Attorney General Mark Herring provided guidance in a March 20 opinion that acknowledges the uniqueness of the COVID-19 emergency and concludes that local government has authority under a separate Code section to enact a “continuity of government” ordinance that essentially sets aside public hearing and meeting requirements for a six-month period.

The Isle of Wight Board of Supervisors two weeks ago adopted an ordinance that has the potential to waive in-person public meeting requirements that are a major tenet of FOIA. The Town of Smithfield is now also operating under the county’s emergency declaration.

I had a very minor role in crafting the electronic meetings legislation during a major revision of the Act, and those of us who have followed FOIA developments then and since have always been skeptical of local governments being allowed to meet electronically. School board members, supervisors, planning commissioners or council members should be expected to meet in the same room with full public access to those they serve. That’s why the provisions were tightly drawn.

That view hasn’t changed. What has changed is this crisis. I would no more expect the members of the Smithfield Town Council or Isle of Wight Board of Supervisors to risk exposing themselves to this killer than I would my own family.

To their credit, local government officials throughout the Commonwealth, including here, appear to be taking seriously their obligation to be transparent during this crisis. The Isle of Wight Board of Supervisors and Smithfield Town Council both appear determined to follow basic FOIA principles to the extent possible.

Isle of Wight County Administrator Randy Keaton has put the proposed county budget online via the county’s website. There, it can be read and evaluated by county residents. The Board of Supervisors has scheduled its budget hearing for April 23. Despite its adoption of the “continuity of government” ordinance, the board plans to have a quorum present for the hearing if possible and will allow one member of the public at a time to be escorted into the room to comment on the budget.

Residents will also be able, and encouraged, to submit email comments during the hearing.

The Smithfield Town Council held a meeting in the Westside Elementary cafeteria this week where council members could be present but separate from one another. The town is now working on a means of conducting meetings using Zoom. A quorum of Council members would be physically present and the proceedings would be electronically viewable by the public.

These extraordinary times call for extraordinary efforts, and the “continuity of government” code section appears to allow for what must be done.

I for one am delighted that local government is not only taking seriously its obligation to get the public’s work done, but is trying to do so in a manner that is as transparent as possible.

What will happen when the crisis ebbs remains to be seen. There will undoubtedly be calls to further amend FOIA to allow electronic meetings for something more than floods and tornadoes.

My hope, however, is that the underlying principle of local governmental bodies meeting face-to-face with the people they serve will continue to be the basis for governmental meetings, and that whatever exceptions might be considered in the future, are weighed in that that light.