An imperfect, but temporary fix

Amid the honking horns, fainting leaders, plexiglass boxes and face mask fashion, it was easy to miss the governor's amendments to the budget bills that were approved Wednesday, unanimously by the House and with minimal dissent in the Senate, that allow public bodies to meet electronically during the time of a declared emergency "when it is impracticable or unsafe to assemble a quorum in a single location."

Until now, local, regional and state bodies, have been operating under the rules set out in §2.2-3708.2(A)(3) and guidance set out in a March 20, 2020, Attorney General's opinion. The AG's opinion also noted that local governments can adopt temporary continuity-of-government ordinances to relax the rules to get non-emergency business done. Localities did just that. The result has been a patchwork of procedures, from the very simple to the very complex; from the short-lived (60 days) to the full length allowed by the local emergency declaration statute (6 months); from limited, time-sensitive agenda items to business-as-usual ones. Despite the inconsistency across the state, at least there was something to be done.

Except neither state agencies nor regional public bodies (e.g., authorities made up of multiple local governments to deliver water, coordinate transportation or administer jails) nor school divisions, could not take advantage of the statute that allowed the adoption of continuity-of-government ordinances. They were still limited by the narrow rules of § 2.2-3708.2(A)(3).

What to do?

I talked with the governor's office early on, before the AG's opinion, about the need to grant public bodies leeway and about ensuring that any fix still retain the elements of public notice, minutes and access. Later, I was in on a series of emailed discussions and drafts among local and regional government attorneys, the Virginia Press Association and others to come up with a fix that could be included as a governor's amendment to the budget when the legislature reconvened.  The language this group sent was fairly narrowly drawn, and it was designed to be included in the budget "caboose bill," the one that amends the current budget, with a sunset provision that would essentially require the 2021 General Assembly to come up with a permanent fix.

The amendment the governor actually offered -- and that passed yesterday -- is reprinted below:

Notwithstanding any other provision of law, any public body, including any state, local, regional, or regulatory body, or a governing board as defined in § 54.1-2345 of the Code of Virginia may meet by electronic communication means without a quorum of the public body or any member of the governing board physically assembled at one location when the Governor has declared a state of emergency in accordance with § 44-146.17, provided that (i) the nature of the declared emergency makes it impracticable or unsafe for the public body or governing board to assemble in a single location; (ii) the purpose of meeting is to discuss or transact the business statutorily required or necessary to continue operations of the public body or common interest community association as defined in § 54.1-2345 of the Code of Virginia and the discharge of its lawful purposes, duties, and responsibilities; (iii) a public body shall make available a recording or transcript of the meeting on its website in accordance with the timeframes established in §§ 2.2-3707 and 2.2-3707.1 of the Code of Virginia; and (iv) the governing board shall distribute minutes of a meeting held pursuant to this subdivision to common interest community association members by the same method used to provide notice of the meeting.

 
A public body or governing board convening a meeting in accordance with this subdivision shall:

1. Give notice to the public or common interest community association members using the best available method given the nature of the emergency, which notice shall be given contemporaneously with the notice provided to members of the public body or governing board conducting the meeting;

2. Make arrangements for public access or common interest community association members access to such meeting through electronic means including, to the extent practicable, videoconferencing technology.  If the means of communication allows, provide the public or common interest community association members with an opportunity to comment; and

3. Public bodies must otherwise comply with the provisions of § 2.2-3708.2 of the Code of Virginia.

The nature of the emergency, the fact that the meeting was held by electronic communication means, and the type of electronic communication means by which the meeting was held shall be stated in the minutes of the public body or governing board.

The amendment went further than what had been suggested in 5 ways:

1. it will be in effect longer (though still not permanently) because it was added both to the caboose bill and the next biennium budget;
2. it applies not only to public bodies, but to common interest communities (i.e., homeowner associations), which are usually governed by two different statutes;
3. it includes a provision to provide a recording or transcript of the meeting;
4. it requires the governing board to distribute minutes of a meeting; and
5. it requires the body to provide the public with an opportunity to comment, if possible.

The House did not debate the amendments. In the Senate, it was literally the last thing they did before adjourning, more than 10 hours after they first gaveled in. The debate can be viewed here (fast forward to 9:48:43).

As an open government advocate, of course I'm sympathetic to the arguments made by Senators Ryan McDougle (R-Mechanicsville) and Siobhan Dunnavant (R-Glen Allen) that the amendment could be used to undermine public oversight. And I agree with Senators Richard Stuart (R-Montross) and Scott Surovell (D-Mount Vernon) that the language is not perfect and will need to be revisited. But mostly, I agree with these latter two, along with Senators Jeremy McPike (D-Prince William) and John Cosgrove (R-Chesapeake) that this amendment of limited application is necessary -- "and all we've got" -- to allow some of these public bodies to do the work they've been charged to do, like approve distributions under contracts, issue bonds, adopt budgets and more.

No! I don't want electronic meetings to take the place of in-person meetings under normal circumstances. This discussion is not over, and hopefully, whatever permanent language can be worked out in the future will be rarely needed. But in this right-now-normal, it's what public bodies need. And the numerous provisions to include and inform the public are the next best thing to being there.