Sunshine Report for January 2020

The Supreme Court of Virginia ruled that the George Mason University Foundation is not subject to FOIA. And since the foundation was not created by the university and is not the university's agent, the university is not required to turn over foundation records in response to a FOIA request.

The ruling caps the years-long effort of a group called Transparent GMU that sought records related to gifts given to the university by Charles Koch and his brother John. The ruling covers more than donor records, though. It would apply to all records held by the foundation. 

The opinion focused heavily on the origins of the GMU Foundation, which was incorporated by three businessmen in 1966, shortly before the General Assembly accepted the college as a four-year degree-granting branch of the University of Virginia.

The opinion discusses the definition of the word "of." FOIA applies to entities "however designated, of the public body created to perform delegated functions of the public body." Citing Webster's Third New International Dictionary, the phrase "entity of" means an entity "that was produced or distributed by a public body." Given its independent origins, the foundation could not be "of" the university, the court concluded. Additionally, because there is no statutory duty for the university to raise money (only a General Assembly encouragement to do so found in section 23.1-101), the university could not have delegated such a duty to the foundation.

VCOG submitted a friend of the court brief urging that the foundation's records be considered part of the university's public business, since money the foundation brings in impacts decisions the university makes about academic programming, capital expansion, tuition, student fees and more.

Delegates David Bulova and Marcus Simon, both Democrats who represent parts of Fairfax, have expressed interest in legislation to require some foundation records to be publicly available.

Read the opinion, as well as the many filings and orders in the case on VCOG's clearinghouse page.

2020 legislative proposals

Bills to be considered during the 2020 legislative session have been added steadily to the Legislative Information System in advance of General Assembly's Jan. 8 start date. A few FOIA bills have been added, including four recommended by the FOIA Council that are being carried by the council's chair, Sen. Richard Stuart (R-Montross). Two clarify existing provisions on FOIA officers and training for elected officials, one has to do with information on donors to universities, and one attempts to work out what happens to the FOIA response timeline after an estimate for a request under $200 has been given. Del. Mark Levine (D-Alexandria) has proposed a bill to require live streaming, closed captioning, searching and archiving of all House and Senate subcommittee and committee meetings. He has also proposed a bill to loosen the rules on local board members calling in to meetings. The proposal was brought up in a letter to the FOIA Council in December but was not discussed or vetted by the council. Sen. Amanda Chase (R-Chesterfield) has proposed a study of industrial development authorities, including their accountability, while Delegates Chris Hurst (D-Blacksburg) and Danica Roem (D-Manassas) have proposed bills to project student and professional journalists. Check out these and other bills on VCOG's annual bill tracking chart. VCOG has worked with Del. Mike Mullin (D-Newport News) and Del. Jason Miyares (R-Virginia Beach) to develop a bill to make clear that the Office of Executive Secretary, the legislatively created administrative arm of the judicial branch, is subject to FOIA. The bills, which have not yet been assigned a number or posted to LIS, would specifically exclude judges from FOIA, and would create an exemption for the OES to protect any records they may hold of judicial deliberations on specific cases.   2020 Chip Woodrum Intern VCOG is happy to introduce Kalman Weinstein, the 2020 Chip Woodrum Legislative Intern. Kalman is a December graduate of VCU and has spent time interning for AARP Virginia and writing for the Capital News Service. Kalman will be shadowing VCOG's executive director, Megan Rhyne, and spending time with individuals representing multiple facets of the legislative process, from legislators and their aides, to journalists and General Assembly support staff.

The outgoing chair of the Chesterfield County School Board took the opportunity of his farewell address to criticize two citizens for filing "frivolous" FOIA  requests that "hijacked" the process and bullied staff. He said the citizens "do nothing more than strive to get their names in the papers" and that there was a need to find a way to "recoup the hundreds of hours wasted by our staff for their meaningless requests." Neither citizen was present, but the Chesterfield Observer noted that the records obtained by one citizen revealed problems with unlocked exterior school doors and with the custodial service outsourcing, as well as information that the school systems's retirement plan was underfunded.

Petitioners hit the signature mark to force Norfolk’s City Council to hold public hearings and take another vote on the land sale deal for a casino resort that has been at the heart of much public controversy over the past two months.

A Roanoke City Council member resigned from more than half of the committees he served on, citing a concern over the way recent decisions were made. "We worked so hard for so many years to be a council that works toward consensus and absolutely no effort went into that this time."

The Virginia Department of Health warned Virginians not to use any third-party services to get vital records. Though there are charges for searches, the forms needed to request records are free and services that require fees for forms should be avoided, the State Health Commissioner cautioned.

Virginia State Police cleared the chairman-elect of the Fairfax County Board of Supervisors, of allegations that he benefited from a quid pro quo relationship with two developers while buying his family home in 2017.

Between Oct. 1, when the Washington Nationals secured a wild-card berth in the Major League Baseball playoffs, and Nov. 14, when they won the World Series, hundreds of applications for Nationals-themed license plates poured into the Division of Motor Vehicles, including requests to celebrate pitcher Max Scherzer ("MAXS31") and the unofficial anthem of the team, "BABSRK."

Five months after the shooting at a Virginia Beach municipal building, 450 city employees have filed for workers’ compensation benefits related to the shooting. The city wouldn't say how much it has paid so far, nor would it say how many applicants sought compensation for physical versus psychological injuries.

Frederick County Board of Supervisors meetings will now stream live on the county government website, and meeting videos will be archived on the site as well.

The City of Martinsville released the results of a study into the impact of reverting back to a town on the same day it voted to begin the reversion process. It was the first time the public had access to the study, even though the council members have been discussing the possibility of reversion for years.

The City of Williamsburg began using a new software system that updates the city's progress on various projects involving community character, economic vitality, transportation, citizen engagement and more.

A member of the Berryville Town Council accused the mayor of violating the town's code of conduct when the mayor said she was concerned about possible conflicts of interest violations by the town's recorder. Though the mayor's remarks were made in an email, the council member said the mayor violated the code's provision that it would treat staff and others "with respect and will not make accusatory or disparaging remarks at a official council or committee meetings."

The Spotsylvania County Board of Supervisors approved a resolution to ban county government employees from serving on the board. The resolution made an exception for one board member who has long worked for the county.

The City of Charlottesville refused to provide a copy of the resignation letter submitted by the departing deputy city manager, though the city released similar letters in the past.

In mid-December, the Orange County Board of Supervisors voted to terminate the county administrator. There had been no prior public discussion of the matter, which was added to the agenda at the start of the meeting.

At a meeting earlier in the month, the Orange County board voted to join the dozens of other 2nd Amendment Sanctuary localities, even though the matter was not on the agenda and was not discussed until the public comment period. A social media campaign got the word out to the hundreds of citizens who were there to support the motion.