Sunshine Report for September 2021
Bad behavior widens gulf between citizens and public officials
When it comes to open government issues in the news, August was all about the school board meetings. To a lesser extent, city councils and county boards of supervisors meetings had difficulties, but it was the school boards that really struggled with large crowds and unruly speakers there to sound off on Critical Race Theory, mask-mandates and policies on transgender students.
Not all public comment periods devolved into chaos, but some did, and several board chairs resorted to ending meetings prematurely or having individuals who would not adhere to meeting rules escorted out of the room.
The Associated Press reported that nationwide school board members are stepping down from their positions, unable to stomach the vitriol and personal attacks often lobbed by speakers.
This is a new phenomenon, at least the degree to which it is happening. There have seen one-offs here and there over the years, and there have always been concerns over restrictive public comment period rules. But the extent and ubiquity of the decorum issues we saw in August are definitely different.
Boards are allowed to craft time, place and manner restrictions on public comment periods -- which aren't even required at regular meetings -- so long as they are applied neutrally, without regard to content, and so long as they are narrowly drawn and leave other avenues for comments to be conveyed.
The unfortunate by-product of these rowdy meetings, where speakers regularly exceed their allotted time, shout over and boo other speakers or flash vulgar gestures, is that public comment period rules will likely become more restrictive, not less. It's a spiraling race to the bottom.
Anyone who follows VCOG knows that we are huge proponents of public comment periods that give citizens ample time to speak on a wide variety of topics that impact them. But we are also sympathetic to the plight these boards are facing and the growing chasm between them and the citizens they serve.
VCOG urges speakers to be civil and boards to be patient. There has to be a better way than what we've been seeing lately.
-M.R.
VCOG's Annual Report
VCOG released its 2021 annual report last week. It’s a colorful, 4-page quick-hit look at our work since last summer: our advocacy at the General Assembly, our work at the FOIA Council, our podcasts and videos, our conference, and a tribute to VCOG’s founding director. Click the image below to read it on VCOG's website.
Acknowledge me
VCOG's Megan Rhyne writes that physically acknowledging another's presence can generate enough goodwill to overcome frustrations during the FOIA process. The idea came to her as she was passed over for a Bloody Mary garnish.
VCOG offers comments for upcoming meeting
The FOIA Council's subcommittee on records issues will meet Sept. 2 at 1:00 at the Pocahontas Building in Richmond. The subcommittee will consider proposals on reforming FOIA's provisions on fees that can be charged for records and on access to police disciplinary files. VCOG has submitted comments generally supporting the disciplinary files bill and has submitted alternative or additional proposals related to fees.
A subcommittee meeting on meetings issues was canceled.
FOIA Council offers training sessions
The FOIA Council announced a schedule of upcoming training workshops. Three sessions were held in August. Three more are slated for September.
Access to Law Enforcement and Criminal Records (2 hours)
September 23, 2021 at 9:00 am
Access to Public Records (1.5 hours)
September 23, 2021 at 1:00 pm
Access to Public Meetings (1.5 hours)
September 23, 2021 at 3:00 pm
Questions? Send the council an email.
Open Government in the News
Correction: The following explanation of the Henry County Board of Supervisors meeting mentioned in the third item from the bottom was explained to VCOG by the county’s Public Relations and Community Liaison like this:
-The Henry County Board of Supervisors did not adjourn its meeting nor did the Board clear the room before going into closed session. The Board took a vote to enter into closed session and the Board left the room to have closed session on our 4th floor. The public and media were welcome to stay in the room until the Board came out of closed session.
-There was no additional announcement for reconvening necessary before the vote was taken. The agenda sent to the public specifically states the closed session occurred during our 3 p.m. session which means any vote coming out of closed session would also be part of that 3 p.m. session. This was announced to the public days in advance.
Republicans in the House of Delegates offering amendments to the governor's proposed budget during the August legislative special session were given just two minutes to explain their proposals. Democrats in the majority then motioned to kill them one by one without further discussion. The budget included a "language amendment" that gives state public bodies the ability to meet electronically -- without a quorum physically present in one place -- when hear comment or presentations. A spokesperson for the Appropriations Committee Chair, Del. Luke Torian, said the provision was offered because "it's simply much easier to hold informational meetings -- not meetings where votes or other formal actions are taken -- and have good attendance when members can join virtually." VCOG's Megan Rhyne, who was not aware of the proposal until it appeared in the budget, said the proposal should have been vetted through the FOIA Council.
General Assembly Democrats met in private to discuss the dozens of applicants that had been selected for consideration to fill the six new seats, plus two vacant ones, on the Virginia Court of Appeals. When the lawmakers emerged, they announced that exactly eight candidates would be publicly interviewed. The public received just 15 hours advance notice of the time and place of those interviews, where all eight were approved. VCOG's Megan Rhyne criticized the limited notice, which impacts the public's ability to arrange their schedules to attend.
In a story about how police departments in Maryland and Virginia handle release of information about closed criminal investigative files, The Washington Post quoted FOIA Council Director Alan Gernhardt's advice: "When it doubt, give it out."
At a specially called meeting, with no published agenda, Eastern Virginia Medical School announced its president and provost would be leaving the institution and would be replaced by a temporary appointee. When asked about the lack of an agenda (which is not required by FOIA but which nonetheless alerts the public to topics that may be of interest to them), the rector said, "Quite honestly, we were going into closed session (today), and the purpose was to have a decision on who was going to be the rector and vice rector. That’s why there’s no agenda. We knew why we were coming here — to make that decision.”
According to a search warrant affidavit, when police seized the government-issued iPad used by Roanoke City Councilman Robert Jeffrey, as part of an ongoing embezzlement case against them, they found the tablet had been wiped of data remotely.
Prior to the Staunton City Council board retreat, a former city manager said that there's a different dynamic to discussions when the public is present. He said the members may have a more effective or open conversation without eyes on them, but that it's critical that government is open to the public and it doesn't appear that there is any secrecy. The tradeoff lay in the publicity, he said. The News Leader reported on the retreat and noted that in its final hours, members stood up, shouted, slammed fists and cried; they also accused one another of lies and insults.
Following a closed session, the Dayton Town Council adopted a resolution rebuking and reprimanding a fellow council member for her conduct at a July meeting where she and audience members were said to have repeatedly interrupted staff as they presented a draft yard-sale ordinance.
The fourth member of the Pound Town Council to leave the council since June said the "antagonism, distortion of facts, animosity and spite that has been cultivated at council meetings" had made it "agonizingly difficult to make headway on the many serious challenges" facing the town.
After the governor's emergency declaration for COVID was lifted at the beginning of July, the Virginia Department of Health stopped reporting the specific locations of COVID-10 outbreaks, including for school districts. A law passed in last year's special session clarified that outbreaks in congregant settings during an emergency had to be reported. In a response shared with VCOG by Virginia Public Media, the Virginia Department of Health said now that the emergency order had been lifted, the health commissioner was using his discretion to not release the data in order to preserve the anonymity of each patient. Once it was pointed out that there was nothing preventing the commissioner from releasing the data, the information was again released.
The editor of the JMU student newspaper, The Breeze, sued the university for alleged FOIA violations stemming from the school's invocation of a federal student education rights law in denying the paper access to records of campus COVID-19 outbreaks by dorm. The headline the day after the hearing on the case was not, however, about the law's application, but about the school's admission in an affidavit that it wasn't even tracking cases by dorm at the time of the FOIA request. A ruling in the case is expected by mid-September.
A Suffolk woman sued the city school board for FOIA violations arising from the board's insistence that no members of the public be allowed in the same room as the board members during their retreat. Though the notice did not mention that there would be anything unusual about the meeting's set-up, the public was required to watch the meeting on a TV feed in another room. The woman insisted she was entitled to stay in the room to watch, but the council had police escort her not only out of the meeting room but out of the building. A court date has been set for Sept. 14. Read the complaint.
A Newport News judge was asked by both the defense attorney and the prosecutor to bar the public and the press from the trial of a man accused of killing a Newport News police officer early last year. The media should be excluded because it is a "high profile case," they argued, and that publicity "may result in further public hostility toward" the defendant, the motion said. The move coincided with a filing by the Daily Press and The Virginian-Pilot's requesting that the Virginia Supreme Court hear their complaint that another Newport News Judge improperly closed the courtroom in April for a hearing on a motion to revoke the bond of a police officer who has been accused of murder.
Confusion reigned when Martinsville and Henry County both met to adopt resolutions related to the process to revert Martinsville from city to town status. County supervisors adjourned their meeting on and cleared the room of the media and public in order to meet in closed session, then reconvened in public without announcement and voted, 4-2, in favor of the resolution. But City Council members were unaware a vote in the county had taken place and became concerned the county may have reneged.
The mayor of Roanoke is considering whether the annual state of the city speech, which used to be public but was then turned into a ticket-only event held by the Chamber of Commerce, should once again be made into a free public event.
The Buchanan County School Board received a legal caution from the Freedom From Religion Foundation in Wisconsin about the board's practice of starting meetings with a "Christian prayer."
