Virginia FOIA Council supports looser rules for public officials governing remotely

By: - December 2, 2020 5:08 pm
Virginia State Capitol

The Virginia State Capitol. (Ned Oliver/Virginia Mercury)

The Virginia Freedom of Information Advisory Council on Wednesday declared its support for loosening state laws on electronic meetings, backing legislation to give members of local boards more leeway to call in to public meetings instead of attending in person.

Supporters of the change, which still has to be approved by the General Assembly, say it would help more people juggle their private lives with the duties of serving on public boards. Many proponents say it could be particularly helpful for women, who often act as primary caregivers for children or family members who are elderly or sick.

But skeptics, including the Virginia Coalition for Open Government and the Virginia Press Association, warned against a sharp departure from the state’s longstanding preference for in-person meetings, which allow face-to-face accountability to the public in a way virtual gatherings can’t.

Under current law, members of public bodies can only cite personal matters to participate electronically two times per calendar year. The proposed revision would allow members to participate electronically in up to a quarter of all meetings in a calendar year. Some had called for eliminating that cap altogether, allowing elected officials or volunteer board members to participate virtually as much as they want.

The FOIA Council voted 10-2 to recommend approval of the change, though the final decision will rest with state legislators.

The 25 percent cap was presented as a compromise between no cap at all and a 10 percent cap included in initial legislation filed earlier this year by Del. Mark Levine, D-Alexandria. That bill passed the House of Delegates, but was sent to the FOIA Council for additional study. The proposal would also expand a rule allowing members to participate remotely due to illness or disability, broadening it to also cover caring for family members with medical issues.

If approved, the change would apply to all public bodies, including city and town councils, county boards, school boards, higher education boards and state and local advisory boards and commissions.

Though the idea for the bill emerged before the COVID-19 pandemic, several supporters said the recent shift to virtual meetings has shown state laws can be changed to modernize how public officials conduct business. A similar but less controversial proposal endorsed by the FOIA Council would codify a recent change allowing public bodies to meet electronically during declared emergencies, regardless of whether the business at hand deals with that emergency.

The council was more divided over the push to allow officials to participate in meetings remotely in non-emergency situations, with some saying the concept runs contrary to the FOIA Council’s 2008 policy statement declaring in-person meetings “should continue to be the rule rather than the exception” and that showing up in person is “one of the primary responsibilities of accepting public office.”

Proponents of the change say several safeguards would remain in place to prevent public officials from abusing their call-in abilities. 

For starters, a quorum of the public body would still have to convene in person.

“The dystopian fear that we all appear by hologram, I don’t think that’s feasible,” said FOIA Council member Cullen Seltzer, a Richmond lawyer.

Any member who wanted to participate electronically would have to publicly state what kind of personal matter kept them away.

“If the public doesn’t like it… the public can throw them out of office,” Levine said at a FOIA Council subcommittee meeting last month.

The change is supported by numerous local officials from Northern Virginia, as well as groups that work to promote women in public service.

In a letter sent to the FOIA Council last month, the Virginia chapter of the American Association of University Women wrote that the state’s “narrow approach” to electronic participation limits who serves in public office.

“We believe that the restrictions on participation in meetings of public bodies by electronic communications are antiquated and ignore the life circumstances and experiences found in the diverse population, limit citizen participation to the privileged few and adversely impact participation by single parents, women and other underrepresented populations,” the group wrote. 

At Wednesday’s meeting, several elected officials said they might benefit from more flexibility.

“As a mother with two young children, if my husband is out of town for work and I’ve got one sick, I don’t want to miss a meeting,” said Fairfax County School Board member Melanie Meren.

At last month’s subcommittee meeting, FOIA Council member Billy Coleburn took exception to the idea that rules requiring in-person attendance hurt women, calling it “offensive to both women and men.” Showing up, he said, is the “path you choose” when you run for public office.

“You don’t go knockin’ on doors and say ‘You know what, if I get elected by golly I’m going to legislate through my laptop and fight for you,’” said Coleburn, who serves as the mayor of Blackstone and the publisher of his town’s newspaper. “The citizens decide diversity based on who they elect.”

At last week’s meeting, Bruce Potter, the publisher of InsideNoVa, said virtual participation doesn’t allow the same level of access to public officials.

“The reporters, the public, don’t have unfettered access to that person,” Potter said. “When the meeting is over they hang up and they go away.”

Potter and Coleburn were the two members who voted against the measure.

Sen. Mamie Locke, D-Hampton, who chairs the FOIA Council, said nothing in the legislation would prohibit members of the public from following up with a public official who participated remotely.

“They may not be able to physically come to them after a meeting,” Locke said. “But they can still contact them.”

If the proposed change becomes law, public bodies could still set stricter rules on virtual participation. Any push to embrace newer technology, she said, should prioritize citizens’ ability to witness what governments are doing.

Megan Rhyne, the executive director of the Virginia Coalition for Open Government, told the council she’s been convinced officials need more flexibility, but her group wasn’t ready to endorse the proposal.

“It is not to be used necessarily for the benefit of elected officials to make their difficult jobs more convenient,” Rhyne said. “That is an unfortunate and very cold-sounding kind of statement, I realize. But that is part of the public service model.”

The FOIA Council rejected a more sweeping proposal that would have created new layers of secrecy around correspondence with members of public bodies. State law already creates protections for people who give a public body their email address or other contact information while signing up for newsletters or other notifications. But the council considered broadening that protect contact information for all correspondence with a public body.

Proponents said it would help protect the privacy of people who may want to weigh in on controversial topics like Confederate statues or gun laws without exposing themselves to online harassment. But opponents said there was no way to create a FOIA exemption for that purpose that didn’t also create more secrecy for lobbyists, developers and others seeking to influence government decisions. Several council members noted the plan to create a new FOIA exemption for correspondence grew out of a legislative effort to protect public employees from email phishing attempts, a problem the proposed exemption didn’t seem to address.

That proposal failed on a 4-10 vote.

The council voted unanimously to recommend a third proposal that would require law enforcement agencies to disclose more crime information after an investigation ends. That proposal would also give victims’ families more access to sensitive police records. That legislation is backed by Jason Nixon, whose late wife, Kate, was killed during the 2019 mass shooting in Virginia Beach.

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Graham Moomaw
Graham Moomaw

A veteran Virginia politics reporter, Graham grew up in Hillsville and Lynchburg, graduating from James Madison University and earning a master's degree in journalism from the University of Maryland. Before joining the Mercury in 2019, he spent six years at the Richmond Times-Dispatch, most of that time covering the governor's office, the General Assembly and state politics. He also covered city hall and politics at The Daily Progress in Charlottesville. Contact him at [email protected]

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