Was it necessary?

The Supreme Court of Virginia issued a unanimous decision today in a case styled Berry v. Board of Supervisors of Fairfax County. My hot take is that this could open the door to challenge a lot of decisions taken during the first 15 months of so of the pandemic. But, I also know that as a non-practicing attorney, I could be overstating the decision’s reach. I need litigators and local government attorneys to weigh in.

So, here's what happened in Fairfax.

In March 2021, the BOS adopted a broad update to its zoning ordinance that they called Z-Mod. The review leading to the update began in 2016. In March 2021, a year into the COVID emergency, the county was operating under its continuity of government ordinance.

At that time Virginia FOIA had a mechanism in place allowing localities to meet all-electronically (i.e., no one physically present) in the case of a declared emergency so long as the meeting was about the emergency. That gave localities the ability to meet in the first weeks of the COVID shutdown to talk about the COVID shutdown.

But it didn't give them leeway to meet electronically for any non-emergency matters. So, shortly after the COVID shutdown in March 2020, two things happened: (1) localities used their power under § 15.2-1413 to enact continuity of government ordinances that allowed them to suspend certain statutory requirements. The ordinances they adopted usually included provisions to allow them to meet electronically.

And (2) in April 2020, the General Assembly adopted an amendment to the budget that specifically authorized all public bodies to meet electronically during an emergency within certain parameters when the purpose was to conduct statutorily required or necessary business and the discharge of its lawful purposes, duties, and responsibilities.

The General Assembly passed legislation similar to the budget language (with one critical difference, which I'll get to in a sec) that went into effect July 1, 2021, so the court's review in this case uses FOIA as it existed before that.

The Court ruled for the four county citizens who challenged the vote on Z-Mod. The court confirmed what we all knew at the time, which was that FOIA as it existed prior to 2020 and up until July 2021 did not allow for all-electronic meetings except in emergencies and only for topics about that emergency.

The Court then ruled that the county's continuity of government statutedid not allow them to vote on Z-Mod in an electronic meeting. The ordinance allowed them to waive FOIA's meeting procedures, but only for actions limited to those "necessary to assure the continuation of the County’s essential functions and services." 

The common thread of the six listed essential functions/services (the court acknowledged the list was not exhaustive) was a temporal one, where time was of the essence. "In short, the Board enacted emergency procedures to deal with exigent business when an emergency made following normal procedures impossible or nearly so."

Z-Mod wasn't such a time-sensitive matter. The review process had been initiated many years before the pandemic, and there was no evidence that the county's operation would be thrown into "minor distress let alone chaos" without its passage.

The Court then decided that the budget language of April 2020 didn't give the county the authority to act on a non-essential matter like a zoning revamp. The budget language required two conditions, the court said: (1) business must be “necessary to continue operations" AND (2) be in the discharge of the body's lawful purposes, duties, and responsibilities."

The phrase "necessary to continue operations" was limited in the same way that the continuity ordinance was to include only certain actions: "The budget language cannot be construed as a wholesale license to ignore VFOIA's open meetings requirements in conducting any and all business that the Board might wish to conduct."

In a long footnote the court used the July 2021 legislation to bolster its holding. That legislation used an OR instead of an AND to say that electronic meetings can be held during emergencies to "provide for the continuity of operations of the public body OR the discharge of its lawful purposes, duties, and responsibilities." In other words, because this language was either/or it was broader than the budget language.

Phew. That's a lot. But here's why it's potentially a big deal. The court VOIDED Z-Mod. Voided it!

So, if a locality had a continuity ordinance that was similar to Fairfax’s that limited actions to those that were somehow time-sensitive but they nonetheless voted on measures that were NOT time-sensitive in an all-electronic meeting during the period between the pandemic shut-down in March 2020 and the July 2021 legislation, there could be a massive reckoning.

Did the Supreme Court just open up all such "regular" board action to similar challenges as being void? I don't know. I'm an attorney, but not a local government attorney and because I don't practice, I'm not well versed on Virginia case law on mootness, ripeness and remedies, which the court spent a considerable amount of time on.

But it's definitely worth a closer look.