Response to Hanover & a thanks

Last week, the Hanover County Board of Supervisors unanimously passed a resolution that would recommend amending the Freedom of Information Act's meeting provisions. The law currently prohibits more than two members of a board from meeting to talk about public business unless FOIA's public notice requirements have been followed. The Hanover proposal would change the law to allow three or however many other board members there are that do not make up a quorum to meet privately without triggering FOIA.

The Board chair said the proposal was being made to make communication between "senior staff" and the board more efficient.

The resolution specifically directed the board's attorney to circulate the proposal to the Virginia Municipal League, Virginia Association of Counties, Virginia Press Association and us, the Virginia Coalition for Open Government, for comment.

We took up the invitation and submitted comments July 31. They are reprinted below.

But before you read them -- and before you agree or disagree with them -- I want to take a moment to publicly thank the board for asking for our opinion.

The board has taken a lot of heat over this. And yes, I really don't like the proposal. But I am grateful that the board took this approach -- proposing and taking public comment -- instead of holding on to the idea, playing it close to the vest and then springing it on the public just as the General Assembly begins. Much better to air out issues now than in the time-compacted, hyper-charged atmosphere of the legislative session.

So, Hanover, thanks for asking!



Dear Mr. Peterson -
Thank you for asking Mr. Rives to forward the recent resolution and proposal adopted by the Hanover Board of Supervisors. Like last year, I appreciate your willingness to consider the perspective of our organization, which is a voice for the public’s right to know throughout the Commonwealth.
Because of our discussions last year, it will come as no surprise that VCOG is opposed to the proposed rule change. Mr. Rives asked if we might offer suggestions that would mitigate our concerns, but I’m afraid that I cannot. The proposal would weaken the public’s ability to monitor their government. There’s no fix for that. 
I regularly hear the frustration of citizens around the state who arrive at various board meetings only to find that the items on the agenda are voted on without any discussion. It is clear to them that even though the actual “decision” is being made in a public meeting, the discussions that have led to those decisions were not.
There is not a bright line between discussions and decisions. Decisions do not materialize out of thin air. They are sewn as ideas, then nurtured, weeded, pruned and watered through discussion. At some point in this process, the idea bears fruit; those engaged in the discussion eventually realize that they can agree on something and that “thing” is the decision. Voting in open session is essentially the ratification of what has already been decided. The public wants to see the whole transformation. And they should see that. It's part of what makes a democracy a democracy.
Using two-by-two meetings to have discussions, brainstorm or bring issues to the board from one’s constituents already somewhat interferes with the process. The text of that section states.
“nothing . . . . shall be construed to prohibit (i) separately contacting the membership, or any part thereof, of any public body for the purpose of ascertaining a member's position with respect to the transaction of public business.
We do not believe the section was intended to promote full discussion of public business outside of publicly noticed meetings, but rather to acknowledge that it would be impractical to completely prohibit members from interacting between meetings or asking each other how they will vote on existing matters. Expanding the law as proposed, however, would guarantee that this section was to be used as an alternative means of board discussion.
Consider, too, that as written, the proposal would allow, say, six members of the FOIA Council or the Virginia Code Commission to meet without involving the public. Thirteen members of the Richmond Regional Planning District Commission could, as could nine members of the University of Virginia’s Board of Visitors. The potential reach of the change would be devastating to the public’s right to know.
Finally, speaking directly to the resolution supporting the proposal:
1. It has been our experience at VCOG that the public values accountability over “efficiency.” They would not willingly sacrifice the opportunity to see and hear their representatives discuss public business in exchange for saving a few dollars or making it easier for members and staff to meet.
It is also difficult to reconcile the quoted section of FOIA in the second WHEREAS  statement, that citizens should have “every opportunity . . . to witness the operation of government,” with later statements that FOIA’s rules “complicate[] the duty of senior staff.” FOIA is not written for the convenience of senior staff or for board members.
2. The “analysis of difficult issues” is exactly what an elected public official is supposed to do in public. When running for election, candidates can't say enough about what they believe in and what they will or won't do in office. If the citizens are to have any idea about whether that elected official continues to represent the voters' values and beliefs they need to see and hear what the official is saying.
Again, I appreciate your willingness to seek our input. I’m sorry that I cannot agree with the proposal in any way.
All the best,
Megan H. Rhyne
Executive Director
P.S. I would also note that the proposed change in §2.2-3703(G) is wholly unnecessary. That part of the law states that “two or more” can meet informally. It is the proverbial "bump into" provision that allows board members to bump into one another in town -- at the store, a play, a community gathering -- without fearing that FOIA would prevent them from even nodding to one another. "Two or more" means two, three, “a quorum” or even all members of the Hanover board can attend the Hanover Tomato Festival at the same time so long as they aren’t there to discuss public business




The dayly VCOG is usually one of my first reads each day.  Before even the NYT online.  This letter is but one small reason why.

This is a perfect example of why I value VCOG so much!  Now I can prepare to go before city council to explain my shared concerns and to ask them to urge the Va Municipal League to oppose it.

I absolutely place much greater value on transparency than on "efficiency" that could put the governent's business even further from the public's eye. 

This letter was written in response to the RTD's editorial, not in response to VCOG's letter (though I did get a response that I will post later).

There’s nothing rotten in Hanover
Editor, Times-Dispatch:
Regarding your recent editorial, “Rotten tomatoes”: The tomatoes in Hanover are anything but rotten. They have a reputation of excellence as does our county government. The implication that our Board of Supervisors is trying to reduce transparency in government is off base and not supported by facts.
The Virginia Freedom of Information Act was enacted in 1968 and has been amended many times. It established transparency in the workings of government to ensure that all decisions affecting the citizenry would be made in public meetings. Nothing in our proposed amendment would change that.
The act currently defines a meeting as the assembly of three or more members of a local governing body getting together to discuss public business. (You are correct, these limits do not apply to the General Assembly.) Under our proposal, “three” is replaced by “a quorum.” As no governing body can make decisions without a quorum, assurances of transparency in FOIA would remain intact.
Your suggestion that the four meetings required in my example for communication of information to Board members could be replaced with one public meeting is pure exaggeration. That would mean citizens would have to pay to advertise a meeting whose sole purpose is to set the agenda for another meeting. That would be wasteful and ridiculous.
Citizens want transparency; but they also expect government to be effective and to spend their tax dollars efficiently. Hanover believes in doing both. All board and sub-committee meetings are public meetings and always will be.
Our amendment retains the protections of FOIA while minimizing the use of taxpayer funds for advertising and for paid employee man hours used for multiple and duplicative communications. Its acceptance would allow jurisdictions throughout the commonwealth to serve their citizens more effectively.
W. Canova Peterson, Chairman, Hanover County Board of Supervisors. Hanover.

While Mr. Peterson may sit on a board that has unselfish concern for  its constituents, not every board or council in the Commonwealth is blessed in such a manner. That's why this provision of the FOIA is so important.

If, as he says, Hanover is committed to being transparent while at the same time working for a more efficient government, It seems the board's attorney could recommend a committee-style approach that would allow no more than a quorum to meet at regularly scheduled times with senior administration to have the same, but fewer, discussions they're having now in 2x2s. The committee-styled meetings would be open to the public and the press, transparency would prevail and the load on administration would be reduced without the expense of advertising special meetings, etc.; and without changing the FOIA.

However, if the Hanover board's idea is to have more frank discussions and to air ideas that might not sit well with some parts of the public, and to do so behind closed doors, then Mr. Peterson's contentions are a ruse and the very reason we should not change the FOIA.

Great points, Ed! Thanks for weighing in.

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