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!

Megan

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.