Sunshine Report for February 2021

Virtual Legislature

The virtual General Assembly got underway Jan. 13, with senators meeting in-person at the science museum and delegates meeting via Zoom. The public does not have general access to the science museum, so lobbying, advocacy and testimony is being conducted online for both bodies. The House set up a block system for scheduling virtual subcommittee and committee meetings and does not go into a full session until 4 p.m. The Senate holds up to two in-person committee meetings at a time on either side of its noon floor session.

The House set up a mechanism for submitting written comments on a bill and makes the link to the comments available on every committee agenda. A similar repository does not exist for the Senate.

The pace has been fast and furious. Some public comments and even the members themselves have been cut off mid-sentence, and some subcommittee and committee chairs allow testimony of no more than 30 seconds. And, of course, there are the precious minutes lost to technical problems and queries of, "Can you hear me?"

VCOG is tracking a couple dozen bills, some of which have already been defeated and some that have been sent for study at the FOIA Council. Check out which bills are still moving forward on VCOG's annual bill chart.

-- Megan Rhyne


Transparency at our universities

The nonprofit Partners for College Affordability and Public Trust released a report grading each public university’s governing board from A to F on transparency, accessibility and receptiveness. The report was prepared earlier in the fall and then shared with university presidents before being made public. The report assessed each board's transparency, member accessibility and board receptiveness and clearly described what factors would be considered along with each score. George Mason University topped the list with a B+, followed by the University of Virginia with a B. Five institutions garnered a failing grade: James Madison University, Longwood University, Virginia Military Institute, Virginia State University and Virginia Tech. Speaking on behalf of the university presidents, VCU President Michael Rao said the report contained "multiple errors and omissions," while a Virginia Tech spokesman said "it is worth noting that the criteria employed . . . are not based on state law." True, but as stated by PCAPT President James Toscano, "If ever there was a time that illustrates the need for more access and openness regarding decision-making and best public practices — even if not demanded by the law — this is it."

FOIA & the Public Records Act

The FOIA lawsuit between Charlottesville and Jason Kessler, the organizer of the Aug. 12, 2017, Unite the Right rally, continued. Kessler has argued that he should have been given text messages referred to in a book by a former Charlottesville mayor. The city has said the messages had been deleted by the time Kessler asked for them. Kessler is arguing that the Public Records Act required the city to keep the messages. The city has responded that individual citizens don't have standing to enforce PRA violations.

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Filling a vacancy

With all due respect to my four feline housemates, there's more than one way to skin a cat when it comes to filling a vacancy on a council or board. Board members have up to 45 days to select someone to fill a vacancy prior to a new election. In January, the Culpeper County School Board held a public hearing for four applicants to make their case for why they should be selected, while the Norfolk City Council interviewed three candidates to fill a seat during a live-streamed work session.

On the other hand, Suffolk said it had 20 people apply for a seat on the city council but refused to identify any of them. In Front Royal, a new member was selected after closed-door interviews with four applicants. The Town of Grottoes also held closed-door interviews with the four applicants there.

An opinion from the attorney general's office says that discussions of potential board members can be discussed in closed session under the personnel exemption, but the opinion merely makes it permissive, not mandatory.

Those selected to fill the vacancies have the same voting rights and responsibilities as elected members.


Open Government in the News

Many parents in Richmond were at odds with the school board over whether and what board members could discuss related to the renewal of the superintendent's contract. Personnel records like these can be discussed in closed session but don't have to be. On the other hand, the superintendent's existing contract includes a provision stating that board members should not discuss the renewal publicly.

In response to a FOIA request from the Arlington branch of the NCAAP, county police released a video of an encounter between an officer and a Black man taking photographs near the gate to Joint Base Myer-Henderson Hall. A woman called police on the man, saying he was taking pictures of the base and of neighbors walking by. The man said the neighbor's call was racially motivated. Meanwhile, in Dayton, police released a video of an interaction between an officer and a womanfound sleeping in her car. The office released the video after the woman claimed the officer was rude.

The mayor of Pound lodged a sworn complaint before a Wise County magistrate claiming a fellow council member assaulted her during a recent meeting by approaching her on the dais and thrusting his cell phone up close to her face. During a later meeting, the mayor said to the member that she would "FOIA every text message you have."

It was 2:15 a.m. in early January when the Prince William County school board adjourned after calling for a special meeting to be held a a week later. 

The City of Martinsville discussed a report prepared by the Commissioner of Revenue raising concerns over the city's possible reversion to a town. But the city council did not discuss the report publicly, or even acknowledge its existence, until after the closed session when the council's newest member mentioned the report in her comments near the end of the meeting.

Just 10 minutes into the Prince William County Board of Supervisors' first meeting in 2021, members got into a partisan argument over seating arrangements on the dais. There were also motions suggesting that supervisors be limited in the amount of time and the number of times they could speak.

A Greene County Circuit Court judge sided with Greene County in a motion to quash subpoenas issued by Rapidan Service Authority regarding a reservoir project. Additionally, the judge ordered a protective order for both parties that prohibits either side from commenting publicly on any informationreceived until the court gives its permission.

Though dozens of Virginia Tech football players contracted COVID-19 last fall, the university continued to refuse requests for information on the number of athletes or athletic staff members who had contracted the disease. Though other universities have released this information, a Tech spokesman said it believed its interpretation "was consistent with applicable federal and state laws related to maintaining privacy of confidential student and employee records and information."

An offshoot of the University of Virginia's University Press has entered into an agreement with the University of Illinois Press to digitally publish the papers of Booker T. Washington. The papers, which span from 1901 to 1915, will be searchable and can be used in conjunction with other digital university publications.

The Portsmouth City Council voted to hire a former council member, and recent unsuccessful candidate for major, as the city manager. Perhaps because the member did not meet the educational requirements for the job and did not apply for the job, or perhaps because the item was not originally on the agenda, the council held a closed-door discussion, then returned to open session and took their vote back. The position remains open.

An employee in the public works department in Harrisonburg used his proficiency in Excel to expand the reach of a data toolpreviously available only through the U.S. Dpartment of Agriculture offices that helps producers of grazing livestock to project different outcomes based on different management practices. The new services is called VA Graz.

The Suffolk School Board voted 6-1 on a resolution to require one of its members to receive training in "the areas of management or leadership to include training relative to maintenance of confidentiality of certain School Board matters," as well as racial sensitivity training. The resolution was the byproduct of an investigation into a hostile work environment complaint filed by the school superintendent.

Nearly six years after its undercover investigation of the Natural Bridge Zoo revealed widespread cases of animal abuse and neglect, the Humane Society of the United States said that federal regulators have imposed a $41,500 fine. The fine was assessed in August 2019, but the humane society said it only recently learned of it through a Freedom of Information Act request.

The Front Royal town attorney reported to the town council that it collects thousands of dollars each year in responding to FOIA requests, also noting that employees may spend hundreds of hours complying with the request. The town received 91 requests in the first 19 days of 2021, he said, which could result in 1,700 to 1,800 requests for the calendar year.

The Richmond City Council was set to consider an ordinance that would make part of the city’s annual budget process more democratic, allowing residents to choose projects they want the city to fund. A City Council committee earlier voted to recommend the creation of a public commission for the initiative, known as “participatory budgeting."

The Richmond Redevelopment & Housing Authority implemented its public comment policy in January, which prohibited a frequent speaker and community organizer from speaking because he spoke at the December meeting and the policy only allows a person to speak once every three months.

The Charlottesville City Council admitted that its closed-door process for selecting a new city manager -- the executive director of the Thomas Jefferson Planning District Commission -- was not ideal. The new manager will be temporary, but permanent, meaning the city agreed to conduct a public search once leadership has stabilized, possible in 2022.