January brought with it frigid temperatures, the first legislative session in a gorgeous new building, a win for the citizens of Richmond and, oh yeah, secret ballots. VCOG has been busy writing up materials on bills before the General Assembly, testifying at committees, lobbying legislators and working with its 2024 legislative intern. We've also been laying the groundwork for our spring conference. We also joined an amicus brief NPR is bringing against the Department of Corrections. No rest for the freezing!

Weeks after Richmond Public Schools received a report conducted by the Sands Anderson law firm on the deadly shooting following a high school graduation ceremony in downtown Richmond, the public finally got a look at it -- subject to a few redactions -- when a judge ordered its release.

The district refused to release the report when it received it this fall, saying the whole thing was exempt from disclosure as attorney-client privileged. The company that owns the Richmond Times-Dispatch, WTVR and an open government advocate filed suit to force the report's release. Testimony at the Jan. 12 hearing focused on the fact that the resolution authorizing preparation of the report did not say the board was seeking legal advice. Judge Riley Marchant granted the plaintiffs' request to review the report in chambers over the weekend, and the following Tuesday he ordered the report's release. "Clearly nothing within the four corners of the ... resolution sought legal advice," the judge wrote, adding that a "non-privileged document does not somehow become privileged simply because it includes information the owner would prefer not to disclose."

The report detailed the events leading up to the shooting and took note of missteps made by school personnel, graduation organizers and those in charge of security at the event venue. Some school board members criticized the inconsistencies between the internal report prepared soon after the shooting and the Sands Anderson report. The school board chair said her biggest regret was that people who thought their interviews with Sands Anderson attorneys would be confidential "feel betrayed" by the report's release.

The case illustrated yet another example of the limits of the attorney-client exemption in FOIA. Even though the Supreme Court of Virginia ruled in 2018 that the exemption is not an absolute cover for everything an attorney does, lawyers and law firms continue to try to say that it is.

VCOG has consistently stated that parts of a report that do touch on legal advice and the attorney-client relationship should be redacted, leaving the rest of the record intact. VCOG has also said that an external report that seeks to detail the before and after of an incident (such as the shooting deaths of three football players at UVA) is not a document protected by the attorney-client exemption simply because it was prepared by a lawyer or a law firm.

Join us April 18 in Yorktown for another jam-packed day of panels, speakers, tips, trends and networking. Register to attend, sponsor the lunch or otherwise donate.

The brand new, beautiful General Assembly Building opened for the 2024 session. It's a lovely space in which to do the people's work.

Unfortunately, legislation VCOG thinks is not in the best interests of citizens who are trying to watch their appointed and elected officials in action or wanting to see the records of their local, regional and state governments has not been going too well.

To be fair, several legislators have been open to amending their bills to address narrow concerns raised by VCOGs, but some of the big-ticket bills we're following are going through (or not) on near-unanimous votes of Democrats and Republicans.

Approved are bills that further chip away from in-person meetings by letting more people participate remotely while also counting towards the physical quorum, and that allow twice as many all-virtual meetings that what was previously allowed. The Senate approved a bill that would redefine the definition of "public business" in the context of public meetings, changing the definition in the context of "public records" right along with it. The House will take up an identical version of the bill next week.

Defeated was a resolution requested by VCOG and carried by VCOG's delegate directing the FOIA Council to create a workgroup to study the way fees are charged for FOIA requests. The vote was unanimous, and the committee did not take public testimony.

On a bright note, though, there is movement on a fee bill coming out of the Senate. It's a compromise bill with a one-year sunset that would require study of its provisions in the coming year. And a bill VCOG requested to give the public a head's up on nominees to fill a local government board vacancy moved forward.

Read VCOG's write-up of the various meetings where these actions occurred.

Both House and Senate have experienced some technical glitches when taking online public comment. That's to be expected. However, video testimony in the Senate has further suffered from narrow rules where participants must sign up 30 minutes prior to the meeting (not earlier!) and cannot submit written comments as they can in the House.

Several subcommittee and committee chairs in both chambers have curtailed the length of time any one speaker or any one side of a bill can speak. As a lobbyist, I get it. But as an advocate for the public, I am disheartened when I see citizens who have taken time off from work or school, traveled, made arrangements with their families -- and incurred costs along the way -- to speak to their elected officials get cut off or rushed. Their carefully prepared remarks are preempted by admonitions to be brief, and to somehow coordinate on the fly -- and often with strangers -- to make sure everyone gets to say their piece in the allotted three to five minutes. If lawmakers feel so rushed that they can't let these citizens have their full say, perhaps the solution is to file fewer bills. ¯\_(ツ)_/¯

A circuit judge in Augusta County ordered the county to turn over recordings a member of the board of supervisors made during a closed meetings. The saga started when the county demanded the supervisor turn the tapes over to them. In a court challenge to the propriety of the closed session where the recording was, a district court judge said the recordings weren't public records. But the circuit court said they were. In response to the first case, the board of supervisors created a new rule to prohibit recordings of closed meetings, and they also voted 6-1 (with the one no vote being that of the supervisor who made the recordings) to appeal the ruling to the Court of Appeals of Virginia.

Citizens of King George County watching the first meeting of the new board of supervisors on YouTube couldn't hear what was being said after the board came out of its closed meeting, but they could still see a literal changing of the guard, as the county attorney exited the meeting, as Sen. Richard Stuart entered and assumed the county attorney's position, presumably in reaction to the new board's discomfort with the deal with Amazon overseen by the outgoing attorney.

When the Frederick County Planning Commission met to select its new leaders, the chairman had each member write their choice for board chair on an index card. The cards were collected and counted by staff. FOIA prevents the use of secret ballots.The county attorney later said images of the cards could be obtained through FOIA and will be in the meeting minutes.

The charges lodged against two citizens who refused to leave an unruly school board meeting in July were dismissed in exchange for the citizens performing community service.

The chair of the Charlotte County Board of Supervisors was arrested and charged with felony perjury and misdemeanor charges related to the accuracy of information he provided on his annual statement of economic interest. The charges followed an investigation by the Office of the Attorney General.

Charlottesville police sealed a search warrant served on the man eventually arrested for two attacks on the Rivanna River Trail. One expert found that level of secrecy unusual for a misdemeanor case.

Records obtained through FOIA by The Progress-Index showed that a town council member continued to make purchases on a city credit card related to an out-of-town conference that he could not attend because of conditions imposed on him by a judge in another case involving his spending.

A new member of the Nottoway School Board said that during orientation in December, officials were instructed to set their mobile phones to auto-delete text messages. She claimed a colleague said that while records are subject to FOIA, “If it’s not there, it didn’t happen.”

The Freedom from Religion Foundation sent a letter to the Rockingham County School Board asking the body to stop opening its meeting with a prayer. The board previously included a moment of silence but switched to the prayer when new members of the board were sworn in.

Just because there's been a change in leadership and makeup of the Spotsylvania County School Board doesn't mean there's been a change in tone at the meetings. Similar to how it's been over the past two or more years, members argued about the propriety of a closed meeting. After the closed meeting, the board voted to place the school superintendent on administrative leave.

Members of the Warrenton Town Council sparred during their late-January meeting over whether it was proper for two or more of its members to hold side meetings with Fauquier County officials and a developer over adjusting the town's boundary lines.

When Richmond Public Schools released the report on the graduation-day shooting, it also released more than 1,000 exhibits. A week after the release, it was disclosed that the law firm that prepared report did not include in those exhibits an interview with the RPS superintenden that indicated he had advised the high school's leaders to help the mother of the student who was eventually killed in the shooting.

In its first meeting following the court-ordered released of the graduation-day shooting, the Richmond school board went into closed session, citing the exemption for potential litigation, so its attorney could advise them on how to shape their public conversation about the report's findings.
 

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Williamsburg VA  23187
540-353-8264
vcog@opengovva.org