Sunshine Report for January 2021

FOIA Council endorses some
proposals, rejects others.

The FOIA Council lent its divided support to a proposal that would expand the number of times and circumstances under which an individual member of a public body can call into a meeting instead of attending in person. VCOG does not support the measure and actively opposed an attempt by a letter-writing campaign to remove any and all barriers to call-in participation. The measure was pushed as one that would allow more women to run for political office, but council member Bill Coleburn -- both the mayor of Blackstone and publisher of the local newspaper -- pushed back on that notion: “You don’t go knockin’ on doors and say ‘You know what, if I get elected by golly I’m going to legislate through my laptop and fight for you.”

The council unanimously supported a measure VCOG worked on with the Virginia Press Association, Virginia Municipal League and Virginia Association of Counties to amend the existing rules for virtual meetings held during an emergency to allow public bodies to discuss more than just the specific emergency. The pandemic laid bare the problem of extended emergencies and the inability of public bodies to talk about providing the everyday services of government.

The council endorsed a proposal to clarify that citizen contact information would not be disclosed when citizens sign-up for one-way communication from their elected representatives, but the council rejected an attempt that would have allowed government to redact the contact information of citizens whenever they interact with government officials or employees. VCOG spoke against the measure.

Finally, the council unanimously endorsed a proposal to provide some measure of access to criminal investigative files that are no longer active or ongoing, a measure VCOG strongly supports.

-- Megan Rhyne


Megan's Notes


I had a few thoughts that I shared on Twitter on the response the Division of Legislative Services gave under FOIA when asked for the applications of the people who wanted to be named to one of eight citizen seats on the new redistricting commission. (SPOILER ALERT: I don't think the statute cited in support of withholding the applications actually applies.)

VCOG gathered two dozen advocates from causes across the ideological spectrum to sign onto a letter asking Speaker of the House Eileen Filler-Corn and House Clerk Suzette Denslow to implement a number of suggestions to improve the quality of the public engagement during the upcoming virtual 2021 legislative session, like displaying the name of who is speaking and making the queue of upcoming speakers available. The letter also suggests that lawmakers provide virtual office hours to allow one-on-one communication with citizens, advocates and lobbyists.

Read the letter and see who signed it

Want to track legislators and legislation in the 2021 General Assembly session but don't know where or what to look for? Check out our 8-minute (low-budget, but informative!) video on navigating the Legislative Information System and tracking legislation you're interested in.

Follow the bills that VCOG follows on our annual legislative bill chart.

The chart is sparse right now because not a lot of bills have been posted on the Legislative Information System, but the bills will be posted there in earnest this week and next in advance of the Jan. 13 start date and we will update our chart accordingly.

As always, if you hear of bills that you think should be on this list, let me know!

I had the pleasure of talking with This Week in Virginia host David Bailey in December about the challenges of COVID and public meetings, redaction, closed meetings, the virtual legislature and more.

Thanks, David!


Open Government in the News

According to The Smithfield Times, the Town of Smithfield, even months into the pandemic that keeps many citizens away from public meetings, still was not live-streaming its meetings, unique among other local governments in the area.

Jason Kessler, organizer of the Aug. 12, 2017, Unite the Right rally in Charlottesville, won a partial victory in a Charlottesville general district court in his lawsuit over access to text messages referred to in a book by the former Charlottesville mayor. The judge ruled the city violated FOIA by not providing the text messages that the city was in possession of at the time of Kessler's FOIA request. On the other hand, the judge also ruled that his court was not the proper venue to rule on Kessler's argument that the city failed to properly maintain other text messages by allowing them to be deleted. The city was ordered to pay Kessler's court costs. Kessler then refiled the case in the local circuit court, and on Dec. 28, a judge in that court ordered the city to neither destroy or delete any communications that might be related to the lawsuit as it proceeds. "I would think that anyone from second grade to 80 years old would look at this [and] say [preserving documents that may be found] makes sense."

After weeks of rumors, Tidewater Community College finally confirmed that the donors to its proposed culinary and visual arts center in downtown Norfolk had withdrawn their financial pledge. On the evening of Dec. 2, TCC released the Nov. 2 letter withdrawing the pledge without explaining why it had delayed in responding.

The Suffolk School Board continued to tinker with its internal operating procedures when a subcommittee considered four proposals for how much time to give to public comment periods. Among the proposals was one that would prevent citizens who speak for longer than their allotted time on an agenda item from speaking again on a non-agenda item.

The Richmond City Council considered, but ultimately rejected a proposal to eliminate a charter provision that requires the council to allow the mayor or a designee to attend the council's closed sessions

The Bedford County Board of Supervisors was cited by the health department for violating the state's pandemic restrictions during a public meeting to consider a "First Amendment sanctuary county" that drew more than 100 people. The county administrator insisted that the county was exempt from the emergency order limiting gatherings to 10 people.

The Manassas City Council interviewed 16 candidates to fill a vacancy on the council left by the ascension of one council member to the mayor's chair. The council allowed each applicant to make a 3-minute pitch in closed sessionbefore whittling the pool down to four finalists and then choosing one. Shenandoah County also held closed-door interviews with applicants to fill a vacancy on the board of supervisors. It's a legal and not uncommon practice, but that worries InsideNoVa, who observed in an editorial, "We can think of no reason that justifies going into closed session to appoint someone to a position that is usually elected."

Senator Bill DeSteph, R-Virginia Beach, reached a settlement with Speaker of the House Eileen Filler-Corn, D-Springfield, and Senate Rules Committee Chair Mamie Locke, D-Hampton, over physical access to legislator offices in the Pocahontas Building during the upcoming General Assembly session. The House will be meeting virtually for all of its committee meetings and floor sessions, while the Senate will meet in-person at the Science Museum. No meetings are scheduled for the Pocahontas Building and it is unclear how many legislators will be using their offices. (See VCOG's letter on improving virtual access to the session.)

The Chesterfield County general registrar provided public records that directly rebutted an allegation made by Sen. Amanda Chase, R-Midlothian, who is running for governor, that there were voting irregularities in the county.

Lynchburg City Schools decided that beginning in January, in-person public comments would no longer be allowed. Citizens will have to email their comments or leave a voice message. The public would still be allowed to attend in person, just not comment.

The Rappahannock County Board of Supervisors had to hold a re-vote on whether the Rappahannock-Rapidan Community Services Board would become the Region One administrator of the newly implemented Marcus Alert system. A supervisor pointed out that as an added item to the agenda, the decision required unanimous consent, yet received only a 3-1-1 vote in support.

Also in Rappahannock County, the plaintiff in a long-running FOIA lawsuit with the county over an improper closed meeting said she would appeal the judge's decision to award her only $6,250 of the $132,000 in attorney feesshe asked for.

A petition seeking the removal of the mayor of Pound included among the several allegations made in support of removal that the mayor "act[ed] in a dictatorial manner," "behav[ed] in a manner consistent with a mental impairment and mental instability” and "violat[ed] the confidentiality provisions of the closed session exemptions to FOIA by making repeated public disclosures of matters discussed in closed session."

Hampton announced in December that it was postponing nonessential public hearings and canceling its upcoming Hampton Planning Commission meetings until at least February. Mayor Donnie Tuck said that what meetings are held would be held with a quorum physically present in council chambers, while others would participate online. Elkton, too, said it would be going back to all-virtual meetings in January, citing the steadily rising number of COVID-19 cases in the area.

The Richmond Redevelopment and Housing Authority’s board of commissioners voted to approve an application for the next phase in demolishing Creighton Court, but the agenda for the meeting wasn’t posted to RRHA’s website until earlier that morning, leaving many citizens without enough time to register to offer public comment.

A new COVID-19 dashboard debuted on the Virginia Department of Health's website, following legislation passed during the special session -- and worked on by the Virginia Press Association and VCOG -- that details outbreaks in congregant settings, like schools and long-term care facilities.

A member of the Southampton County Board of Supervisors sued the local school division on Dec. 18 over the division's alleged failure to respond to his FOIA requestwithin the statutory deadline.