Sunshine Report for November 2021

Carefully considering the use of electronic means for public bodies to meet

At the FOIA Council subcommittee on meetings on Oct. 5, I presented a draft I worked on with the Virginia Press Association, Virginia Municipal League, Virginia Association of Counties and the vice mayor of Alexandria, that attempts to simplify the whole section in FOIA dealing with electronic meetings -- from individual participation by phone, to hybrid meetings, to all-virtual ones -- in ordinary, non-emergency times. The draft is still a work in progress, thanks to the subcommittee's suggestion that the FOIA Council's director, Alan Gernhardt, take the draft and pretty it up (make it more in line with Virginia Code language) while stakeholders continue to talk about  some of our areas of disagreement.

Video of the hour-long meeting is here. You can hear comments from me, Aimee Perron Seibert of VPA, Phyllis Errico of VACo and Alexandria Vice Mayor Elizabeth Bennet Parker, but you can't see us because of the camera's positioning.

The full FOIA Council will next meet on Nov. 10 at 1 p.m., though the draft will not likely be on the agenda.

- M.R.

Roundup of board members behaving badly

Tempers flared on local public bodies in October, with two members of one board calling each other "wimps" and "stupid," while a male member of another public body called one of his colleagues a "hooker" and accused her of not wearing underwear to public meetings. The male member resigned. On a different board, two members got into a squabble when one member said someone on the board was a "mole." A county board censured a fellow member who they said breached closed-session confidentiality and made comments "construed as racist" about a fellow board member. That led to an exchange where the recipient of the comment signed up to speak during the public comment portion of the meeting and where the maker of the remark was told he could not respond because board policy does not allow back-and-forth between the board and speakers. And a school board member lashed out at his colleagues after they went into a closed session to discuss multiple things he'd done recently, including his criticism that it was juvenile to require school board members to raise their hands to vote. 

- M.R.

This month on Substack...

VCOG's Megan Rhyne sets the record straight on what the current law says about when and how a public body can meet using electronic means versus when and how the public can observe meetings in person and electronically. 

Using the recent announcement that an Oregon company given economic development incentives to locate in Roanoke is nonetheless closing up shop, Rhyne reiterates that several FOIA exemptions hamper the public's ability to track development deals that include promises and incentives.

Continued conflict at school board meetings

Public school boards continued to weather the storm of parental criticism over everything from critical race theory and mask mandates to transgender policies and requests to remove books from libraries. Many boards were taken aback when the National School Board Association sent a letter to the U.S. Department of Justice to ask for investigations into threatening behavior at meetings. The board eventually retracted its letter, but there's no indication whether the FBI is actually investigating.

Meanwhile, boards across Virginia continued to reconfigure their rules for public comment to deal with disruptions. The rancor caused a few board members across the state to resign, with an Isle of Wight board member lamenting on her way out that "politics has crept its way into our school."

Open Government in the News

Following a report by the Office of the State Inspector General found that the board's chair did not recuse himself from writing rules for Texas Hold 'Em poker tournaments that he could benefit from, a member of a joint legislative subcommittee studying charitable gaming receipts said it would consider stripping the Virginia Charitable Gaming Board of its regulatory authority -- making it advisory only -- to avoid future conflicts. The communications director for the Virginia Department of Agriculture and Consumer Services, under which the Charitable Gaming Board is housed, refused to provide the contact information for board members when a reporter asked for it.

A federal court judge found a Pittsylvania County supervisor retaliated against the former social services director for comments she made to a state social services board. The director was fired two weeks after she told the state board of growing community discontent with the local social services board, of which the supervisor was also a member.

The City of Charlottesville dealt with dueling secret recordings related to the sudden firing of the police chief. The mayor said there were secret recordings between the assistant police chief and the city manager that urged the latter to fire the chief. The mayor then produced recordings of her conversation with the city manager from this summer where the manager -- who resigned in mid-October -- referenced recordings made by the Central Virginia chapter of the Police Benevolent Association.

Three members of Prince William County's Racial and Social Justice Commission held a town hall on critical race theory without the other members of the commission, though three of the remaining five members did sit in the audience. The member who called for the session said his announcement at the Sept. 23 public meeting that he wanted to have a listening session adequately served as public notice under FOIA, even though FOIA requires posting notice and emailing it to anyone who has requested to be regularly notified. Three weeks later, he blamed the inadequate notice on staff.

A retired Virginia tax compliance supervisor committed suicide, five months after being charged with embezzling approximately $1.3 million in public funds, though he had repaid around $250,000. An investigation by the Office of the State Inspector General found that two tax department employees gave the man access to confidential taxpayer accounts on the tax department's database.

Prince George County held its first board meeting that was to be live-streamed and then archived on the Prince George website for the historical record. The county had been using Zoom to broadcast meetings and allow citizens who could not attend in person to comment during the meetings. Prince George said the Zoom link will still be available alongside the live-stream.

Despite there being repeated complaints about a CVS Pharmacy in Virginia Beach, the Virginia Department of Health Professions would release only a disciplinary order against the business, not the full investigative report into its practices. The director of communications said complaints against pharmacies are considered confidential under Virginia state code and she would neither confirm nor deny the existence of any ongoing investigations.

According to a report presented at the Cannabis Oversight Commission, Virginia has sealed records documenting more than 64,000 misdemeanor marijuana distribution charges since the state legalized the drug in July. The records were removed from the state’s criminal record database. Previously, when the legislature decriminalized simple possession of marijuana, some 330,000 records of charges were sealed.

While school boards across the state were restricting the rules for public comment, the City of Fredericksburg was expanding them, voting to give speakers five minutes of speech time, up from three.

An Alexandria resident obtained records through FOIA that showed a bail bondsman lent his gun and car to the man who used them both to kill the woman he was facing multiple assault charges, including rape, against.

Email obtained by the Tidewater Review showed that a member of the board of supervisors and the former Commissioner of the Revenue withheld information about an invalid tax assessment from the county administrator. In October, the board of supervisors hired the husband of the former commissioner to perform a tax reassessment of all county properties.

A Roanoke City Councilman said he would not leave office, "period," despite the 6-0 passage of a city council resolution calling him to. The request for the councilman's resignation comes after a grand jury indictment charging him with taking money from the city Economic Development Authority "by false pretenses."

An attorney for the Daily Press and The Virginian-Pilot asked the Virginia Supreme Court to take up its challenge to a Newport News judge's ruling barring the press from a pretrial hearing in the case of a Newport News police officer charged with murder. The judge who closed the proceeding cited recent publicity and "the nature of the case" as justifications for closing the hearing. The newspapers have also asked that a transcript from the hearing be unsealed.

A Warren County Juvenile and Domestic Relations judge closed a preliminary hearing for the former Christendom College professor charged with sexual assault. Though acknowledging the First Amendment implications of his order, the judge said the nature of the case, with the alleged victim under the age of 16, warranted closure.

The Richmond Police Department refused to release a no-trespassing list of people banned from Richmond Redevelopment Housing Authority properties. The list came under scrutiny in September when a recording of an incident led some to question the inclusion of three Black men on the list. The RRHA board ordered the men be taken off the list, but then rescinded that order in October when the board learned staff did not comply with the September order.

Residents of a deteriorating apartment complex in Richmond were told in late October that they would have to move. City inspection records showed that the city was aware of unsafe conditions -- including water-damaged rooms and stairwells caused by a leaking roof -- in August.

Emails obtained through FOIA show how the Sentara health system told the state's largest insurer, Anthem, that it would no longer accept Anthem insurance for its Medicaid and Medicare patients. Customers were never informed that they could be dropped, and Anthem filed a complaint with the Office of Attorney General for what it said was anticompetitive behavior.

Emails obtained through FOIA show that the Chesterfield County Public Schools chief academic officer told employees that before they enrolled in any training course, they had to sign a form promising the session doesn’t include critical race theory.

The Virginia Health Department cited patient privacy when asked whether the department had conducted contact tracing on the 10-year-old Suffolk girl who died of COVID-19 complications, or if the department knew how she contacted the virus.