Transparency News, 3/23/20


March 23, 2020
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state & local news stories
Read the Attorney General's opinion on public meetings referenced in the story below.

An opinion from Virginia Attorney General Mark Herring gives governing bodies more leeway to not meet in person going forward. Public bodies can meet virtually to discuss pressing matters during the governor’s declared state of emergency, but not all business can be conducted through telephone or video conferences. “It is my view that Code § 2.2-3708.2(A)(3) permits public bodies that are unable to assemble in person because of the unique characteristics of the COVID-19 virus to meet electronically to make decisions that must be made immediately and where failure to do so could result in irrevocable public harm,” Herring wrote. In the opinion, Herring wrote that the law has three requirements for allowing public bodies to hold virtual meetings: the governor has to declare a state of emergency, it is unsafe or unpractical to assemble members in person and the purpose of the meeting is to address the emergency.
Daily Press

Local governments scrambling to conduct board and council meetings while respecting social distancing and coronavirus safety concerns were provided limited leeway by an opinion on the matter from Virginia Attorney General Mark Herring. Herring cautioned that even during a state of emergency declared by Gov. Ralph Northam, Virginia’s Freedom of Information Act and meeting transparency requirements remain in effect. “That fundamental commitment to openness must be upheld and maintained even as we consider alternative methods to conduct the operation of the government,” Herring wrote.
The Roanoke Times

Monday’s won’t be a normal meeting of the Richmond City Council, if ever there has been one.  The council will meet to vote on ordinances unrelated to the COVID-19 pandemic. However, the meeting cannot bring more than 10 people to the council chambers, or else it would flout public health guidance meant to slow the spread of the coronavirus. A fully remote meeting — the safest option, council members agree — is not permitted under state law because the business does not pertain to the state of emergency. Localities lobbied Gov. Ralph Northam and Attorney General Mark Herring last week for permission to skirt open-meeting law provisions requiring this, given the circumstances. Herring issued an opinion Friday night outlining flexibility localities have to conduct meetings electronically during the emergency. However, the opinion reaffirmed what Brown told council members last week: At least five of the nine members still must be physically present to vote. All council members agreed the circumstances should not inhibit residents from giving input or tracking issues that are important to them. A public comment period is still scheduled.
Richmond Times-Dispatch
stories of national interest
132 organizations have signed a statement to state, tribal and local public institutions voicing concerns about transparency and access to meetings and records as these institutions respond to the Coronavirus emergency. Organizations representing diverse constituencies and political ideologies have joined together to advise these governing bodies that real time public engagement in government proceedings and unfettered access to information must not be sacrificed in order to streamline deliberations and decision making. 

First, Oklahoma lawmakers excluded the public from the Capitol because of coronavirus concerns. Then with the public gone, lawmakers made an emergency change to the state’s open-meetings law to let all governmental entities meet via video or teleconference, so long as people can watch or listen remotely. Across the U.S., numerous governors, lawmakers, mayors and county officials have made similar decisions to keep the public away from public meetings — all for the sake of public health. Ironically, the sudden policy shift has played out during the annual observation of “Sunshine Week,” a seven-day period intended to highlight the importance of open-government policies. Legislators in Maine and Tennessee also excluded the public from their buildings. South Carolina lawmakers asked lobbyists and visitors to stay away. The Pennsylvania House and Senate each voted to change their rules this past week to allow members to participate and vote remotely. And New Jersey Gov. Phil Murphy, a Democrat, signed a bill Thursday letting the Legislature meet remotely using technology.
Associated Press
"Real time public engagement in government proceedings and unfettered access to information must not be sacrificed."


editorials & columns
"It is critical to democracy that members of the public have access to the information they need in order to make good decisions about government."
State and local governments are facing an unprecedented challenge as they try to comply with federal and state instructions on limiting the spread of COVID-19 while also trying to comply with laws regarding public access, open meetings and open records. For now, they’re improvising — trying to walk a line between two important mandates. As freedom of information expert Megan Rhyne says elsewhere in today’s Commentary section, local governments should be granted some slack as they seek to navigate this new territory. Ms. Rhyne, who is executive director of the Virginia Coalition on Open Government, says that local governments should be granted some leeway while they’re figuring out this unprecedented challenge. In our experience and observation, that’s exactly what open-government advocates and media outlets such as The Daily Progress have been doing. It is critical to democracy that members of the public have access to the information they need in order to make good decisions about government, and access to their elected leaders in order to convey their opinions on such decisions. In a crisis, an environment in which misinformation can dangerously spread, this access might be even more important than usual. But it’s also vitally important that the health of officials and members of the public alike be protected. This crisis can be contained only if people voluntarily restrict their access.
The Daily Progress