Transparency News, 5/8/20


May 8, 2020
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state & local news stories
"Virtual meetings are inconvenient and not the most efficient.” 
Virginia Attorney General Mark R. Herring has found that the General Assembly has the authority to meet electronically during a time of emergency such as the novel coronavirus crisis. Herring (D) issued an opinion Thursday morning at the request of House Speaker Eileen ­Filler-Corn (D-Fairfax), finding that language in the state budget permits the House of Delegates and the state Senate to convene remotely because Gov. Ralph Northam (D) has declared a state of emergency. Virginia’s Freedom of Information Act generally prohibits public bodies from holding meetings online. But the budget language that Herring cited Thursday was included in amendments sent over this year by Northam and passed during last month’s reconvened session. Northam has said he plans to call a special session of the General Assembly sometime this summer to address the budgetary impact of the pandemic, which is expected to carry costs and revenue shortfalls of about $3 billion over the rest of the fiscal year and the next two years. If the state of emergency is still in place, Filler-Corn said she will consider conducting the House session online. “It’s quite clear that we can do so,” she said.
The Washington Post
Read the AG's opinion on VCOG's website

As Virginia’s fight against the coronavirus pandemic stretches on, Gov. Ralph Northam has assembled a series of workgroups and task forces to coordinate the state’s response to specific concerns. The health equity working group first assembled on March 11, a few days after Virginia’s first confirmed case of COVID-19. In mid-April, Northam convened a long-term care task force to address rising outbreaks at nursing homes and assisted living facilities. A few days later, he announced a new testing task force amid reports that Virginia’s screening efforts were lagging far behind other states. But in the weeks since the groups were assembled, other details remain scarce, including in some cases who’s involved, when they’re meeting and what they’re talking about. While the administration publicly announced the members of its business task force, it’s still unclear who makes up the other workgroups and how they were selected. A published description of the health equity work group — available online through the Virginia Department of Health — notes that it includes “representatives from private human service organizations, advocacy and stakeholder groups, community leaders, and diverse faith leaders,” but provides no other specifics. There also appears to be little available information about meeting times, agendas, or public comment opportunities for any of the groups. None have been publicized on the state’s public meetings calendar for government entities.
Virginia Mercury

There's new hope for families struggling to find out how many positive COVID-19 cases or deaths have happened at their loved ones' nursing homes. The federal government is gearing up to release that information even though some states, like Virginia, have been keeping it secret. The Centers for Medicare and Medicaid Services (CMS), which regulates nursing homes, says it plans to post the name of each facility online, along with the number of positive cases and deaths among its residents and staff.  Nursing homes have always had to tell families about a change in their own loved one's condition and report outbreaks to the health department. But starting next week, they'll have to tell the CDC how many positive COVID-19 cases and deaths they've had among their residents and staff, and that information will be reported weekly going forward.

Virginia Beach City Council members will soon return to handling business in person. Due to the ongoing coronavirus pandemic, many area localities have been meeting virtually. While mayors, council members and city staffers gathered in city hall, other council members participated through video conferencing programs. The public could only watch from home. But officials said it can be difficult for everyone to communicate that way. "Virtual meetings are inconvenient and not the most efficient,” Mayor Bobby Dyer said Tuesday as the council prepared to meet Thursday in person. Plus, he said, the council had a lengthy backlog it needs to work through — 95 items, to be exact. According to acting city manager Tom Leahy, the city would allow up to 45 people in the room — including council members, key staff, reporters and concerned citizens. He thinks it’s manageable though. No public comment will be taken at this meeting, but 25 spaced out seats will be available in the council chamber if anyone wants to attend.
The Virginian-Pilot

Prince William County schools Superintendent Steve Walts temporarily suspended use of his Twitter account Thursday following news that the School Board has hired an independent outside firm to review complaints about messages to students and photos of Walts with students, including some in which his arm is around students. "Effective immediately, with great disappointment, I am temporarily suspending the use of this account," Walts said in a video posted on Twitter, calling the complaints “a partisan and personal attack" during his contract renewal period. Brentsville resident Guy Morgan, who filed the complaints in March and early April, told InsideNoVa on Thursday afternoon that he asked the school division to issue a retraction on Walts' message, because Morgan said he has not bullied children online. Morgan said the statement is false and defamatory.  Morgan told InsideNoVa on May 1 that he filed a Freedom of Information Act request with the school division requesting all of Walt’s direct messages sent from @SuperPWCS. Morgan said division staff asked him to narrow his request, because they found at least 10,000 direct Twitter messages that had been sent from Walts’ account over the past 14 to 16 months.  Morgan then randomly selected 10 student Twitter accounts that had previously publicly interacted with the Walts on Twitter, and requested direct messages between Walts and these students.  He received direct messages between Walts and eight of the 10 students, and referenced the messages and other public Twitter posts in his complaint, Morgan said. 
Inside NoVa
stories of national interest
“If U. S. Attorneys could prosecute as property fraud every lie a state or local official tells in making such a decision, the result would be…’a sweeping expansion of federal criminal jurisdiction.'”
Two days after refusing to divulge details of a secretive deal to purchase protective masks from a Chinese electric car maker, Gov. Gavin Newsom's administration abruptly reversed course on Wednesday — disclosing a 42-page document that only hours earlier was changed, requiring the company to reimburse the state $247.5 million by the end of the week. The repayment by BYD, through its U.S. subsidiary headquartered in Los Angeles, was attributed to a one-month delay in certification of the company's N95 masks. Those masks may not be approved for effectiveness by the National Institute for Occupational Safety and Health until the end of May. Newsom downplayed the setback during a coronavirus briefing earlier Wednesday, calling it a "little bit" of a delay and suggesting it was because the masks were a "new" product for the company to manufacture. "All these things work out themselves," he said. On May 4, the Governor's Office of Emergency Services rejected a request by The Times to disclose the contract, an agreement made between the state and BYD on April 7 and sought the next day under provisions of California Public Records Act. It is unclear why the administration changed its decision.
Los Angeles Times

After weeks of withholding it from public disclosure, state officials on Wednesday released the list of coronavirus deaths being compiled by Florida’s medical examiners. But the document was redacted to remove the probable cause of death and the description of each case. The omissions make the list meaningless, said Dr. Stephen Nelson, the chairman of the state Medical Examiners Commission. “You have to take the word from the government that these are deaths related to COVID-19,” said Nelson, who is also the chief medical examiner for Polk, Highlands and Hardee counties. “It loses transparency,” he said.

The U.S. Supreme Court on Thursday tossed the federal government’s case in the infamous “Bridgegate” scandal, clearing the convictions of two allies of former New Jersey Gov. Chris Christie. In a unanimous ruling that further chips away at the nation’s public corruption case law, the justices concluded that the two defendants — Bridget Ann Kelly and Bill Baroni — did not defraud the government of its “property” by closing off two local access lanes to the George Washington Bridge over three days in September 2013. Justice Elena Kagan said the kinds of decisions Kelly and Baroni made — and their less-than-candid explanations for them — could not be prosecuted as fraud under federal law. “If U. S. Attorneys could prosecute as property fraud every lie a state or local official tells in making such a decision, the result would be…’a sweeping expansion of federal criminal jurisdiction,'” Kagan wrote. “In effect, the Federal Government could use the criminal law to enforce (its view of) integrity in broad swaths of state and local policymaking. The property fraud statutes do not countenance that outcome.” The decision comes nearly four years after the justices overturned the conviction of former Virginia Gov. Bob McDonnell on the grounds prosecutors had wrongly mixed evidence of potentially illegal acts aimed at influencing official government actions with proof of routine courtesies.

Letting the Arizona Department of Health Services withhold information about COVID-19 cases elevates the financial interests of long-term-care facilities above the public’s right to know — and protect itself — the attorney for state news outlets told a judge Wednesday. David Bodney asked Maricopa County Superior Court Judge Christopher Coury to rule that the state health agency is picking and choosing what information it wants to release and to whom. And that’s not permitted by the state Public Records Law, Bodney said. The records being sought — the number of cases at COVID-19 at each of the facilities — are not public, said Craig Morgan, the attorney representing the department, and Cara Christ, its director. There are specific state statutes prohibiting the release of any information gathered by the health department as a result of “enhanced surveillance” orders like the one Christ issued to deal with the pandemic, Morgan said. Beyond that, Morgan argued that there are privacy issues that in a “balancing test” could outweigh the public’s need for the information.