Working the edges

Working the edges By Megan Rhyne

 

1. Prior to a city council meeting, Councilman A huddles with Councilman B, talking, nodding and gesturing. Councilman B then goes over to Councilman C, again talking earnestly. Councilman B, then goes to Councilman D, then Councilman E, then Councilman F, where similar conversations take place. The meeting starts, and when it comes time for a contentious issue to be discussed, the council surprises everyone by foregoing discussion and immediately voting on the matter.

 

2. Late in the evening, after the last item on the board of supervisors’ meeting agenda has been addressed, a weary public and press depart to digest what they’ve just witnessed. Unbeknownst to them, however, the board did not adjourn after that last item, and instead went into closed session, came out, and voted on an important legal settlement.

 

Both of the situations are legal under Virginia’s Freedom of Information Act. FOIA says that when three of more members of a public body get together to talk about public business, then that meeting must follow FOIA’s procedure for notice and for holding closed sessions. That means that two members can get together to talk without running afoul of the law.

 

In the first example, then, technically, there’s nothing wrong with council members meeting two by two. The problem, of course, is that at the end of the “daisy chain,” B has effectively found out what every other council member thinks or how he will vote, and has passed that information on to the next member he talks to, and so on. No wonder, then, there’s no discussion when the issue comes up in during the meeting: They’ve already discussed it outside the public’s presence.

 

Nor is there is anything illegal under FOIA about adding items to a meeting agenda, whether at the beginning, middle or end of the meeting. FOIA only says that if there is an agenda, it must be shared with the public. It doesn’t say whether items can be added or deleted from the so-called “final” agenda.

 

Nonetheless, in the second example, the board of supervisors is manipulating the law by waiting until the public is no longer watching to conduct further public business.

 

Unfortunately for the public, public bodies all too often figure out ways to play around the confines of FOIA’s open meetings procedures, toeing the line of the literal text, while simultaneously undermining the spirit of the law.

 

Sometimes they even go beyond  what’s legal, like when they have pre-meeting “work sessions” that they insist are open to the public because the doors to the meeting room are open.

 

But FOIA says that not only must a meeting be open to the public, but it also must be publicized at least three working days in advance. Minutes of the meeting must be taken. And a closed-door session must be preceded by a specific motion that identifies one of FOIA’s specific exemptions, like the discussion of personnel issues, or to get legal advice on a pending lawsuit.

 

Sometimes they limit when the public can comment at a meeting, for how long, and even about what. Sometimes they talk, call and e-mail each other so much prior to the meeting that there’s no need for discussion at the meeting. Sometimes they take a “recess” at the end of a meeting so that they can “recovene” that meeting whenever they want without having to post notice.

 

They can be creative. But what is the cost of such creativity?

 

When a public body pushes the envelope of what FOIA allows, the public not only gets cut out of the democratic process, but they inevitably begin distrusting their elected representatives.

 

Even if the letter of the law is being followed, the public begins to suspect that there is more to the story when they are shut out; that there is something to hide; that they are viewed as problems to be worked around, rather than constituents to be served.

 

It is no doubt more efficient to hold meetings without the public present, or without public comment or without contentious in-meeting debate, but democracy is not neat and tidy. It can be rough and tumble. Sometimes it’s downright ugly. That’s not something to hide from by skirting around the edges of FOIA.

 

It’s something to be embraced.