VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

June 8, 2005, Richmond

The Electronic Meetings Subcommittee¹ met on June 8, 2005 to discuss the appropriateness of expanding authorization for the conduct of electronic meetings to local regional authorities and other local public bodies. House Bill 2760 (Delegate Reese) was referred to the FOIA Council for study by the 2005 Session of the General Assembly. As introduced, HB 2760 would allow all local public bodies to conduct meetings under the Freedom of Information Act (FOIA) through electronic communication means (telephone or audio/visual). Under current law, only state public bodies may conduct meetings in this manner.

Subcommittee member Roger Wiley, representing the local government perspective, told the subcommittee that obtaining a quorum for local regional authorities is a problem due to the several jurisdictions served by a regional authority and the distance between the jurisdictions and the meeting site. He indicated that some regional authorities serve as many as 18 jurisdictions. Mr. Wiley noted that reimbursement for travel and expenses is a very real cost in addition to the inefficiencies of requiring county and city executives to spend one-half day just in travel to and from regional meetings. He pointed out that service on a regional authority is a very ancillary duty when compared with their principal responsibilities. He noted that the practical effect of restricting the use of available technology is forcing inefficiency on local government while at the same time complaining that local government should operate more like a business. Mr. Wiley also remarked that there is more public interest in some issues dealt with by regional authorities (i.e. transportation) than regional jail authorities. In addition, with traffic congestion in the metropolitan areas of the state, it is increasingly difficult to get good people to serve in the public sector. Mr. Wiley reported that the Virginia Municipal League and the Virginia Association of Counties had suggested the appointment of lower echelon personnel to regional authority boards as a way to eliminate the problem of obtaining a quorum on the theory that they would not be as busy as a city manager, for example. The experience however did not bear this out and the problem persists. Mr. Wiley indicated that it is a source of frustration when local officials appointed to the board of a regional authority are away on business or for personal reasons on the day of a board meeting. Allowing them to participate electronically would alleviate scheduling conflicts and improve attendance. As it stands now, such an official would have to miss the meeting. The subcommittee was asked to consider allowing a minority of a regional authority board to meet by electronic means, but to require the quorum of the board to be physically present at the meeting site.

The Virginia Coalition for Open Government (VCOG) indicated that its board of directors expressly opposed the expansion of the authorization for the conduct of electronic meetings to local governing bodies or local regional authorities. Because of the substantial rewrite of the electronic meetings statute in 2005, time was needed to gain experience and collect data under the new rules for electronic meetings. It was noted that as new communication technologies are developed, there is more opportunity for abuse of open meeting principles.

The Virginia Press Association (VPA) concurred with the remarks of VCOG although it stated that it was aware of the imposition on individual members of local public bodies. However, the membership of the VPA has expressed opposition to any further loosening of electronic meeting rules in light of the significant concessions made in the law in 2005. It was noted that with electronic meetings there is less interaction among the members of the public body and visual cues such as body language are lacking. Mr. Wiley protested that such notions further the premise that local government officials are the "bad guys" and state officials are not.

It was noted that expansion of the use of electronic meetings to local regional authorities was premature in light of the changes to the electronic meetings law in 2005. Electronic meetings were first authorized in 1984 and no significant amendment has been made until 2005. At that time, the rules for the conduct of these meetings were substantially relaxed. Any further expansion at this time was perceived as the camel's nose under the tent. Additionally, allowing local regional authorities to conduct electronic meetings would not solve the problem of establishing a quorum as the current law requires a quorum of a state public body to be physically assembled at the main meeting location.

A representative of Stafford County suggested that perhaps a pilot project involving a regional authority may be in order. The idea was to allow a designated regional authority to meet electronically and report its experiences with electronic meetings. In lieu of creating a pilot project, it was suggested that regional authorities consider rotating the meeting locations among the member jurisdictions. It was noted the most regional authorities meet between four and six times per year and that rotation of the meeting sites would spread the burden of travel among the participating jurisdictions.

Another, unrelated issue was raised concerning clarification of which public bodies may conduct electronic meetings. Currently § 2.2-3708 provides that "[I]t shall be a violation of this chapter for any political subdivision or any governing body, authority, board, bureau, commission, district or agency of local government or any committee thereof to conduct a meeting wherein the public business is discussed or transacted through telephonic, video, electronic or other communication means where the members are not physically assembled." (Emphasis added). It was noted that the general understanding of § 2.2-3708 is that state public bodies may conduct electronic meetings while units of local government may not. However, state authorities are political subdivisions as stated in their enabling legislation. The question is whether they are precluded from conducting electronic meetings.

The subcommittee, lacking a quorum, concluded its meeting by recognizing the need for scheduling an additional meeting for further discussions among all subcommittee members and interested parties. No date has been set for the next subcommittee meeting.

¹ Subcommittee members Edwards and Wiley were present; Mssrs. Fifer and Miller were absent.