Sunrise over V.A. Capitol.

July 13, 2005, Richmond

The Electronic Meetings Subcommittee1 held its second meeting on July 13, 2005. Chairman Edwards indicated that because the subcommittee lacked a quorum at its first meeting, it was appropriate to reconsider the issues raised by HB 2760 (Reese), which would expand authority for the conduct of electronic meetings under § 2.2-3708 to local governing bodies and other local public bodies. A representative of the Virginia Association of Counties (VACo) stated that VACo had discussed this issue and indicated that while it would be beneficial to have the option to conduct electronic meetings, especially in high traffic or rural areas because of the specific challenges, there was no strong push to get it because it is generally understood that face-to-face meetings are still the appropriate method. The Virginia Press Association and the Virginia Coalition for Open Government indicated that it was their uniform view that local government is particularly suited to the face-to-face meeting model and therefore would not favor such an expansion.

Mr. Fifer offered that in-person meetings make for better government. With regard to localities, there may be certain limited circumstances where electronic meeting could be permissible due to great travel distances or if an emergency existed. He noted that with regard to FOIA, the matter of convenience belonged to the public and not the government.

The subcommittee voted not to recommend HB 2760 as it related to local governing bodies and school boards in light of the significant relaxation of the procedural requirements made by the 2005 Session of the General Assembly. The subcommittee then focused its discussion on a peripheral issue raised by HB 2760, namely that of application of § 2.2-3708 to local regional public bodies. The subcommittee had previously been requested by the Potomac and Rappahannock Transportation Commission to authorize them to conduct a pilot project whereby the Commission could meet electronically and report its experiences.

As part of its deliberations, the subcommittee discussed the legislative history of § 2.2-3708 and noted that when the law was initially enacted in 1984, it prohibited any public body from conducting electronic meetings. The next significant amendment to this section came in 1992 when state public bodies were granted the permanent authority to conduct electronic meetings. In 1996, § 2.2-3708 was amended to require that a quorum of a state public body be assembled at one central location as a prerequisite for conducting electronic meetings. Finally, in 2005, this section was amended to significantly relax the procedural requirements for conducting electronic meetings by state public bodies. A complete legislative history of § 2.2-3708 is attached as Appendix A.

A representative of the Piedmont Workforce Network (the Network) advised the subcommittee that the Network, required under the federal Workforce Investment Act, was comprised of a board of over 50 members, representing 11 jurisdictions. He advised that for some members, it is a two-hour commute one-way. He reported that due to the large number of members, the Network has trouble with attendance generally and also has trouble achieving a quorum for the conduct of its business. He noted that the ability to conduct electronic meetings would assist in the work of the Network.

Returning to the request of the Potomac and Rappahannock Transportation Commission for a pilot project, it was noted that the Commission is comprised of public officials representing several jurisdictions which required at least 90 minutes of travel one-way (with no traffic) to meetings in Manassas. The long commute to meetings also adversely impacts citizens wishing to attend. The representative of the Commission renewed the request for a pilot project by the Commission under specified conditions as deemed appropriate by the Council and the General Assembly to increase Commission member participation and that of the interested citizens. In response, the Virginia Press Association (VPA) and the Virginia Coalition for Open Government (VCOG) stated that, although they had not considered a pilot project specifically, a compelling need had not been demonstrated to further expand authorization for the conduct of electronic meetings. Noting further that because of the extensive rewrite of the electronic meetings law in 2005, the VPA and VCOG were opposed to further relaxation of the electronic meeting rules.

Mr. Fifer noted that he drove 100 miles one-way to attend the subcommittee meeting, but acknowledged that that is part of public service and for which he is entitled to be reimbursed for his expenses. He pointed out that the subcommittee needed to be mindful of the chilling effect on recruitment of citizens willing to participate in government. He asked the subcommittee to consider whether the time spent in travel to a meeting could be better utilized in service of the public. He stated, however, that face-to-face meetings are very important to the democratic process. Further, when in conflict, FOIA puts the burden on government and not the public. Mr. Fifer indicated he, personally, would like to see a pilot project or the availability of some form of remote monitoring of meetings to give the public greater access to meetings, including better utilization of existing community college facilities.

Chairman Edwards stated that interest in the issue of electronic meetings by local and regional public bodies would continue and at some future date, the Council would have to revisit the issue. He suggested, however, that for the present, the better course is to live with the 2005 changes to the law and see how it works.

The executive director of the Joint Commission on Technology and Science (JCOTS) advised that JCOTS would work with the Council by monitoring where the technology is available for the conduct of electronic meetings. Currently, VDOT and the community colleges have made specific times each month available for legislative bodies to conduct electronic meetings.

In response to a question regarding the frequency of use of electronic meetings by state public bodies, Council staff indicated that it is unclear whether such meetings are being used but are not being reported as required by law, or if state public bodies are not conducting electronic meetings.

The VACO representative advised the subcommittee that with shrinking budgets, VACO is encouraging regional cooperation. Authority for conducting electronic meetings would enhance regional cooperation and allow the affected citizen to more easily monitor the work of regional groups.

Based on its discussion and the public comment received, the subcommittee voted unanimously to recommend to the Council at its next meeting that expanding the authority for the conduct of electronic meetings to regional public bodies was premature at this time in light of the significant relaxation of the procedural rules for electronic meetings made in 2005. Further, the subcommittee would recommend that the issue should be revisited next year after some experience with the new rules as it was not insensitive to the needs of regional governments.



Legislative History of § 2.2-3708
Electronic Communications Meetings
under FOIA

of Assembly
Effect of Amendment
c. 252
Electronic communication meetings prohibited (§ 2.1-343.1) Enacted as result of Roanoke City School Board v. Times-World Corp., 226 VA 185, September 9, 1983.
c. 538
State public bodies authorized to conduct two-year pilot program (expiring July 1, 1991) for electronic communication meetings in accordance with statutorily mandated procedures; such meetings for political subdivisions and local public bodies prohibited.
(§ 2.1-343.1)
c. 473
Two-year pilot program expanded to three-year program, expiring July 1, 1992.(§ 2.1-343.1) -
c. 153
Authorization for state public bodies to conduct electronic communication meetings made permanent (i.e., three-year sunset repealed). (§ 2.1-343.1) -
c. 270
Clarification of application of law (i.e., what public bodies may conduct electronic communication meetings.
(§ 2.1-343.1)
c. 278
Language "Nothing in this section shall be construed to prohibit the use of interactive audio or video means to expand public participation" added.
(§ 2.1-343.1)
c. 289
Requirement for quorum physically assembled at one location added.
(§ 2.1-343.1)
c. 703/726
Technical changes as result of 1999 rewrite of FOIA. (§ 2.1-343.1)
Recommendation of the HJR 187/501 Joint Subcommittee Studying FOIA
c. 844
Technical changes as result of Title 2.1 revision into Title 2.2. (§ 2.2-3708) No substantive changes made; renumbering of existing Code sections in Title 2.2
c. 981/102
Technical changes as result of creation of the Virginia Information Technologies Agency (VITA). (§ 2.2-3708) -
c. 352
Substantive rewrite of § 2.2-3708 to relax procedural requirements Recommendation of FOIA Council and JCOTS

1 Subcommittee members Edwards, Fifer and Miller were present at the meeting. Subcommittee member Wiley was absent.