FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
November 8, 2006, Richmond
Electronic Meetings Subcommittee1 held its fourth meeting on
Wednesday, November 8, 2006 to complete its work on its draft
legislative proposal. Still at issue for the subcommittee
was how to define a regional public body so as to allow such
bodies to conduct electronic communication meetings under
§ 2.2-3708, and to receive comment from State Independent
Living Council (SILC) on its request to exempt members of
SILC from certain requirements for electronic communication
Grubb, Executive Director of SILC, advised the subcommittee
that there are 17 members of SILC and that it meets four times
per year. According to § 51.5-25.1, SILC was created
to jointly plan with the Department of Rehabilitative Services
activities carried out under Title VII of the federal Rehabilitation
Act of 1973 (29 U.S.C. § 796 et seq.) and to provide
advice to the Department regarding such activities. The membership
of SILC and its duties are set according to federal provisions.
Ms. Grubb indicated that SILC had an additional request for
an exemption from the requirement that if a public body conducts
electronic meetings, it must also conduct one meeting annually
where all members are physically located at one location.
She stated that sometimes medical complications arise with
persons with disabilities that may prevent them from attending
the required physically assembled meeting. When asked generally
how many members could claim the exemption and not come to
a meeting, she indicated that about 25 percent of the membership.
In response to a question about whether attendant care was
the issue behind SILC's request for an exemption, she indicated
that attendant care is not an issue if properly budgeted and
that transportation, medical complications and attendant care
were all issues facing persons with disabilities. The reason
behind the request was to accommodate persons with disabilities
who cannot attend for the above stated reasons but need to
participate because of their membership on SILC.
was discussion among the subcommittee whether the exemption
as written was (i) sufficient to address the issues raised
and (ii) properly identified the class of persons with disabilities.
There was a suggestion that the exemption be limited to SILC.
This suggestion was later dismissed in light of the importance
of accomodating members of a public body with a disability
to enable their participation in government. However, it was
felt that the the number of meetings that such members could
participate in through electronic means that are not open
to the public should be limited. The subcommittee used former
Lieutenant Governor John Hager as an example. Governor Hager
was very active in government, but if he had a related medical
condition, even he could be incapacitated and prevented from
attending meetings on a short term or even a protracted basis.
It was noted that to prevent abuse of this exemption, the
public body bear the burden of monitoring attendance by its
members. There was a suggestion that the exemption should
be coupled with additional annual reporting requirements to
the FOIA Council. Staff pointed out that such a requirement
would be a burden without any real benefit and concurred that
the public body should be responsible for monitoring participation
by its members and that the appointing authority was in the
best position to address abuse of the meeting exemption.
result of extensive deliberations, the subcommittee agreed
that the draft should be revised to reflect the following
points of consensus. First and foremore, the subcommittee's
unanimous belief that we should strive to encourage persons
with disabilities to serve on public boards and commissions,
and that impediments to such public service should be reduced
if not removed. The exemption for participation by members
of a public body by electronic means should address two distinction
instances, emergency situations (e.g. a flat tire or traffic
congestion) that prevent a member from being physically present
at a meeting on the day of the meeting and members that have
a temporary or permanent condition (e.g. member with a disability)
that prevents such member's physical attendance at the meeting(s).
The rules of participation currently expressed in the draft
would apply in both instances, specifically:
quorum of the public body is physically assembled at the primary
or central meeting location;
2. The public body makes arrangements for the voice of the
remote participant to be heard by all persons at the primary
or central meeting location;
3. The public body holding the meeting approves such member's
participation by a majority vote; and
4. The public body records in its minutes the nature of the
(i) specific emergency or (ii) temporary or permanent condition
that prevents attendance, and the remote location from which
the member participated.
subcommittee agreed that participation by a member under the
emergency scenario should be limited each calendar year to
two meetings or 25 percent of the meetings of the public body,
whichever is less. However, no such limitation would apply
in cases of temporary or permanent condition.
subcommittee next discussed the issue of allowing regional
public bodies to conduct meetings by electronic means. The
remaining issue was how to define a regional public body.
Kent Stigall of the Division of Legislative Services (DLS)
provided the subcommittee and the public with copies of GIS
maps that showed which localities would be included if the
definition required localities to be separated by100 miles.
Likewise the maps also showed affected localities separated
by 75 and 50 miles, respectively. It became clear to the subcommittee
that the current definition requiring separation of 100 miles
was not meaningful because only very few regional bodies could
meet it. It was suggested that the distance be based on a
specific radius from the meeting location. The subcommittee
inquired whether there were regular meeting places among regional
public bodies or whether the meeting locations rotated among
the participating jurisdictions. Mr. Wiley indicated that
the vast majority of regional public bodies have a regular
meeting place. The subcommittee considered various distances
and viewed the impact of each distance on the maps provided
clear to the subcommittee that a definition based primarily
on the distance between the participating localities was not
workable. Mr. Edwards suggested taking another approach. Instead
of working to define a regional public body in terms of minimum
number of jurisdictions and distance, the subcommittee should
consider carving out an exemption to allow individual members
of regional public bodies who reside 50 or more miles from
the regular meeting location to participate by electronic
means. In this way, there was internal consistency in the
electronic meetings law by providing limited exemptions for
individual members of state and regional public bodies. The
subcommittee heartily agreed that the approach was a good
one and should be pursued further. The subcommittee declined
to distinguish between driving miles and linear miles as that
task would be nearly impossible.
result, the subcommittee voted 5 to 12 to revise the draft
to authorize individual members of regional public bodies
consisting of two or more counties or cities to participate
in meetings by electronic communication means where such member
lived more than 60 miles from the regular meeting location.
directed staff to revise the draft to reflect its deliberations
on both on both of the remaining issues. The subcommittee
will meet in the morning on December 15, 2006 before the full
FOIA Council meeting to review the revised draft.
Mssrs. Edwards, Wiley, Bryan, Fifer, and Miller, and Ms. Spencer
were present. Senator Houck was absent.
Mr. Fifer voted no.