VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

August 9, 2006, Richmond

The Electronic Meetings Subcommittee held its first meeting on August 9, 2006. All members of the Subcommittee were present.¹ John Edwards, chair of the Subcommittee identified the following issues that would be considered by the Subcommittee, namely:

1. Authorizing regional public bodies to conduct electronic meetings;
2. Clarifying which, if any, political subdivisions should be authorized to conduct electronic meetings; and
3. Relaxation of the physical quorum requirement.

Senator Houck suggested that the Subcommittee also examine whether a member of a public body who, at the last minute before a meeting, is unable to attend due to personal or other emergency circumstance should be allowed to participate in the meeting. Currently, the member can only monitor the meeting and not participate, and would be counted as not having attended the meeting.

On the issue of the physical quorum requirement, arguments were made that to attract high quality people into public service, the quorum requirements for electronic meetings should be relaxed to only three members of the public body. In this way, members' busy schedules and travel could be lessened through the use of available technology. It was pointed out that travel time in Virginia's population centers is increasing and the cost of traveling is likewise increasing at the public's expense. The law needs to adapt to technology and not deny its existence.

Frosty Landon of the Virginia Coalition for Open Government reminded the subcommittee that the history of electronic meetings law dated back to the 1980's where after the Roanoke School Board case, electronic meetings were prohibited in FOIA. Since that time, we have been wrestling to strike the correct balance. Mr. Landon stated that over time the rules have been relaxed and the use of technology has been encouraged to enhance public access. He suggested that what was never addressed is the definition of a quorum and perhaps there could relief in that area. Roger Wiley pointed out that the law usually specifies the requirements for a quorum and noted that it is not a solution to the problem to say that it takes fewer people to conduct business. Mr. Wiley opined that there is no sound justification for the physical quorum requirement and no logical distinction between state and regional public bodies as far as electronic meetings were concerned. Mr. Wiley stated that the physical quorum requirement for local public bodies was fine as the members all live within the same jurisdiction.

There was consensus among the subcommittee that face-to-face meetings are preferred because members get to know one another, there is better, focused participation by the members, the benefit of visual cues, and the impact of public in attendance on the proceedings. The dynamics of a meeting do change in the electronic meeting setting. The subcommittee agreed that the public's right to know about the operation of government is paramount and should not be minimized to make it convenient for members of a public body. Accepting a position as a member of a public body comes with responsibilities. It was suggested that a narrowly defined situation, such as an emergency, which prevents a member from attending a meeting on the scheduled date, may be workable.

Mr. Wiley stated that generally when a quorum is not met, the meeting is not usually rescheduled; instead the meeting is skipped. Clearly, this is not good for the conduct of the public business. Mr. Wiley stated that with many of the regional public bodies, there is no public in attendance. He noted, however, that relaxation of the electronic meeting rules on that basis was a slippery slope and did not favor it.

Mr. Fifer indicated that while he is very sympathetic to the travel issues, the burden is and should be on the government. He opined that the argument of attracting quality members justifying relaxation of electronic meeting rules was not a compelling one.

The Subcommittee reaffirmed its previous agreement that a physical quorum should be maintained in the law. There was consensus of the Subcommittee, however, on the following issues:

• Changing the notice of electronic meetings from seven to three working days;
• Authorizing regional public bodies to hold electronic meetings (although how to define such bodies is still under discussion); and
• Allowing members to participate telephonically in a meeting in the event of a last minute emergency that prevents such member from attending the meeting, provided that a quorum is physically assembled at the main meeting location. Such member's eligibility to participate in this way would be limited to a specified number of meetings per calendar year.

The Subcommittee directed staff to prepare a draft for its review that incorporates the points of consensus. The draft will be posted to the FOIA Council website. The next meeting of the Subcommittee is set for Wednesday, August 23, 2006, immediately upon the adjournment of the FOIA Council meeting.

¹ John Edwards, Chair, Senator Houck, Roger Wiley, Stewart Bryan, E.M. Miller, Craig Fifer, Mary Yancey Spencer, and Alan Wurtzel.