VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

August 23, 2006, Richmond

The Electronic Meetings Subcommittee conducted its second meeting on August 23, 2006.¹ Chairman Edwards began the meeting by identifying the issues on which there was consensus among the subcommittee. Namely, preservation of the requirement that a quorum of a public body using electronic meetings be physically present at one location, reducing the public notice from seven to three working days, authorizing local regional public bodies to conduct electronic meetings, and providing for participation by telephone by a member of a public body in the event of an emergency. The Chairman noted that the legislative draft prepared by staff reflected the above described consensus. He added that the issue raised by the State Independent Living Council (SILC) concerning relaxation of the electronic meeting rules for members of a public body with a physical disability was still on the table to be discussed by the subcommittee.

Staff advised the subcommittee that the legislative draft reflected not only the areas of consensus, but also included suggestions of the Virginia Press Association (VPA) and was marked as such in order for the subcommittee to have a basis for comparison and to facilitate consideration of the issues together. The subcommittee reviewed the draft and discussed each issue raised by the draft. The subcommittee invited public comment on each issue. The first issue concerned the definition of a regional public body. A representative of VPA told the subcommittee that VPA members were asked to identify the regional public bodies in their service areas and report how many localities typically comprised a regional public body. The poll revealed that typically regional bodies involved the participation of four or more localities. It was VPA's suggestion that the definition of regional public body in the draft be changed from three to four. VPA's suggested language also included a reference to the distance of 100 miles as another defining component of a regional public body. Public comment received on the issue of setting a distance requirement tended to indicate that perhaps distance was not the best measure. For example, in Northern Virginia, the issue is a travel issue, while in rural parts of Virginia it is a weather issue. Additionally, it was noted by Council member Wiley that 100 miles is too long a distance when one considers that Interstate 95 in Virginia is less than 200 miles long, although it can take a person all day to travel it. He opined that adding a distance requirement was artificial and served only to make electronic meetings for regional public bodies unusable. In response, it was suggested that the distance requirement be expressed in the alternative in the draft. Specifically, the definition of a regional public body would require either four or more counties and cities or be separated by a distance of 100 or more miles. There some discussion that in order for this definition to be meaningful, the number of regional public bodies in Virginia should identified and whether these entities in fact span 100 miles or more. In response, staff advised that there are literally hundreds of regional bodies as evidenced in a spread sheet provided by the Commission on Local Government. Mr. Wiley noted that regional jail authorities were required to have three jurisdictions, while some water and sewer authorities had less than three jurisdictions. The Chairman suggested that the definition of regional public body should not include towns within a county; but instead be limited to counties and cities. The subcommittee voted unanimously to adopt as part of the definition of a regional public body the requirement for four or more counties or cities, or alternatively participating localities must cover a distance of 100 miles or more. Specifically, "regional public body" means a unit of government organized as provided by law within defined boundaries, as determined by the General Assembly, whose members are appointed by the participating local governing bodies and (i) such unit includes four or more counties or cities or (ii) where the geographical territory within the jurisdiction of the regional public body is sufficient in size to include a straight line drawn between two points that is 100 miles or more in length.

The next issue presented in the draft concerned when notice must be given for electronic meetings. The subcommittee unanimously adopted reducing the notice requirement for electronic meetings from seven to three working days.

The subcommittee next discussed establishing a central call-in line by which the public could hear an electronic meeting. Council member Fifer noted that there was no prohibition in the law which would prevent the use of a central call-in line for public access. To change that to require such public accommodation would be a heavy burden on government. Mr. Wurtzel noted that there are three conference call services that arrange conference calls and that each participant pays for his access. The subcommittee felt that if a call-in line were provided, it should be at the government's expense and not that of the individual citizen.

The next issue considered by the subcommittee was language suggested by the VPA concerning the relaxation of the electronic meeting rules for members of a public body with a physical disability. It was noted that SILC had originally raised the issue with the FOIA Council by letter but had not provided any further guidance or suggestions to the subcommittee. The subcommittee agreed to the language offered by the VPA to address the issue, but conditioned its approval on hearing from SILC specifically and the approval by the Virginia Board for People with Disabilities.

On the final issue presented in the draft, the subcommittee discussed allowing individual members to participate in any meeting² by telephone in the event of an emergency or other unforeseen circumstance that prevented such a member from attending a meeting. The subcommittee explored what if any limitation should place on the number of emergencies that an individual member could invoke. The draft limited such emergency participation to two meetings per calendar year. VPA and the Virginia Coalition for Open Government indicated that emergency participation should limited to one meeting per year and suggested that the words "personal emergency or other unforeseen circumstances" in the draft was too open ended. After significant discussion on (i) the scope of any emergency participation, (ii) the process by which the affected member would notify his board or commission of the emergency, (iii) the approval of the body to allow such participation, and (iv) the limitation on the number of emergencies that would be allowed, the subcommittee voted to strike the words "personal" before the word "emergency" and "or other unforeseen circumstances" from the draft and to limit emergency participation by an individual member in each calendar year to two meetings or 25 percent of the meeting of the public body, whichever is less. There was brief discussion on whether the number of members of a public body that could avail themselves of this emergency provision should likewise be limited. The subcommittee found no compelling reason to impose this additional limitation.

Two additional issues were brought to the subcommittee's attention. Subcommittee member Wurtzel discussed his proposed draft that would allow state public bodies, including the State Council on Higher Education (SCHEV), to conduct electronic meetings without a quorum assembled in one physical location under specific conditions and for limited purposes. Chairman Edwards noted that there was consensus among the subcommittee expressed at this meeting and at its previous meeting that the requirement for a physical quorum to be located at the main meeting location should be preserved in the law. The draft offered by Mr. Wurtzel was not taken up by the subcommittee.

A representative of the Virginia Community College System (VCCS) provided a letter from Glenn DuBois, Chancellor, VCCS, which advised the subcommittee that it sought to regain the ability of VCCS to hold special electronic meetings solely for the purpose of community college presidential certifications. The letter indicated that this ability was lost in 2005 with the expiration of the electronic meeting pilot program authorized under Chapter 704 of the 1999 Acts of Assembly. The letter urged the subcommittee to consider relaxing the electronic meetings law for VCCS. Certain members of the subcommittee advised that they were sympathetic to the problem, but did not see the possibility of a compromise on the issue.

The subcommittee directed staff to prepare a revised draft reflecting the consensus of the subcommittee on the issues discussed. The revised draft will be made available on the FOIA Council Website.

The next meeting of the Electronic Meetings Subcommittee is scheduled for Wednesday, October 11, 2006 at 10:00 a.m. in the Speakers Conference Room of the General Assembly Building, Richmond.

¹ Subcommittee members Edwards, Miller, Spencer, Fifer, Wiley, and Wurtzel were present. Senator Houck and Mr. Bryan were absent.
² Traditional meetings where members are physically assembled in one location and meetings conducted by electronic communication means.