VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

November 8, 2006, Richmond

The 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 meetings.

Lisa 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.

There 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.

As a 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:

1. A 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.

The 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.

The 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 by DLS.

It was 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.

As a 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.

The subcommittee 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.

¹ Mssrs. Edwards, Wiley, Bryan, Fifer, and Miller, and Ms. Spencer were present. Senator Houck was absent.
² Mr. Fifer voted no.