Loudoun Supervisor Accused of Violating Open Meeting Law With Texting

In an apparent first for the Board of Supervisors—and an alleged violation of the Freedom of Information Act—Supervisor Tony R. Buffington (R-Blue Ridge) lobbied his fellow supervisors from afar by text message during a Transportation and Land Use Committee meeting Friday.

Buffington, who works for federal law enforcement and is in Cleveland for work, texted other supervisors during a meeting of the board’s Transportation and Land Use Committee to oppose an application by Harris Teeter Properties LLC to increase the commercial footprint of a development to include three drive-through restaurants and a gas station. Harris Teeter was asking the county to make the application for the three drive-through restaurants inactive, removing them from the board’s considerations. The development, called Kirkpatrick West Commercial Center, is planned near the intersection of Braddock Road and Northstar Boulevard.

One text, which was sent to three supervisors, reads:

“Good morning. Regarding KW. Ive told the applicant that Im against everything they are currently proposing as it would turn the area into a destination center rather than an area to serve the local community. The vast majority of surrounding residents are adamantly opposed to the proposals and don’t want any of it with the exception of what has already been approved (regular sized Harris Teeter). Additionally, the road network already congested and not prepared for the area to become a destination center that will draw in outside traffic that otherwise wouldnt go there.”

He also encouraged committee members to vote the application down, rather than move it forward with the drive-through restaurants removed.

“That leaves it hanging over head of the residents,” he texted Supervisor Ron A. Meyer Jr. “That is a loss.”

He also texted supervisors pictures of the Cleveland waterfront.

Screenshots of texts between Supervisor Tony R. Buffington (R-Blue Ridge) and Supervisor Ron A. Meyer Jr. (R-Broad Run), provided by Meyer.
Screenshots of texts between Supervisor Tony R. Buffington (R-Blue Ridge) and Supervisor Ron A. Meyer Jr. (R-Broad Run) during the July 15 meeting of the county Transportation and Land Use Committee, provided by Meyer.

Buffington apparently texted Meyer, county Chairwoman Phyllis J. Randall (D-At Large), Supervisor Geary M. Higgins (R-Catoctin) and Supervisor Kristen C. Umstattd (D-Leesburg) during the meeting. He apparently did not text committee Chairwoman Suzanne M. Volpe (R-Algonkian), having spoken to her before the meeting. Buffington does not serve on the Transportation and Land Use Committee, but represents the area around the proposed Harris Teeter.

Walsh Colucci Lubeley & Walsh PC managing shareholder J. Randall Minchew, who represents Harris Teeter in the application, noticed the flurry of texting during the meeting and asked Volpe about it. Minchew represents Virginia’s 10th District as a Republican in the House of Delegates, but was serving in his capacity as an attorney, not as a delegate.

“I know that many members of the committee have their cell phones out, and my question is, under the Freedom of Information Act, is Supervisor Buffington participating in this meeting by text message?” Minchew asked.

Scanned images of texts between Supervisor Tony R. Buffington (R-Blue Ridge) and Supervisor Geary M. Higgins (R-Catoctin) during the July 15 meeting of the county Transportation and Land Use Committee, provided by Higgins' office.
Scanned images of texts between Supervisor Tony R. Buffington (R-Blue Ridge) and Supervisor Geary M. Higgins (R-Catoctin) during the July 15 meeting of the county Transportation and Land Use Committee, provided by Higgins’ office.

Under the advice of Deputy County Attorney Ron Brown, each board member read the text conversations they had with Buffington during the meeting into the record.

“I think that either someone doing a transcript of what has been read into the record from each of those records, or via screencaps, or whatever the techies know how to do, a printed record of all of those emails needs to be placed in the record for the benefit of the applicant and the public,” Brown said. He also confirmed that “no supervisors should be participating in any way by text or otherwise in this meeting.”

Volpe said she has dealt with texting during a public meeting once before, but only in the case of a constituent texting a supervisor, never a supervisor texting other supervisors.

Randall, Higgins, and Meyer expressed immediate regret at the meeting and thanked Minchew for calling it to their attention.

“I voted my way that I would have voted anyway, but I think that’s a good point, and I had not actually thought of that,” Randall said.

“I apologize, I was not fully aware of the legal situation regarding remote participation,” Meyer said. “Thank you for clarifying that.”

Speaking from the Republican National Convention Monday evening, Meyer said he didn’t think the misstep was intentional.

“I think the issue of the text messages is mostly from a perspective of ignorance, because you have a lot of new board members,” Meyer said. “It was not intentional, and as soon as we figured it out, we all sort of fessed up.”

Five of the nine county supervisors are first-term supervisors, including Buffington, Meyer, and Randall.

Other supervisors have not yet responded to a request for comment and screenshots.

The Virginia Freedom of Information Act provides for remote electronic participation in public meetings; however, it requires that a quorum of the body’s members be physically present and that the remote participant’s voice be heard by everyone in attendance of the meeting.

As Minchew pointed out, nobody but the text messages’ recipients could know what was said in them.

“Respectfully, there’s been a blatant violation of the Freedom of Information Act this afternoon,” Minchew said at the meeting. “I would suggest the board convene with its legal counsel and get a briefing of what the law provides.”

Since the meeting, Minchew has been trying to find relevant legal opinions, but has so far found Loudoun may be breaking new ground in Virginia, and said the incident could result in new laws from the General Assembly or opinions from Virginia’s FOIA Council interpreting the law.

“What we find in freedom of information law is that technology always gets ahead of the law,” Minchew said. “I’d say that about Uber, I’d say that about Airbnb, I would say that about FOIA law back when emails came into existence.”

Virginia law provides for a first-office fine of between $500 and $2,000 for a person who “willfully and knowingly” violates the Freedom of Information act. Minchew said he does not believe that Buffington, a law enforcement officer, was willfully attempting to circumvent the law.

“He’s not that kind of guy,” Minchew said. “I think the cell phone is so ubiquitous that some people use text messages as a regular form of communication these days. They don’t think about the fact that the public is not going to be able to see that.”

The office of County Attorney Leo Rogers has not yet responded to a request for comment. But in a different committee meeting Monday evening, Brown said the county attorney’s office is “not at a point or juncture where it is appropriate to comment on this.”

The County Attorney and the FOIA Council have said no law was broken. Read the rest of the story here.