Supervisors to Consider ‘Buffington Rule’ on Texting

The Loudoun County Board of Supervisors will discuss a prohibition on electronic communications at its first meeting after the August break on Tuesday.

The proposed change to the board’s rules of order would prohibit board membersfrom communicating electronically (email, text message or similar means) with other Board Members during Board business meetings, Public Hearings, committee meetings, or other meetings of the Board, about topics that are on that meeting’s agenda.”

Supervisor Tony Buffington (R-Blue Ridge) inadvertently ignited a controversy by texting to members of the board’s Transportation and Land Use Committee at a meeting July 22. Del. J. Randall Minchew (R-10), who was acting as an attorney representing Harris Teeter in an application, said that was “a blatant violation of the Freedom of Information Act.” County Attorney Leo Rogers said there was no violation of the FOIA disclosure rules, and the Virginia Freedom of Information Act Council said the case was new ground for FOIA law in the state.

“I don’t think that I’ve seen a court ruling on it anywhere,” said Virginia FOIA Council attorney Alan Gernhardt at the time. “On a practical level, this one’s just kind of weird, because they were actually having a meeting, there was notice, and they did include it in the minutes. I guess the question really becomes: Did one member improperly participate? And I don’t really know the answer to that.”

FOIA Council Executive Director Maria Everett agreed with Rogers that there was no FOIA violation, but did add that the texts are in the public record.

[Read about the meeting here and the Virginia FOIA Council’s opinion here.]

Buffington said in a statement at the time that government transparency is very important to him.

“If my exchange of text messages with individual members of the Board of Supervisors during last week’s Transportation and Land Use Committee meeting created a perception of wrongdoing to even one member of the public, then I am absolutely regretful,” Buffington wrote. “As is apparent from my text messages, my priority remains to effectively represent the people of the Blue Ridge District and Loudoun County.”

One thought on “Supervisors to Consider ‘Buffington Rule’ on Texting

  • 2016-09-05 at 8:30 pm

    There are much bigger questions than just this single instance. I spoke to the FOIA council after this incident and they compared these text messages to other in-meeting discussions. For example, can a member step aside and hold a phone call out of earshot of the other members/public? Can a member receive text messages from lobbyists during the meeting (even while sitting on the dais)? The FOIA council pointed out that these are regular occurrences at many public meetings.

    I believe all of these actions are prohibited by the FOIA laws. For example, members of the public are allowed to record ANY public meeting subject to FOIA. That means if two members on the dais are having a sidebar, it should be on the record. If a newspaper or member of the public wants to record that conversation, they should be allowed to place a microphone such that it can pick it up, including directly between two officials in the meeting.

    If an official receives a question during a meeting from the public lecturn, it is recorded. If a lobbyist sends that same official a text during the meeting and it relates to the meeting, it should be part of the meeting. Currently, officials don’t read those texts into the record. But the FOIA law is very clear. The only times that the Virginia Supreme Court has given such agencies a pass is when the communications were outside of all meetings (emails) and when they were deemed to not be close enough to constitute a meeting. Emails/texts during an ongoing meeting clearly would not be exempt. Officials better be very careful. ALL of these communications are public records and can be FOIA’d. Just ask Hillary Clinton.

    Ultimately, this is a case of ethics. Some officials try to hide their communications whenever possible. Some bodies enter into closed meetings to hide topics that might cause public disapproval. Why are our officials trying to hide their communications unless it is unethical?

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