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.


15 thoughts on “Loudoun Supervisor Accused of Violating Open Meeting Law With Texting

  • 2016-07-19 at 7:48 am

    Cue SGP – go ahead and make this about you and how the SB, BOS, and the courts have picked on you

    • 2016-07-19 at 4:42 pm

      lol – right on cue, the very next comment submitted, timestamped just twenty minutes later

    • 2016-07-19 at 7:07 pm

      Btw, CareerSwitcher, you do know I am undefeated in federal court, right?

  • 2016-07-19 at 8:18 am

    Ahhh FOIA, the law that is rarely enforced. Here is what I know.

    Remote participation as described is not allowed. It is pretty evident that this was not done to shield the public from private conversations. This happened because Buffington was out of town, couldn’t participate telephonically, and wasn’t familiar with the rules. So even though it’s a FOIA violation, it wasn’t done knowingly or intentionally. Such is not the case with LCSB member actions though.

    It is illegal to vote outside of public meetings. One is allowed to get another member’s position informally (by phone, email, text) as long as that does not constitute the quorum of a public body (e.g. a committee). LCSB members Jeff Morse and Brenda Sheridan acknowledged under oath in a Loudoun general district courtroom that they held a discussion on a topic before the board outside of a public meeting. They both served on a 3-person committee making that a discussion between a quorum of its members. It clearly violated FOIA. But Loudoun general district judge Welsh inexplicably absolved them. It’s very convenient for her that there was no record as it was in general district court.

    It was also clear via circumstantial evidence that LCSB members routinely discuss topics outside of public meetings. You can even see them resume discussions as soon as their meetings adjourn on the LCSB videos. And LCSB committee members discuss their agendas amongst each other outside of meetings. If the committees had more than 3 members, this wouldn’t be a problem as it wouldn’t constitute a quorum. LCSB even asked the legislature to get rid of the 2-person quorum rule. But Judge Irby of Loudoun circuit court ruled that such a FOIA case couldn’t even be heard before the court. We all know LCSB members discuss the boundary decisions behind closed doors so that plans like the Leesburg modified Plan 8A rezoning can be dropped on the public at the last possible minute before a vote. This almost certainly violated FOIA but LCSB couldn’t care less because Loudoun judges will absolve them.

    You see, in Loudoun, if you are a public official, you really don’t need to follow FOIA. First, you get to pick your judge like LCSB chairman Eric Hornberger did in his conflict of interest case. Then, you just say, I am a public official and my accuser is bringing this case for bad intentions. Voila!! You get absolved in clear opposition to the evidence and your accuser gets sanctioned to deter anyone from bringing another case. Isn’t it great that Loudoun can claim title to the most corrupt county in all of Virginia?!

    • 2016-07-19 at 6:39 pm

      I agree, Loudoun is not know for adherence to FOIA. If we do not have a corrupt County government it is at best incompetent.

  • 2016-07-19 at 9:11 am

    This doesn’t seem like a highly charged political subject, but I guess Harris Teeter could be deemed by some…. I guess by texting both the far right and the far left members it should be sufficient, but he should have been contacting all members regardless, if it even met the FOIA requirements….. Nothing to see here as it will be a waste on money to persue, but they need to have a full day long class educating all members of all FOIA and other ethics requirements, prior to serving, and have them sign acceptance paperwork of their education, so when situations like this arise, they can be crucified! Too many things are being done off the record……

    • 2016-07-19 at 10:38 am

      That’s already the law but if there is never any enforcement, do you think members take it seriously? Do kids really study if there is no exam? (oops, you mean once LCSB cancelled midterms/finals, our kids never review the material on their own? Wow, who could have seen that coming)

      • 2016-07-19 at 6:28 pm

        Stay on topic, SGP. This article is not about final exams, which high schools replaced with end of quarter tests and projects. Once again you go off topic and state non-facts as if you were an expert in everything educational. Is there any doubt about your inability to judge teachers and the schools?

  • 2016-07-19 at 2:32 pm

    Much ado about nothing. They showed their text messages, and were informed of the law. Move on.

    It’s not as if they were hiding multiple secret and unsecured servers in their homes in order to specifically keep government business hidden from the public, and then lied about it, or anything…

  • 2016-07-19 at 4:29 pm

    Four supervisors and not even one of them recognized a violation of the transparency requirements. Was transparency requirements included in their orientation? Most likely yes—but whether they have gotten advice already someone should advise all of them on their legal obligation to conduct most public business BEFORE THE PUBLIC. No backroom meetings, no back channels. Before the public.

    • 2016-07-20 at 2:53 am

      Charlie, I think you mean five at least (Buffington, Meyers, Higgins, Randall, Umstattd) who received text messages.

      It’s funny how nobody on here consistently advocates for ethics. We have McKeon who pounces on the Republicans because as an extremely liberal activist, he sees political advantage. We have Manthos, who I often agree with philosophically, excusing this behavior in light of Hillary’s admittedly much worse behavior. And of course we have the ever present CareerSwitcher who fails to see how the lack of tests (no FOIA test or LCPS finals) leads to the lack of knowledge (on FOIA or educational content).

      Here is what I know.

      1. Hornberger, Rose, Turgeon and the rest of the LCSB violated free speech on their Facebook pages and FOIA meeting laws on the school board. They are now knee deep in federal court as the judge refused to dismiss any of the counts against them (that pretty much signals they will lose).

      2. Commonwealth Attorney Plowman was rebuked by the federal judge for violating free speech on his official Facebook page.

      3. Not to be outdone, the Loudoun BOS has also censored comments on their Facebook page Tuesday and face an imminent 42 USC 1983 civil rights suit (ironic that Randall will face a trial as the first African American chairperson). A state law matter will be thrown in so we don’t have to wait for Manchew and his legislative buddies to debate FOIA’s meaning next year.

      Everybody else on these boards is really just talk. You never take any action to hold officials accountable. I might get sanctioned by biased state judges, but the federal judges rule on the law and logic. I always know what the ruling should be. In federal court, you actually get a ruling based on the law not based on some local judge’s vendetta against ethical citizen activists.

      Sallie Cowen, where are the rest of the citizens who just want an ethical government? Are there really just a handful in Loudoun?

  • Pingback: County Says No FOIA Violation in Texts During Meeting – Loudoun Now

  • 2016-07-19 at 8:40 pm

    FOIA issues aside – you can clearly see here that Supervisor Buffington was actually doing the best he could to represent the will of the citizens he represents.

    Was there a legal concern on some level maybe, but more importantly there appears to be no intent to deceive anyone.

    His only crime here was doing the right thing for the folks who mostly likely correctly believe that this should not happen and they do not want it to.

    I say good for you Supervisor Buffington!!

  • Pingback: Supervisors to Consider ‘Buffington Rule’ on Texting – Loudoun Now

  • Pingback: Supervisors Turn Down Texting Rule – Loudoun Now

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