Letter: David C. Halgus, Ashburn

Editor: I read with considerable interest the legal explanation offered by County Attorney Leo Rogers in defense of his client, Supervisor Tony Buffington, claiming in good lawyerly tones that Supervisor Buffington’s numerous text messages sent to his board colleagues during their deliberations on the Harris Teeter application were non a violation of the Freedom of Information Act’s open meeting requirement because they were not “willful and intentional.”

County Attorney Rogers does a good job of getting his client off the hook. His efforts could easily earn him a job with the Hillary Clinton campaign; they could use a man with his skills.

But here is my question that you don’t need a lawyer to answer: Were Supervisor Buffington’s action s in the best interest of the “open and transparent” county government Chairwoman Phyllis Randall promised us back in January?

David C. Halgus, Ashburn

One thought on “Letter: David C. Halgus, Ashburn

  • 2016-07-26 at 2:56 pm

    David, it was not a valid opinion. In order for a violation to have occurred, we only need to show 3 things. First, a meeting occurred with 3+ members of a public body. Second, one member participated via telphonic, video, electronic or other means.

    1. Five members of the BOS met on July 15, 2016 physically in the same room. It doesn’t matter if they showed up at a NOVA Republican boosters meeting or a Land Use committee meeting. The fact that 3+ members of the BOS (and a quorum of the BOS at that) were in attendance means a meeting occurred.

    2. Supervisor Buffington used text messages to maintain a dialogue with members physically in attendance. Thus, Buffington participated in the meeting via “electronic or other communications means” per 2.2-3708.

    The controlling cases in this area are Beck v Shelton and Hill v Fairfax BOS. In Beck, the Virginia Supreme Court Opinion, the court wrote:

    “However, computers can be utilized to exchange [***7] text in the nature of a discussion, potentially involving multiple participants, in what are euphemistically called “chat rooms” or by “instant messaging.” In these forms, computer generated
    communication is virtually simultaneous.”.


    ‘”assemble” means “to bring together” and comes from the Latin simul, meaning “together, at the same time.” Webster’s Third New International Dictionary 131 (1993). The term inherently entails the quality of simultaneity. While such simultaneity may be present when e-mail technology is used in a “chat room” or as “instant messaging,” it is not present when e-mail is used as the functional equivalent of letter communication by ordinary mail, courier, or facsimile transmission’

    The court also noted ‘that the legislature “anticipated that some electronic communication may constitute a ‘meeting’ and some may not.” (citing Code §2.2-3710(B)). Thus, “the key difference between permitted use of electronic communication, such as e-mail, outside the notice and open meeting requirements of [the] FOIA, and those that constitute a ‘meeting’ under [the] FOIA, is the feature of simultaneity inherent in the term ‘assemblage.'”‘

    In Hill, the court wrote: “Moreover, the increased prevalence of “smartphones” and other mobile Internet-connected devices has increased both the ability to access all forms of electronic communication and the rapidity with which a response can be sent. Nonetheless, the inquiry to be
    made by the trier of fact remains the same as set forth in Beck, which is whether a series of electronic communications of whatever type constitutes a meeting of a public body for purposes of applying the FOIA.”

    Ultimately, they ruled the Fairfax BOS did not hold a meeting because ‘the e-mails sent by the Board members did not involve sufficient simultaneity to constitute a meeting,” that “the Board [member]’s e-mails that involved some sort of back-and-forth exchange were between only two members at a time, rather than the three required.”‘

    That is not the case here. There clearly was a meeting of the 5 BOS members. They included Buffington by allowing him to text information to two separate BOS members in the physical meeting. Buffington could watch the BOS meeting on the internet while he was texting back and forth. The court wouldn’t even need to consider if there was sufficient simultaneity to declare a “meeting” but an undisputed meeting of the 5 was occurring during the texting.

    This was a hastily decided absolution of a FOIA violation. Officials are just hesitant to reconsider because they are trying to save face. Even if they agree with this logic now, they will refuse to even consider it because they are not objective players. It’s pretty sad really. And it’s why whenever possibly, these issues must be decided in court, federal court if at all possible.

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