Editorial: A Transparent Fallacy

The Board of Supervisors last week faced an important test in its members’ efforts to champion increased transparency and accountability in our local government.

It failed.

On the table was a motion to add one sentence to its 16-page Rules of Order: “Board Members will refrain from 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.”

It was a fairly straight forward way to address concerns that emerged after a recent meeting when supervisors acknowledged they regularly use their cell phones and other electronic devices to communicate with colleagues during meetings.

This method of talking behind the backs of fellow supervisors and members of the public who are watching the proceedings doesn’t run afoul of Virginia’s open meeting laws. It does, however, make the actions of government more secretive and less open to scrutiny.

Supervisors in the majority arrived at the conclusion that an across-the-table texting restriction was unnecessary because it is likely that their communications would be viewed as “public documents” under the state’s Freedom of Information Act. That means anyone can ask to read what was said electronically between supervisors.

So, the theory goes, there’s no harm because the information can be obtained by anyone who wants to see it. That position erodes rapidly when put to practical application.

For example, following last week’s vote rejecting the texting restrictions, Loudoun Now submitted a request to review the electronic communications—texts and direct messages, with email excluded—that just one of the nine supervisors sent to or receive from his colleagues concerning public business so far this year. Under the state’s Freedom of Information Act and the board’s own policies, charges can be levied to cover the cost of assembling any material that may have been preserved. In this case, the newspaper was told it would require $400 to $500 and several days of staff work to provide the requested records.

In the end, the supervisor offered to provide the information at no charge, but the point—we hope—was made. The assertion that the information is freely available is a fallacy.

The reality is that supervisors have carved out wide latitude to debate issues outside the public’s eye.

Sure, a member of the public could stand by, checkbook in hand, after every public meeting and request copies of any text messages or emails members may have sent to one another during the session, but does that sound like the open government you expected when you cast your ballot? We bet not.

2 thoughts on “Editorial: A Transparent Fallacy

  • 2016-09-15 at 5:26 pm

    A legal loophole that the GA needs to address. Does it make any sense to say 3 physically gathered supervisors are subject to FOIA but their texting back and forth amongst each other is not?

    In the meantime, it would be a nice show of respect to constituents if each Supervisor turned their phone off during public meetings and placed it on the desk in from of him/her.

  • 2016-09-16 at 11:18 am

    Agree with the sentiment. However, I’m not sure why folks say the text messages are legal. Statute 2.2-3707(H) says persons must be allowed to film/record any portion of an open meeting. Electronic communications between members are part of that meeting.

    Thus, any citizen can merely ask the Loudoun BOS “I want to record all of Ron Meyer’s texts during this meeting” and they would be forced to give the citizen that access. In fact, why doesn’t one of the Democrat activists ask to do just that and see what they say.

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