Herring Issues Guidance on Electronic Government Meetings During Emergency

As governing bodies grapple with how to practice social distancing and self-quarantining while at the same time observing transparency laws requiring them make meetings open to the public, Virginia Attorney General Mark Herring has issued guidance for when they can conduct meetings electronically.

While teleconferencing and video group chats have made it easy for people to hold a virtual meeting, elected bodies do not have that luxury. The Virginia Freedom of Information Act requires a quorum of members to be physically present in the room to conduct business, and to make the meeting open and accessible to the public.

In a state of emergency, those are among the government rules that can be relaxed. Herring’s advisory opinion tells local governments they can meet electronically if “the purpose of the meeting is to address the emergency,” which includes meeting “to make decisions that must be made immediately and where failure to do so could result in irrevocable public harm.”

[Read the full opinion here.]

Under Virginia law, town councils can hold meetings electronically if the catastrophic nature of the emergency makes it impracticable or unsafe to assemble a quorum in a single location; the purpose of a meeting is to address the state of emergency; and the public body gives public notice and makes arrangements for public access to meetings.

However, Herring wrote, the state of emergency does not mean all government transparency rules are relaxed.

“[T]he General Assembly did not intend to permit public bodies to handle all business through electronic communication means, even during a declared emergency,” he wrote, adding “public bodies should carefully consider whether taking a given action during a meeting held by electronic communication means is truly essential and should defer any and all decisions that can be deferred until it is once again possible to meet in person.”

If a public body is unable to meet for safety reasons, even related to COVID-19, and if they can delay the votes scheduled for during the pandemic until they can meet again, they must, under Herring’s guidance.

That means most meetings of elected bodies like the Board of Supervisors and Town Councils hold must still follow the usual rules. Different bodies in Loudoun have already begun adapting in different ways—such as the Board of Supervisors spreading its members around the room during meetings to keep them distant from one another, or only a required quorum of town council members attending a meeting while other members call in.

A press release from Herring’s office emphasizes “fundamental commitment to openness must be upheld and maintained even as we consider alternative methods to conduct the operation of the government.”


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