Despite state law that prevents elected bodies from conducting business as usual through electronic meetings, and although the General Assembly will not vote on legislation to change that until at least April 22, county supervisors defended continuing to conduct public hearings during the COVID-19 pandemic at their meeting Wednesday, April 15.
Although businesses have been disrupted or closed and people have been encouraged to stay home during the pandemic, and after passing an ordinance declaring that public hearings may be delayed, supervisors on Wednesday held a public hearing that included topics like adding a car wash to a 7-Eleven and rezoning 60 forested acres along Goose Creek to industrial use.
And while citizens are still permitted to speak in the boardroom in person, they have also been encouraged to participate electronically and the number of people in the county boardroom at one time has been limited. Chairwoman Phyllis J. Randall (D-At Large) said Wednesday “it is their right to be here, as long as they—and they are—following all the guidelines on social distancing and wearing a mask.”
That followed a Planning Commission meeting that week that marked the first public hearing over electronic means in Loudoun County history, and a meeting of the county finance committee Tuesday without a single elected official physically present.
Normally, open meetings laws require a quorum of members of a public body to be physically present to conduct business. State law allows elected bodies like the Board of Supervisors to meet electronically during a declared state of emergency if the emergency—such as the current COVID-19 pandemic—makes it unsafe to meet in person, and if the purpose of the meeting is “to address the emergency.”
But interpretations of that law by Attorney General Mark Herring and County Attorney Leo Rogers have expanded that narrow language to include many normal functions of government, even as the state Freedom of Information Act Advisory Council advised that is not allowed, and a week before the General Assembly will vote on an amendment to state law to allow it.
On March 19, state Sen. Richard H. Stuart (R-28), chair of the Virginia FOIA Advisory Council, wrote to Governor Ralph Northam asking him to take action, advising that state law currently “does not appear to allow for the conduct of other business necessary to ensure the continuity of government and essential government services, such as consideration of the annual budget for a locality.”
The Loudoun County Board of Supervisors passed its budget during a meeting conducted electronically on April 7.
“During emergencies that are short in duration, such as most weather-related events, this limitation has not posed a problem in the past,” Stuart wrote. “However, the novel coronavirus pandemic appears to present unprecedented difficulties in that its duration is unknown and physically-assembled gatherings, including public meetings that require a quorum to be present in a single location, present a heightened public health risk.” He asked Northam to take steps either through executive action or proposing amendments to state code.
Northam has since proposed such an amendment, which would allow those electronic meetings “to discuss or transact the business statutorily required or necessary to continue operations of the public body.”
That law, which the General Assembly won’t consider until April 22, more closely resembles what Loudoun’s supervisors, School Board and Planning Commission are already doing.
Two days after Stuart’s letter was sent, Attorney General Mark Herring published guidance on how to interpret public bodies’ emergency powers under state law. Herring interpreted the language “to address the emergency” to mean not just meetings that deal directly with the emergency, but also “decisions that must be made immediately and where failure to do so could result in irrevocable public harm.”
County Attorney Leo Rogers said he has interpreted state law and Herring’s guidance to mean ensuring “continuity of government.”
County Officials Forge Ahead
One of the public hearings held Wednesday included a hearing on the county’s emergency ordinance. While, as an emergency ordinance, that went into effect as soon as supervisors voted on it March 25, they are statutorily required to follow up with a public hearing and vote.
Before that vote Wednesday, supervisors defended the decision to conduct normal business over electronic means.
Randall said supervisors “are doing nothing different from what we normally do, except that we are doing more.”
The county has begun allowing members of the public to participate in meetings remotely by calling into meetings. Randall also said delaying land use applications and other votes would overwhelm county staff members, many of whom are working remotely or are on administrative leave, when normal business resumes.
“This is open, there is plenty of sunlight and openness in this process,” Randall said.
“It is my understanding that nothing in the governor’s emergency orders was in any way an amendment to the statutory deadlines that the General Assembly has imposed on us when it comes to land use, nor do I believe the governor’s executive orders in any way changed the requirements on local government to process applications,” said Supervisor Kristen C. Umstattd (D-Leesburg). She added: “I do not see a way that we can just delay voting on these issues that have come before us.”
The board has sent mixed messages on that topic.
Neither state law nor the governor’s emergency declarations mention relaxing deadlines on county officials, and Virginia localities only have those powers explicitly delegated by the state. But the county’s emergency ordinance, which supervisors were discussing at the time of those comments, holds that “any deadlines requiring action by a Public Entity, its officers (including Constitutional Officers) and employees of its organization shall be suspended during this emergency and disaster.” It also reads that “non-emergency public hearings and action items of Public Entities may be postponed to a date certain provided that public notice is given so that the public are aware of how and when to present their views.”
Supervisors on Wednesday evening held public hearings on revisions to county ordinances governing the Combined Fire and Rescue System; a proposal to abandon a section of road at a neighborhood cul-de-sac near Aldie; a request to expand the Loudoun Mutual office building in Waterford; a plan for a new, illuminated sign at the Hamilton Safety Center; a request to rezone 60 acres along Cochran Mill Road and Goose Creek to industrial uses; a request to add a car wash to a 7-Eleven in South Riding; and a proposal to build a service station, retail shopping and restaurants on Rt. 50 near the Fairfax County border. In the case of the revisions to fire and rescue ordinances, there is no outside applicant pushing supervisors to move forward—the county is applying to itself.
“I think we’re actually leading the way on this, and this is an example of what other counties should be trying to do if they’re not already doing it,” said Supervisor Tony R. Buffington (R-Blue Ridge).
Supervisors would go on to approve some of those applications that night, including the road abandonment and Loudoun Mutual’s application.
The Piedmont Environmental Council has continued to push back against the Board of Supervisors’s decision to keep conducting non-emergency business during the emergency. Field Representative Gem Bingol, who previously asked supervisors to delay public hearings and told them “every Loudoun citizen deserves an opportunity to participate in the public process, and even in extraordinary times, we shouldn’t ignore the obstacles to participation,” spoke to supervisors again Wednesday as they considered passing their “continuity of government” ordinance.
“Rezoning decisions cannot be undone by the governing body, and often have long-term impacts on the entire community, not just those who are directly affected,” Bingol said. “The government should account for the extenuating circumstances facing all members of the community.”
She also pointed out that the county government itself recently asked for—and was granted—an extension to deadlines in the State Corporation Commission’s deliberations on tolls on the Dulles Greenway, citing the difficulty of meeting those deadlines amid the disruptions of the COVID-19 pandemic. “Under the circumstances, land use decisions are largely not emergency considerations,” Bingol said.