The General Assembly on April 22 agreed to an amendment to open meetings law allowing elected bodies like Loudoun’s Board of Supervisors to meet electronically “to discuss or transact the business statutorily required or necessary to continue operations of the public body” during declared emergencies like the COVID-19 pandemic.
That will match what Loudoun supervisors have been doing already despite the previous state law.
Previously, open meetings laws allowed supervisors to meet electronically during a declared state of emergency only if the emergency, makes it unsafe to meet in person, and only if the purpose of the meeting is “to address the emergency.”
But since the declaration of emergency, Loudoun’s board has held meetings and even public hearings on topics like ceremonial resolutions, gas station car washes, and road signs.
Supervisors have unanimously defended continuing to conduct routine business and public hearings. Attorney General Mark Herrings had interpreted the state law to also allow “decisions that must be made immediately and where failure to do so could result in irrevocable public harm.” Loudoun County Attorney Leo Rogers then built on that interpretation, reading the state law to allow electronic meetings to include “continuity of government” generally.
Both Herring and the Virginia Freedom of Information Act Advisory Council had advised agenda items should be considered on a case-by-case basis to determine whether they meet the standards for an electronic meeting. State Sen. Richard H. Stuart (R-28), chairman of the Virginia FOIA Advisory Council, wrote to Gov. Ralph Northam asking him to take action, advising that state law at the time did not seem “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.”
That letter went out March 19; the Board of Supervisors adopted its budget during a meeting conducted electronically on April 7.
Ultimately, setting the agenda for county board meetings falls to County Chairwoman Phyllis J. Randall (D-At Large). She asserted on an April 22 county Facebook live stream, before the General Assembly’s vote, that the board has “met and exceeded all of the [Freedom of Information Act] guidelines,” the night after leading an electronic meeting in which supervisors heard the Planning Commission’s routine annual report, an discussed and voted on four ceremonial resolutions, committee nominations, an application to redevelop a movie theater property for housing, putting up signs to slow traffic in two neighborhoods, a review of environmental initiatives, and other routine matters.
Other elected officials have been more circumspect about open meetings law.
Although the School Board has also continued to meet electronically, School Board member Beth Barts on Tuesday expressed some trepidation about beginning committee meetings again.
“As much as I want to meet—I have a lot that I know we want to do with our committees—at the same time I am waiting and looking to see what the guidance is from the governor as far as any amendment he proposes, whether that allows us to move forward with regular business, or it must … continue to have a relationship with this emergency situation,” Barts said.
The Board of Supervisors’ two standing committees have also continued to meet electronically.
Under the new law, public bodies are allowed to meet electronically if the declared emergency makes it unsafe to gather in one place, such as in the case of the COVID-19 pandemic. A transcript or recording of the meeting must be placed on the public body’s website, available in Loudoun at https://www.loudoun.gov/2203/Meeting-Videos. The public body must arrange for public access to the meeting through electronic means and, “if the means of communication allows,” public comment.
Loudoun has already begun accepting public comment electronically at its Board of Supervisors Meetings; sign up to speak at https://www.loudoun.gov/4853/About-Board-of-Supervisors-Meetings.