Local governments grapple with public meetings law after Virginia Supreme Court ruling
Hampton government officials believe a Virginia Supreme Court ruling last year drastically changed the rules regarding what is considered a public meeting and therefore subject to Virginia Freedom of Information Act requirements. To avoid landing in hot water, the City Council is changing how it conducts itself when members attend local gatherings.
While some open government advocates say Hampton’s legal interpretation of the court ruling appears extreme, the court case has caused consternation for other local governments. In an attempt to clarify what type of public engagement now requires advance public notice, Virginia lawmakers have introduced at least three bills in this year’s General Assembly to address the ruling.
The case in question is Gloss. v. Wheeler. The ruling found that five members of the Prince William Board of Supervisors violated FOIA law in May 2020 by attending and discussing public business in a police citizens’ advisory board meeting without complying with public meeting requirements such as public notice and record keeping. The meeting was called to discuss police response to protests over the killing of George Floyd.
Virginia’s open government laws require that if more than two members of a public body meet, it is considered a “meeting” that must be properly noticed to the public. State code includes exceptions for functions or places where no public business is transacted or discussed or informational gatherings such as a public forum or debate.
Hampton Deputy City Attorney Meredith Jacobi said the Gloss v. Wheeler ruling “greatly expanded” what is now considered a public meeting under Virginia FOIA. During a December briefing with council members, Jacobi said the ruling will now require public bodies to have more advanced planning and more notices to the public for things like local neighborhood meetings, civic league meetings, and other types of stakeholder meetings that weren’t previously considered meetings of the city council.
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Hampton’s legal interpretation
Jacobi said the Virginia Supreme Court opinion, issued in May 2023, alters public meetings laws in a few significant ways.
First it broadens the scope of topics that could be considered public business. Jacobi said under the ruling, a topic is considered public business if it’s pending before the body — meaning an item is on their agenda or is likely to come before them in the foreseeable future. For a body that governs the whole city, she said that is “quite a broad potential list of topics.”
Second, she said it narrows — and possibly abolishes — the “listening-only exception” that allowed three or more council members to be at the same event without triggering open meeting requirements. Previously, Jacobi said three or more council members would have been able to attend events like a tour of a local economic development project or historically significant house without requiring public notice, providing public access and taking meeting minutes as long as they did not discuss amongst themselves and were only listening.
“But now the court has said that even a gathering whose motivating purpose is to inform the electorate will fall outside of the exception if its purpose expands into something that allows for discussions relating to the transaction of public business,” Jacobi said. “And again, public business is any item that could foreseeably come before you in the future.”
She said it will now take much more advance planning to ensure council members do not violate state code.
In the interim, the council plans to set up a calendar and rotation schedule to coordinate which members are attending local meetings to ensure no more than two members attend. If someone could not make a meeting, that person would inform the other council members so that someone else could go. If three or more council members plan to attend a meeting, Hampton will have to follow the public notice requirements under the Freedom of Information Act.
Hampton council members have expressed concerns these new rules could stifle conversations with the community and hurt the council’s ability to attend informative meetings.
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Possible legislative remedy
Hampton hopes the General Assembly will pass legislation to provide better clarity on the matter. Several bills have been introduced by lawmakers.
One of those is Senate Bill 36 from Sen. Mamie Locke, D-Hampton. The proposed legislation exempts certain public meetings from the definition of “meeting” under Virginia FOIA to clarify that three or more members of a public body may appear and participate in such a public meeting without violating the act, provided that no public business is transacted or discussed.
A House bill from Del. Mike Cherry, R-Colonial Heights, would go further. It explicitly says “informational gatherings” don’t count as a meeting and the attendance of members of one public body at the meeting of another public body does not constitute a meeting of the first public body so long as those members do not discuss or transact any public business. The bill also provides a definition for public business.
A third bill, SB 415, introduced by Sen. Richard H. Stuart, R-Montross, would amend the definition of “meeting” related to FOIA to add an exception for local political party meetings, “the purpose of which is to conduct political party business and not to discuss or transact any public business.”
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Other local government interpretations
Uncertainty over the Gloss v. Wheeler ruling is not unique to Hampton. Virginia’s Freedom of Information Advisory Council and various local governments have recently discussed the impact of the ruling.
Virginia FOIA Advisory Council Executive Director Alan Gernhardt said one of the most cited concerns from local governments is the uncertainty over what counts as “public business.”
“So a lot of people were saying, ‘Well, wait, how am I supposed to know what’s gonna come in the future? I don’t have a crystal ball,” Gernhardt said.
Gernhardt added there is concern among some local governments that merely listening to a discussion of public business matters could be viewed as a “consideration” of public business under the court opinion.
Billy Coleburn, a Virginia FOIA Advisory Council member, said he thinks some local governments are “reading too much into it.” He said it’s important to err on the side of transparency and that it’s “not too much to ask” that council members follow FOIA rules.
Several Hampton Roads cities said council members are not taking any different action as a result of the ruling. Newport News spokesperson Kim Bracy said whenever more than two council members plan to attend a public meeting, the City Clerk already provides public notice, pursuant to FOIA. Chesapeake spokesperson Heath Covey said council members understand if more than two council members attend a local gathering, such as a ribbon cutting, they will not discuss public business with each other.
Megan Rhyne, executive director of the Virginia Coalition for Open Government, doesn’t view the Gloss v. Wheeler ruling as a “seismic” shift for local governments. She believes the ruling continues to allow three members of a body to attend events like a tour or a forum as long as they don’t speak among themselves. But Rhyne said the coalition is sympathetic to the concerns raised by local governments and does support attempts to clarify the law.
“Some localities, I think, probably were playing a little fast and loose with these provisions as they existed before, prior to Gloss. And so I think Gloss was a wake-up call,” she said.
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Support for changes
In Hampton, Jacobi said the city supports the bills from both Locke and Cherry.
Rhyne said the open government coalition would support Locke’s bill as introduced. However, she said she would oppose any legislation that would try to narrow the definition or a public meeting or try to create a definition for “public business.” Her concern is that such attempts would ultimately lead to situations that elected officials could take advantage of.
But Stuart’s bill on FOIA exceptions for local political party meetings faces pushback from open government advocates. Neither Rhyne nor Coleburn support the bill.
Coleburn noted in areas that lean heavily Republican or Democrat, many members of city councils or boards of supervisors are also members of the local political parties and it is likely they would discuss local government matters at political gatherings.
“If it’s a red county or a blue county and most of the policymakers were there, how do they not discuss the upcoming budget or the fact that the school superintendent wants a $30,000 raise or whatever?” he said. “Political animals are political. That’s just a fact.”
Josh Janney, joshua.janney@virginiamedia.com
