The so-called “smoke-filled back room” for making political decisions in secret is long gone, replaced by “sunshine laws” that prescribe how public bodies, elected or unelected, must provide notice of public meetings to the community. Sunshine laws (the proper name is the Virginia Freedom of Information Act – VFOIA) also determine what constitutes a meeting, sometimes in a rather arcane manner and, if it is a public meeting, the agenda and minutes taken, and how and where those items are posted or “made available for public inspection.” If three or more members of a board (the Board of Supervisors, for example, as well as any Supervisor-appointed board, authority, or commission) attend a meeting, then the meeting may fall under the rubrics of Virginia Code governing open meetings. The Virginia General Assembly explicitly exempted its members from the open meetings laws, so there is no limit on the number of delegates or senators who may attend a community meeting.
A recent decision by the Virginia Supreme Court in Gloss v. Wheeler, a Prince William County case, broadened (or restricted, depending on one’s viewpoint) the Commonwealth’s sunshine law to apply to community meetings conducted by private entities. The issue arose when five members of the Prince William Board attended an emergency public safety meeting conducted by police and the NAACP following the death of George Floyd. Although the Prince William Circuit Court ruled that the defendants did not violate VFOIA, the plaintiffs appealed to the Virginia Supreme Court, which reversed the circuit court’s decision.
That reversal has triggered a review of how local officials may attend community gatherings, including ribbon cuttings, awards ceremonies, historical marker dedications, and any other event where there is the possibility of discussing public business. That public business could be as simple as a constituent question about real estate tax rates, a land use case or, perhaps, Parking Reimagined. If the chairman and the district supervisor attend a community event, and another supervisor shows up, one of the elected officials would have to leave; otherwise, the event could be construed as a public meeting, even if it was simply a civic association picnic. Recently, in another part of the county, one supervisor had to remain in his car until the chairman left, because the event had not been “publicly noticed” that more than two supervisors might attend. Even for purely social events, like a large political dinner, more than two members are cautioned not to sit or stand next to each other. And if a casual discussion starts to veer toward public business matters, the response from a board member would be “I’m sorry, this is getting into matters of public business, and I can’t discuss that here.” Another solution would be that board members in excess of two should leave the event.
Sadly, expanding the application of VFOIA laws actually may have the opposite effect – stifling the free exchange of commentary and information between elected officials and their constituents. Although there may be some county issues that are protected legally by Virginia Code, elected officials are loath to say “I can’t discuss that with you” to constituents. And constituents might view such a comment as obfuscation or ducking an issue when, in reality, it’s simply an effort to comply with the court decision. Board members now submit nearly all of their accepted invitations to the Board Clerk for inclusion in the publicly noticed calendar, and civic groups may be surprised to find that their community picnic, a pool opening, or a tree planting, appears on a public calendar.
Penny Gross is the Mason District Supervisor, in the Fairfax County Board of Supervisors. She may be emailed at mason@fairfaxcounty.gov.
