Prince Edward Supervisor Forums Would Not Be Illegal Under FOIA

   Written by on February 27, 2014 at 11:08 am

Recently, the Southside Virginia Tea Party Patriots organized a Town Hall Meeting for Prince Edward County Supervisors. A town hall meeting is just a public forum. All eight Prince Edward supervisors were invited to make a short presentation and then answer citizens’ questions. Almost immediately, Prince Edward officials told Supervisors that there were questions about the legality of such a function based on Virginia’s Freedom of Information (FOIA) laws. This seemed strange based on what the pertinent Virginia Code Section says about this question.

§ 2.2-3707, G. Nothing in this chapter shall be construed to prohibit the gathering or attendance of two or more members of a public body (i) at any place or function where no part of the purpose of such gathering or attendance is the discussion or transaction of any public business, and such gathering or attendance was not called or prearranged with any purpose of discussing or transacting any business of the public body or (ii) at a public forum, candidate appearance, or debate, the purpose of which is to inform the electorate and not to transact public business or to hold discussions relating to the transaction of public business, even though the performance of the members individually or collectively in the conduct of public business may be a topic of discussion or debate at such public meeting. The notice provisions of this chapter shall not apply to informal meetings or gatherings of the members of the General Assembly.

The phrase, “this chapter” refers to the Freedom of Information Chapter, which describes what is legal and illegal under FOIA. This Code Section, 2.2-3707, G, says that the situations described above in (i) and in (ii) are both okay. If we consider (ii), the part of this Code Section that relates to this proposed gathering of Prince Edward Supervisors would be

Nothing in this chapter shall be construed to prohibit the gathering or attendance of two or more members of a public body at a public forum, the purpose of which is to inform the electorate and not to transact public business or to hold discussions relating to the transaction of public business.

So, Virginia FOIA law explicitly says this type of gathering is legal.

Prince Edward officials who questioned the legality of this meeting said they were relying on legal advice, at least some of which came from the Virginia Freedom of Information Advisory Council, the agency designated to provide opinions on FOIA questions. A copy of the written notes on this question from the FOIA Council, discussions between a P.E. County official and the Advisory Council attorney, and the discussion between Cindy Koether, the Tea Party Representative, and the FOIA Council attorney, all relate to the possibility that Supervisors could make this gathering into an illegal meeting by transacting public business. A February 6 letter from Ms. Koether to Supervisors said that “Supervisors remarks will be directed to the audience and Supervisors will not interact with each other concerning the transaction or discussion of public business.” Ms. Koether also told Supervisors in the letter that the meeting would not be illegal under FOIA. Still, Supervisor Bobby Jones brought up the possibility of illegality at the February 11 Board Meeting. Of course, if Supervisors came to the forum, and three or more of them completely ignored the rules set up for the public forum, and started discussing public business among themselves, they could turn the gathering into an illegal Board of Supervisors meeting. But why would they do that? Supervisors attend a lot of gatherings that are not official meetings. Most supervisors went to a function honoring the Prince Edward County Sheriff’s Department last week, and they go to the Virginia Association of Counties Meetings every year. Any of these gatherings could be made illegal if Supervisors decided to engage in prohibited discussions or actions.

It turns out that because of scheduling conflicts, seven Supervisors avoided the question of whether they would refuse to attend the February 20 Town Hall because they claimed it might be illegal. If Prince Edward County Supervisors were to refuse to go to a public forum like this one because they might break the rules and do something illegal, it would be like my refusing to go in Walmart because I might shoplift while I was there. By the way, the Supreme Court of Virginia confirmed the legality of meetings such as the one scheduled in Prince Edward on February 20 way back in 2004, in Bill Beck et al. v. Gordon Shelton, et al.

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