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Virginia attorney general: Local governments must meet in person except in dire need

Virginia attorney general: Local governments must meet in person except in dire need

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screen grab city council 031620

A screen shot from the Facebook Live broadcast of Monday’s Roanoke City Council meeting showing the members sitting farther apart than usual to maintain social distance. Many local bodies have made procedural changes — some dramatic — as they cope with the COVID-19 outbreak.

Local governments scrambling to conduct board and council meetings while respecting social distancing and coronavirus safety concerns were provided limited leeway by an opinion on the matter from Virginia Attorney General Mark Herring.

Despite guidance to avoid large gatherings, Herring said in an advisory opinion issued late Friday, government bodies cannot simply turn to electronic or teleconference meetings to conduct routine public business.

They can, however, do so in dire circumstances.

State law “permits public bodies that are unable to assemble in person because of the unique characteristics of the COVID-19 virus to meet electronically to make decisions that must be made immediately and where failure to do so could result in irrevocable public harm,” Herring wrote in the opinion.

Herring cautioned that even during a state of emergency declared by Gov. Ralph Northam, Virginia’s Freedom of Information Act and meeting transparency requirements remain in effect.

“That fundamental commitment to openness must be upheld and maintained even as we consider alternative methods to conduct the operation of the government,” Herring wrote.

As concerns about the spread of the virus have escalated, and dictums closing schools, halting sports and forbidding gatherings larger than 10 people have come down, local government bodies have looked to Herring for guidance on how to comply. Most local governments in the region already have closed the doors of their offices, asking the public to use phone or online means to transact business.

Monday, the Roanoke City Council held its regularly scheduled meetings, but left every other seat on the dais empty and put some council members at tables below the dais to maintain social distancing. During the meeting, City Attorney Dan Callaghan told council members that he and many other local governments had asked Herring for an opinion.

As he read the law, Callaghan said, local government bodies can only allow one member to participate electronically at a time. There’s an exception under a state of emergency, he explained, but only to discuss issues related to the emergency.

There was hope Herring might identify some flexibility in the law that allowed broader use of electronic meetings. But Herring did not clear the way for electronic meetings as a broad solution.

“The General Assembly did not intend to permit public bodies to handle all business through electronic communication means, even during a declared emergency,” Herring wrote.

Meetings to discuss regular business must still be conducted in person with a quorum, Herring said, and the body must make arrangements for public access to the meeting, which can include teleconferencing, online streaming and online messengers. Public notice laws regarding meetings remain in effect, he added.

Without the broad ability to meet electronically, area boards and councils were each left to find a way to meet safely with the facilities and resources they have.

The Salem City Council’s meeting at 7:30 p.m. Monday will be held in the South Salem Elementary School cafeteria rather than council chambers because the larger room allows social distancing.

The Bedford County Board of Supervisors is barring the public from its Monday evening meeting, according to a news release issued Friday afternoon, but will livestream the proceeding. The board invited public comments to be sent by email or called in by phone.

The Roanoke County Board of Supervisors likewise discouraged the public from attending its meeting Tuesday, instead directing them to the livestream of the meeting.

In Botetourt County, however, the meeting is going forward as planned with no plans to livestream the meeting.

Simply canceling meetings is often not an option, because local charters sometimes require bodies to meet a certain number of times per month or at regular intervals.

The Roanoke City Council, for example, is required by the city’s charter to meet on the first and third Mondays of each month.

Boards and councils can delay some actions to minimize duration of or need for meetings, but as Roanoke City Manager Bob Cowell noted to the Roanoke City Council last week, some council business is crucial — such as adopting a budget, as most local bodies do each spring.

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