AG Herring releases opinion on holding public meetings during coronavirus outbreak

Virginia Politics
Mark Herring_58352

Virginia Attorney General Mark Herring speaks to reporters outside the Arlington County Courthouse in Arlington, Va., Monday, Oct. 6, 2014, following a Supreme Court decision rejecting gay marriage appeals from 5 states. The Supreme Court cleared the way Monday for an immediate expansion of same-sex marriage by unexpectedly and tersely turning away appeals from five […]

RICHMOND, Va. (WAVY) — Virginia Attorney General Mark Herring has released an opinion about the authority of public bodies and local governments to conduct meetings during the coronavirus outbreak.

Social distancing has required governing bodies and councils to reconsider holding public meetings in-person or in close quarters.

Herrings opinion, released Friday, offered a perspective on meeting social distancing needs while maintaining important transparency and accountability obligations.

His opinion states Virginia law allows public bodies to hold meetings electronically if the purpose of the meeting is to address the existing emergency, including meetings “to make decisions that must be made immediately and where failure to do so could result in irrevocable public harm.”

A news release from the attorney general’s office continues: “The opinion also outlines important limitations, saying that ‘the General Assembly did not intend to permit public bodies to handle all business through electronic communication means, even during a declared emergency,’ and that ‘public bodies should carefully consider whether taking a given action during a meeting held by electronic communication means is truly essential and should defer any and all decisions that can be deferred until it is once again possible to meet in person.'”

“This guidance will ensure that local governments and other public bodies can provide services, make decisions, and address Virginians’ needs while remaining open, transparent, and accountable to the public during this unprecedented emergency,” said Attorney General Herring.

Per the news release, here are some important excerpts from the opinion:

  • When considering how to conduct public meetings while the state of emergency remains in effect, we must remember that the requirements of VFOIA, open government, and transparency remain critically important.
  • Code § 2.2-3708.2(A)(3) 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. Whether any particular action by a public body fits within that description requires a fact-specific determination that should be made in consultation with that public body’s counsel.
  • … the General Assembly did not intend to permit public bodies to handle all business through electronic communication means, even during a declared emergency.
  • The public body must still have a quorum to conduct business and must “[m]ake arrangements for [the] public [to] access such meeting,” which can include teleconferences, online streaming, online messengers, or other equivalent means. As always, the public must receive notice at least three days before the meeting, which must be provided “using the best available method given the nature of the emergency.”

Click here to view the full opinion.

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