Virginia Set to Expand Electronic Meeting Authority to All Governmental Bodies

Like businesses and families, government and elected leaders are also facing new challenges stemming from the coronavirus outbreak, including the all-important question: can meetings be held at all and if so, how should public meetings of governmental bodies be held?

Fortunately, state law provides some guidance to local governments and other boards, commissions, and state agencies that need to meet. However, the law does include some limitations and restrictions that have necessitated pending legislative action that would significantly expand electronic meeting authority for all state and local governmental bodies.

Under an amendment to the state budget proposed by Governor Ralph Northam, any “public body, including any state, local, regional, or regulatory body, or a governing board” would be allowed to meet electronically under a fairly narrow set of conditions. This change is necessitated by limitations in Virginia’s current statutes on electronic meetings.

Current Electronic Meeting Laws

The Virginia Code provides for public bodies to hold meetings through electronic means, but by default the body must still have a quorum physically assembled in one place.

The law is primarily designed to allow individual members of body to still participate even if they cannot be present. In other words, if one member of a body cannot attend the meeting in person, they may still participate electronically.

State law includes an exception that allows public bodies to meet electronically without a quorum physically assembled in one place so long as the meeting’s purpose is to address the emergency.

In order to meet electronically, the governor must have declared a state of emergency and the public body must find that “the catastrophic nature of the declared emergency makes it impracticable or unsafe to assemble a quorum in a single location.”

In those meetings, importantly, however, the business of the body is limited to addressing the emergency, per Virginia Code § 2.2-3708 (3).

Proposed Change

Governor Northam proposed an amendment to the state budget that the General Assembly will consider on April 22. This amendment significantly expands the authority for state and local government to hold electronic meetings.

Under the proposed amendment, in order for a public body to meet electronically the governor would still have to declare a state of emergency and the public body would still have to find “the catastrophic nature of the declared emergency makes it impracticable or unsafe to assemble a quorum in a single location.” However, the meeting would no longer be limited to addressing the emergency. Under this proposed amendment, the government body could “discuss or transact the business statutorily required or necessary to continue operations of the public body or common interest community association as defined in § 54.1-2345 of the Code of Virginia and the discharge of its lawful purposes, duties, and responsibilities.” The Governor’s proposed amendment provides authority for governmental bodies to act, without a further legislative act, for instance, a local governing body would not be required to adopt an ordinance to implement the Governor’s proposed amendment.

In other words, under the Governor’s proposed amendment, governmental bodies would be able to meet electronically and conduct any business they might otherwise conduct.

However, there are already differing interpretations about what authority the Governor’s proposed amendment would actually provide. Interpretations run from what is “necessary to continue operations of the public body” which means only business relating to the “operation of that governmental body” to a broader and more reasonable interpretation that what is “necessary” includes private party requests for approvals from a governmental body, like approval of a land use case from a local governing body.

The Virginia Local Government Attorney’s Association (the “LGA”) published a guidance document dated March 24, 2020 to provide tools to local governing bodies to assist localities in continuing to conduct business during the COVID-19 Virus. The LGA guidance provides a model ordinance and resolution, a model declaration of local emergency, a model declaration of authority of the County, City or Town Executive, a checklist for compliance with public meeting requirements, background information including statutes and Attorney General’s Opinion.

Public Notice & Transparency

Under the Governor’s proposed amendment, public bodies must still provide public notice “using the best available method given the nature of the emergency.”

Public bodies must also make “arrangements for public access or common interest community association members access to such meeting through electronic means including, to the extent practicable, videoconferencing technology.”

Otherwise, all electronic meetings must comply with all other state laws and regulations, including the availability of agendas, documents and minutes.

Gentry Locke’s Government & Regulatory Affairs team is closely monitoring the actions of state and local governments throughout the coronavirus outbreak as part of Gentry Locke’s coronavirus response team. If you have questions about how your business or organization may be affected by state action, please call us directly at 866.983.0866.