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Public meetings and hearings for local governments and other “public bodies” in Virginia

On 3/26/20, The Virginia Association of Counties has put the public meeting guidance on one page:  https://www.vaco.org/local-government-operations-guidance-from-the-local-government-attorneys-of-virginia/

On 3/21/20, Attorney General Mark Herring issued an opinion here about public meetings during the emergency. In summary, localities are not authorized to hold public meetings to conduct regular public business solely by electronic means (meaning without a physically-assembled quorum of the local governing body, and a physical location open to the public).  Therefore, localities are advised to “defer any and all decisions that can be deferred until it is once again possible to meet in person.” (3/20/20 AG Op. pg. 4)

There is however, authority for localities to adopt an ordinance setting a continuity plan to ensure that essential government functions are continued during a disaster. Virginia Code 15.2-1413 allows the governing body to put a process in place (no longer than six months) to deal with decisions that cannot be deferred. If there is a decision that cannot be delayed (and some may argue that adoption of the annual budget and appropriations is one such decision), and if the locality is still in a state of disaster, the governing body may meet emergently by electronic means under 2.2-3708.2(A)(3) (i.e., without physically convening in a single location) to pass the continuity ordinance. The 2.2-3708.2(A)(3) meeting requires:

  • a quorum of the governing body;
  • some means for the pubic to access the meeting (e.g., streaming, teleconference, or other method);
  • public access to any agenda materials made available to the governing body members (in this case, the proposed continuity ordinance); and
  • at least 3 days’ notice of the date and time to the public by the best available means, including instructions for public access.

The continuity ordinance should be narrowly written to address public meetings for government business that cannot be deferred. It may state that public meetings will only be held by electronic methods, and any input from the public will have to be made by mail (e-or snail) or other means. The publication requirement for county ordinances (in 15.2-1427(F)) may be bypassed temporarily – the continuity ordinance cannot be enforced beyond a 60-day period without the publication and other legal requirements.

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