Commentary: When the Law Is Made in the Dark, Democracy Suffers

A new year has arrived, and with it, new voices on our Board of Supervisors. As these newly elected leaders take their seats, the community watches closely, not just to see what policies they support, but how they choose to govern. Will they conduct the people’s business in the open, with clarity and accountability? Or will they continue a trend of placing too much of that responsibility behind the closed doors of legal counsel? As 2025 begins, the question isn’t just what the board will decide—but how it will deliberate.

In our system of government, transparency is not a favor, it’s a right. It is also a responsibility, particularly for elected officials who serve as the voice of the people. When a town council or board of supervisors adopts a new ordinance, amends the comprehensive plan, or adjusts zoning laws, those decisions become the law of the land for the community. They are not theoretical. They are enforceable. And they must be publicly reasoned, not quietly delegated.

That’s why legislative transparency is more than a bureaucratic ideal, it is the very fabric of accountable governance. Unfortunately, in too many counties and towns, this principle is quietly eroding. The erosion doesn’t come from dramatic corruption or overt secrecy. It often comes in the form of excessive reliance on the town or county attorney—a slow drift of responsibility from elected representatives to legal counsel.

The concern isn’t about the importance of legal advice. Every legislative body needs guidance on what is permissible, defensible, and wise. But we cross a dangerous line when legal analysis—especially regarding public policy—is treated as confidential by default rather than public by design.

Virginia law is clear on this point. The Freedom of Information Act (FOIA) states that all public records and meetings are presumed to be open, and any exemption must be narrowly applied. This includes communications involving legal counsel. Not every conversation with the county attorney is automatically privileged. In fact, FOIA, and guidance from the Virginia FOIA Council, explicitly distinguishes between two types of legal communication:

• Privileged legal advice, which pertains to litigation, contract negotiations, or specific legal transactions. These are rightly confidential when necessary.
• Legislative legal analysis, which involves legal interpretations that help guide public policy. These are part of the open deliberative process and should not be withheld from the public.

Despite this clarity, the lines are too often blurred. The mere presence of a lawyer in the room becomes a reason to close a meeting. A legal memo is stamped “confidential,” not because it contains sensitive litigation strategy, but because it might provoke public questions or dissent.

Let’s be clear: when the public is denied access to the legal reasoning behind proposed laws, it’s not protection, it’s paternalism. And it fundamentally undermines democracy.

By paternalism, we mean the idea that government officials know what’s best for the public and therefore should decide what the public can or cannot know. It treats citizens like children who must be shielded from complexity, rather than adults capable of engaging in democratic debate.

Even worse, this opacity shifts the center of gravity within local government. Instead of elected officials taking the lead in weighing legal, fiscal, and practical considerations in open debate, they may find themselves simply ratifying what has already been shaped, sometimes even shielded, by legal staff. This isn’t just a procedural problem; it’s a structural one. It allows unelected legal professionals to set the boundaries of public discourse, limiting both transparency and accountability.

That’s not the attorney’s fault alone—it’s a failure of governance. The attorney’s role is to advise the board, not to shield it from scrutiny or make policy decisions by default. In fact, requiring the attorney to cite specific FOIA exemptions and explain when information is withheld is not political “pressure.” It’s basic accountability. It’s what FOIA demands. And it’s what the public deserves.

If we accept a culture in which policy debates are quietly redirected into closed sessions or legal memos are hidden as a matter of course, we will find ourselves living under laws we did not truly see coming, laws that were discussed out of view and justified behind closed doors.

Local government does not exist to protect itself from the people. It exists to serve them. That means facing hard questions in public, explaining legal reasoning clearly, and respecting that our constituents are not only affected by our decisions—they are owed an honest accounting of how those decisions were made.

So, let’s bring our deliberations back into the open, where they belong. Let the attorney advise. But let elected officials lead—with transparency, not behind a legal curtain.