Commentary: Why Legal Reasoning Behind Legislation Must Be Public Record

In my previous post, I explained why I introduced the Legal Services Transparency and Review Policy and the two incidents that made it necessary. This post is the first of three examining what the policy actually requires — starting with written legal analysis.

What the Policy Requires

For matters of significant policy import — ordinances, comprehensive plan amendments, major policy initiatives, and significant regulatory decisions — the County Attorney is to provide written analysis to the Board in advance of public meetings. This ensures that supervisors have an opportunity to understand the legal reasoning behind their votes to either support or vote against proposed legislation, and that the public can have access to the legal framework underlying the laws that govern them.

What It Doesn’t Require

Before this policy was adopted, I heard concerns that it would require the County Attorney to produce a “scholarly law review article” every time the Board needed legal guidance. One supervisor repeated this concern during public discussion.

This is not what the policy requires.

The policy explicitly excludes “routine legal questions requiring brief clarification, time-sensitive operational matters, or other circumstances where written documentation would be impractical or unnecessary.” It applies to matters of gravity — legislation, regulations, significant policy decisions — not everyday operational questions.

And here’s the key point: competent legal advice on significant legislation requires thorough preparation and analysis. That work must be done regardless of whether it’s delivered verbally or in writing. As the policy states:

“Legal advice requires the same foundational research, analysis, and reasoning whether delivered orally or in writing; written work product merely memorializes analysis that has already been performed.”

If the analysis has been done thoroughly enough to advise the Board verbally, then the legal work product already exists. Writing it down is documentation, not duplication. Suggesting otherwise implies either that the analysis wasn’t thorough to begin with or that documenting it is being treated as a burden rather than a professional obligation.

Why It Matters for Supervisors

The policy’s preamble states a principle that should be uncontroversial:

“Elected officials bear ultimate responsibility for policy decisions and must have access to the legal and factual basis for their votes.”

When legal guidance is delivered only verbally, in closed session, supervisors are left to rely on memory and notes. They cannot easily verify statutory citations, research the case law, or seek a second opinion. They cannot share the reasoning with constituents who ask why they voted a certain way.

This creates a troubling dynamic. As the preamble continues:

“Legal counsel’s role is to inform Board decision-making. Board members have a duty to understand the legal reasoning underlying their policy choices and to refer to that reasoning publicly during deliberation and in communication with inquiring constituents.”

Supervisors cannot fulfill this duty if the reasoning exists only in a closed session, they cannot discuss publicly.

Why It Matters for the Public

When the Board adopts an ordinance, it becomes law. Citizens are expected to comply with it. They have a right to understand not just what the law requires, but the legal reasoning that led to its adoption.

Statutory interpretation of proposed legislation is not privileged legal advice. It is a public policy deliberation. The Virginia FOIA Council has made this clear. In Advisory Opinion 01-07, the Council stated:

“… the ‘legal matters’ exception applies only to discussions of specific legal transactions or disputes and may not be used to justify closed meetings involving more general issues, even though those issues eventually may have legal consequences.”

The same opinion emphasized that the exemption:

“… requires more than a desire to discuss general legal matters and may not, therefore, be used as a catch-all exception to the FOI Act’s open meeting requirement and does not justify the discussion of general policy matters in executive session, absent an appropriate legal issue.”

When legal analysis underlying statutory changes is kept from the written record by default, citizens are denied the opportunity to examine and challenge the reasoning behind the laws that govern them. They cannot meaningfully participate in the deliberative process. They are presented with outcomes, not arguments. That’s not transparency in actual practice.

The Distinction That’s Being Ignored

There are two types of legal communication, and they are not the same.

The first is privileged legal advice — counsel’s guidance on actual litigation, specific contract negotiations, or identified transactions or legal disputes. FOIA permits these discussions to occur in closed session when the narrow statutory criteria are met. Nothing in the policy prevents this.

The second is legislative legal analysis — the interpretation of statutes, assessment of legal risks, and policy guidance that informs proposed ordinances and regulations. This is not privileged. It is public policy deliberation, and FOIA requires it to occur in the open. When the Board considers legislative initiatives, there are several facets to consider, in addition to the legal. Economic, cultural, and community health and well-being are examples. All of them should be open to public deliberation, including the legal, so long as they are general legal matters relating to the ordinances being considered.

I have made this distinction repeatedly — in writing, with citations to Virginia Code and FOIA Council opinions. The response from those who oppose this policy has not been to dispute the distinction. It has been to ignore it entirely, treating all legal communication as though it were presumptively confidential.

This conflation is precisely the problem the policy is designed to address. When virtually everything the County Attorney conveys to the Board is treated as protected, the public is shut out of the deliberative process by default. That’s not what FOIA allows. It’s not what transparency requires. And it’s not what the public that lives under the ordinances should have to settle for.

The Two Cases Revisited

Consider how this played out with the agritourism and groundwater ordinances.

In both cases, written legal analysis — shared with the Board and available to the public — would have enabled open deliberation. Supervisors could have examined the legal reasoning. Citizens could have weighed in. The Board could have debated the merits in public, as FOIA intends.

Instead, the analysis was absent in both cases. One hearing was interrupted without being closed, and the motion was tabled. One ordinance never reached a hearing at all because the County Attorney would not address the matter outside of closed session. Whatever position one might hold on either policy, the public process was short-circuited.

The written legal analysis requirement exists to prevent that from happening again.

Next: FOIA Compliance for Closed Sessions

The next article will explain the second component of the policy: what it requires for closed sessions, and why those requirements simply reflect what Virginia law already demands.