Attorney General Herring has issued an advisory opinion outlining the authority of public bodies, including local governments, to conduct meetings and critical public business while meeting social distancing needs and important transparency and accountability obligations.
“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.
The opinion says that Virginia law allows public bodies to conduct meetings electronically if “the purpose of the meeting is to address the emergency,” which includes meeting “to make decisions that must be made immediately and where failure to do so could result in irrevocable public harm.”
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.”
Finally, the opinion reinforces that important public accountability and transparency measures must be followed even during an electronic meeting or an emergency, including the need for public access, proper public notice, publicly available agendas, roll-call votes, and recorded minutes.
Here are a few key passages 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. The General Assembly has declared that VFOIA “shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government.” That fundamental commitment to openness must be upheld and maintained even as we consider alternative methods to conduct the operation of the government. [Page 2]
• As the Governor’s Executive Order makes clear, the “occurrence” that prompted its issuance is “the potential spread of COVID-19, communicable disease of public health threat” and “[t]he anticipated effects” of that spread. Accordingly, Code § 2.2-3708.2(A)(3) permits a public body to meet electronically if “the purpose of the meeting is to address the emergency”—that is, the spread of the COVID-19 virus or its “anticipated effects,” including the inability of public bodies to assemble in person because of the need for social distancing for a prolonged period of time. Consistent with the definition of “emergency” in Code § 44-146.16, it is my view that 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. [Page 3-4]
• What is clear, however, is that the General Assembly did not intend to permit public bodies to handle all business through electronic communication means, even during a declared emergency. Such an interpretation would essentially read out the specifically enumerated requirement that “the purpose of the meeting is to address the emergency,” thus violating the “rule of statutory construction that discourage[s] any interpretation of a statute that would render any part of it useless [or] redundant.” For that reason, 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. [Page 4]
• Even when a public body is authorized to meet via electronic communication means, moreover, Code § 2.2-3708.2(A)(3) details further procedural steps such bodies must take to comply with VFOIA. 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.” The notice must contain the date and time of the meeting, as well as information required for the public to access the electronic meeting. As always, a copy of the proposed agenda and agenda packets must be made available to the public at the same time such documents are available to the members of the agency, and these materials may be placed on the same electronic forum as the public notice. Minutes of meetings during the state of emergency must record “[t]he nature of the emergency, the fact that the meeting was held by electronic communication means, and the type of electronic communication means by which the meeting was held.” For state public bodies, VFOIA also requires that all votes “taken during the meeting . . . be recorded by name in roll-call fashion and included in the minutes.” [Page 4-5]
• In sum, it is my opinion that 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. It is also my opinion that Code § 44-146.21 does not authorize local governing bodies to hold meetings solely by electronic communication during the pendency of the emergency, but that Code § 15.2-1413 provides additional authority for localities to ensure continuity of government during the declared emergency. [Page 7]
Governor Northam COVID-19 update briefing – April 8, 2020
Town Talk: A conversation with Mayor Eugene Tewalt
Town Talk is a series on the Royal Examiner where we will introduce you to local entrepreneurs, businesses, non-profit leaders and political figures who influence Warren County. Topics will be varied but hopefully interesting. If you have an idea, topic or want to hear from someone in our community, let us know. Send your request to news@RoyalExaminer.com
In this Town Talk, we’ll have a conversation with Mayor Eugene Tewalt. Town of Front Royal Mayor Eugene Tewalt stopped by Royal Examiner’s studio and provided us with an update report on the emergency response process underway and a projected budget shortfall that will be discussed at the next Town Council work session On Thursday, April 9th.
Shenandoah National Park will temporarily close
The National Park Service (NPS) received a letter from the Rappahannock Rapidan Health District of the Virginia Department of Health recommending the full closure of Shenandoah National Park. Upon receiving this request from the health department, Superintendent Jennifer Flynn, with the support of the NPS Deputy Director, Operations, David Vela and Secretary of the Interior David Bernhardt, made the decision to immediately close the park until further notice.
Virginia State Highways 211 and 33 will remain accessible to pass-through.
The health and safety of our visitors, employees, volunteers, and partners is our number one priority. The NPS is working service-wide with federal, state, and local authorities to closely monitor the COVID-19 pandemic. The park will notify the public when it resumes full operations and provides updates on the park website https://www.nps.gov/shen/planyourvisit/alerts.htm and social media channels.
The NPS encourages people to take advantage of the many digital tools already available to explore Shenandoah National Park, including:
• Visit our website for interactives, photo galleries, videos, and webcams: https://www.nps.gov/shen/learn/photosmultimedia/index.htm
• Subscribe to our YouTube channel: https://www.youtube.com/user/ShenandoahNPS
Updates about NPS operations will be posted on www.nps.gov/coronavirus. Please visit www.goshenandoah.com for updates about park concessioner, Delaware North’s operations.
Governor Northam announces plans to postpone upcoming Virginia elections in response to COVID-19
~ Governor delays June primary by two weeks asks General Assembly to move May elections to November ~
RICHMOND—Governor Ralph Northam today (April 8, 2020) requested the General Assembly move the May General Election and all special elections scheduled for May 5, 2020, to the November 3, 2020, General Election date to further mitigate the spread of COVID-19. The Governor is also exercising his statutory authority (§ 24.2-603.1 of the Code of Virginia) to move the June primary elections from June 9, 2020, to June 23, 2020.
“As other states have shown, conducting an election in the middle of this global pandemic would bring unprecedented challenges and the potential risk to voters and those who work at polling places across the Commonwealth,” said Governor Northam. “Making these decisions now will help election officials prepare and implement the necessary changes. This is about protecting the health and safety of Virginians during this pandemic and ensuring our citizens can make their voices heard in a safe, fair, and uniform manner. I urge the General Assembly to do their part and take action to move our upcoming elections.”
“Free and fair elections are at the core of our democracy and no Virginian should have to choose between their health and exercising their right to vote, said Attorney General Herring. “I’m proud to have worked closely with Governor Northam and his team on a solution that protects both public health and the integrity of our elections.”
Moving the upcoming May elections requires action by the General Assembly. The plan the Governor is proposing includes the following measures:
• There will be one ballot in November.
• Voters who are qualified in November will be able to vote in November. An individual who was not qualified in May but is qualified in November will be able to vote.
• All absentee ballots already cast will be discarded. Virginians will have an opportunity to vote for local elected officials in November.
• Those officials whose terms are to expire as of June 30, 2020, will continue in office until their successors have been elected on November 3, 2020, and have been qualified to serve.
For additional resources and information about Virginia’s COVID-19 response, please visit virginia.gov/coronavirus.
Update: When virtual becomes vital
Randolph-Macon Academy teachers and students have truly embodied the boarding school’s tagline, “The Power of Rise,” throughout the current COVID-19 pandemic. The R-MA administration had been carefully monitoring the situation since the coronavirus had arrived in the U.S., and the faculty had begun preparing for closing the physical campus and moving to online classes. However, the rapid change to the situation in early March caused school officials to make that decision slightly earlier than anticipated, and on March 12th they announced that Friday, March 13th, would be the final day of classes on campus. The teachers were given two workdays, March 16th, and 17th, to finish completing their lesson plans for online classes, and on Wednesday, March 18th, virtual classes began.
The transition was nearly seamless. R-MA’s decision to invest in 1:1 technology two years ago now provided the necessary tools. The teachers continued on as if they had not just been issued a challenge that has changed the way they conduct their day-to-day classes, and in some cases (such as PE) has caused them to rewrite entire lesson plans. The students continued with a full class day schedule; while teachers might “release” them early to work on assignments, the regular class day has continued, complete with tutorial sessions, which kept the instructional burden on the teachers, rather than placing it on the parents.
“I believe that having a consistent daily structure and online instruction has created some normalcy for both the students and myself,” commented World History teacher Andrew Harriman ‘82. “On the first day of classes, the students were all genuinely happy to see each other. In a world of social distancing at this moment this level of connectivity has been extremely beneficial for them; and I have enjoyed being able to stay connected as well and continue to do what I love; teaching students.”
Helen Babineau of Front Royal, who has a sophomore and a senior at the Academy, commended the R-MA leadership for the speed of their response to the situation and for the program put in place. “As a parent of a senior and a sophomore, I have witnessed numerous classes functioning in “online” mode,” she said. “To any naysayers or doubters, I can testify that my kids are continuing to learn and be challenged at home. If anything they look forward to their classes more than ever, because this is their only time connecting with others outside our family.”
Middle School Principal Tony Ballard also shared some comments that he had received from parents about the online learning experience. “We love that there is still structure in the day, students are still held accountable for reporting to class and getting their work done. It’s not one assignment at the beginning of the week and submit at the end of the week. The teachers are there every day and it’s monitoring progress,” wrote one parent.
“I have overheard a couple of different class discussions and it’s great that the teachers are still providing a high level of instruction while having to deal with these circumstances,” another parent said in an email.
The teachers have certainly risen to the occasion, keeping in mind that “screen fatigue” can be an issue (yes, even to teenagers!) and that projects and engagement are key. Discussions are particularly important to help the students stay connected in this time of social distancing.
German teacher Steve Latham commented, “With 1:1 computers, it’s just like being in the classroom with a few modifications. I teach my students to become independent learners, which means we can work as a class and then I can have them watch the German news in 100 seconds, then come back and discuss it. Much of what we’re doing looks like what my son is doing with college classes.”
R-MA Assistant Athletic Director Brandy Hudson had completed her student teaching internship as physical education (PE) teacher at a school with no gym and logically thought that if she had been successful in that venue, she could rise to any challenge. Now, she is a PE teacher with no gym and no students in her physical presence, but she is making it work. “We all meet as a class, discuss a health- or activity-related topic, depending on the course,” she said. “My students are required to send me their workouts through a fitness app that has a date, time and location stamp along with their stats (distance, pace, steps,…). It has worked very well and it really gives the responsibility to the students to complete these active workouts.”
Other teachers have found success in continuing with a modified version of their typical lesson plans. “Right now all of my classes are reading short paperback books in Spanish, with stories about teens having adventures,” explained Julianne Cochran. “The distance learning experience has been very different for students! They are lounging in their homes, very comfortably situated in comfy clothes, with snacks and beverages, and I am reading the books to them as they read along silently with their copy of the book. It feels reminiscent of storytime when they were little, and their mom or teacher would read to them while they relaxed and just listened. They ask any questions they have at the end of the reading so as not to interrupt the progress of the story and their understanding of it. It is a pretty cool situation so far.”
The students, knowing that this virus might take the rest of the school year from them, had at first been devastated when they were told the campus was closing, but now they have come together in the virtual world in which they grew up, offering each other support and encouragement. The R-MA drill team produced a video designed to encourage drill team members around the globe, and 26 students gathered virtually for the first online Wednesday night Bible study, “The Beacon.”
“Meeting everyone and sharing what we all have to people that care really makes us feel a little comfort,” JJ Banek-Gabelle said about the Bible study. ”Since everyone is going through the same thing, it is nice that we all can relate to each other about what is going on.”
As the news broke on March 23rd that Virginia Governor Ralph Northam was ordering all school campuses to remain closed for the rest of the academic year, the teachers and administration began discussing how to improve the online learning experience for the students. Meanwhile, R-MA President Brig Gen David C. Wesley issued a memo to the R-MA families. “In spite of recent events,” he wrote, “We remain committed to completing the school year in the most effective way possible. An academic year is not actually a pre-set number of hours in the classroom or a number of days the school is in session. In very real ways, it is a measure of the learning each student obtains toward the ultimate goal. For R-MA students, that goal has long been the completion of a college degree and success in the life beyond. That goal has not changed in this most unusual of years. We intend to press forward as we have for the past week, offering our students a full schedule of classes online, delivering Mentoring and Chapel and physical training for our students, so they can continue to grow.”
Wesley also addressed the seniors with a promise: “I pledge to you that, to the degree physically possible, we will deliver to you the best graduation ceremony R-MA has ever put on…just as soon as we can!”
Workers urge Northam to sign minimum wage bill
RICHMOND, Va. — Workers and advocates are urging Gov. Ralph Northam to sign a bill that would raise the minimum wage to $9.50 at the start of next year. The General Assembly will reconvene on April 22, and lawmakers will reevaluate recently passed legislation as the state’s economy takes a blow and unemployment climbs during the COVID-19 outbreak.
Northam and state leaders anticipate the state’s economy will suffer a major hit from the coronavirus outbreak. Northam didn’t respond directly to whether he is considering delaying the increase in the minimum wage when asked at a recent press conference.
“There are a number of pieces of legislation that we are looking at regarding our business environment, and I haven’t made any definite decisions, but we are talking to the patrons of those pieces of legislation,” Northam said. The governor said he will “make a decision in the best interest of Virginia and the best interest of our economy.”
Workers on the front lines of essential businesses continue to serve the public during the COVID-19 outbreak, including many workers who earn minimum wage–currently $7.25 in Virginia.
Employees at a Virginia Kroger grocery store and Amazon distribution center recently tested positive for the coronavirus. Many essential workers have asked for an increase in pay to reflect the increased need for their services and the elevated risks they take while working.
Anna Scholl, executive director of Progress Virginia, an advocacy organization, said that raising the minimum wage is necessary to allow these workers to raise their families with dignity.
“That’s especially true now when grocery store workers, delivery drivers, home health aides and so many more are going to work for low wages and putting themselves at risk of getting sick so that we can stay home and healthy,” Scholl said in a press release.
The group is asking Northam to sign House Bill 395 into law without amendments or delays that would water down the bill. HB 395 would raise the minimum wage to $9.50 in 2021, $11 in 2022 and $12 in 2023. The minimum wage could go up to $15 by 2026 if approved by the General Assembly.
Some essential workers also argue that they are not being provided adequate protective gear and supplies to keep them safe from the coronavirus, another reason they are pushing for a guaranteed wage increase.
Lisa Harris works at Kroger in Mechanicsville and is a member of the United Food and Commercial Workers International Union. She has been with Kroger for 13 years and said in a press conference organized by Progress Virginia that she would benefit directly from HB 395. She is urging Northam to sign the bill with no weakening amendments.
“I find it fascinating how fast grocery store workers like me have gone from being considered unskilled labor to being recognized as essential personnel,” Harris said.
She compared workers dealing directly with an increasingly infected public to being on the front lines like first responders and said: “it would be nice to be paid accordingly.”
Harris said Kroger is not observing the proper social distancing recommendation of 6 feet or providing workers with personal protective equipment. She said the staff is required to wipe down the self-checkout scanners and screens every half hour but argues that this is impossible with the influx of customers visiting the store. Harris said the staff is given Windex to clean equipment and not a proper disinfectant. The company has given full-time workers a $300 bonus and part-time workers a $150 pay boost, but that’s not enough money, Harris said.
“It means barely being able to support myself, it means making tough decisions about whether to pay a bill or skip a meal, it means calling on my family members to help me as I’m attempting to be a fully enfranchised 31-year old,” Harris said.
Allison McGee, corporate affairs manager for Kroger, said the grocery chain provided all hourly workers with a $2 pay increase for hours worked March 29 through April 18. McGee also stated that all Kroger stores in the Richmond area have been provided with Environmental Protection Agency-registered disinfectants to wipe down counters and cash registers. She said employees are required to wipe down surfaces frequently and extra hand sanitizer bottles have been provided at each checkout station.
“As far as PPE, we are encouraging our associates to wear protective masks and gloves, and we’re working hard to secure these resources for our associates,” McGee stated in an email. “Supply has started to arrive for our associates, and we anticipate all locations having personal protective equipment within the next several weeks.”
Kroger said on its website that they want healthcare workers to get a hold of protective gear before they can properly distribute it to their workers. For now, employees have limited access to such PPE and are encouraged to use their own.
Beginning April 7, Kroger will also start to limit the number of customers to 50% of the building code’s calculated capacity to allow for proper physical distancing in stores, the company announced this week.
Michael Cassidy, executive director of The Commonwealth Institute for Fiscal Analysis, said that the coronavirus is a reminder many essential workers are also minimum wage workers.
“These individuals are providing a vital service to us right now and they deserve more than $7.25 an hour,” Cassidy said.
Cassidy said if the minimum wage increase were to go into effect in January, it would help 46,000 healthcare workers, 100,00 retail workers and over 100,000 restaurant and service industry workers. He said this would allow people to buy more and contribute to businesses and the economy as a whole.
“That’s important because consumer spending is the foundation of our economy, it’s about 72% of Virginia’s gross domestic product,” Cassidy said.
Del. Danica Roem said in a tweet that she is extremely disappointed to see groups advocating for bills like HB 395 to be watered down or delayed.
“We’re $1.50/hr behind West Virginia right now,” Roem tweeted. “You don’t see an uprising of West Virginian business leaders demanding the government lower their minimum wage to match ours.”
Cassidy said history shows that increasing the minimum wage during a recession has been successful in bringing the economy back.
HB 395 is currently pending signature by Northam with a deadline of April 11.
By Ada Romano
Capital News Service