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]
Warren County Sheriff’s Office K9 Unit assists in arrest after driver flees vehicle
On February 22, 2021, at approximately 06:41 PM, members of the Warren County Sheriff’s Office Special Problems and Drug Enforcement Unit attempted to stop a vehicle for speeding on Stonewall Jackson Highway. The suspect vehicle failed to yield leading to a pursuit that was terminated on Gooney Manor Loop. After the pursuit was terminated, the suspect vehicle continued to drive recklessly, striking a Sheriff’s Office vehicle.
Due to the reckless and dangerous disregard for persons and property, the pursuit was then reinitiated continuing onto Bentonville Road, where the suspect lost control and wrecked at 07:02 PM. The driver fled the vehicle on foot and the passenger was apprehended at the scene. Warren County Sheriff’s Office K9 Unit consisting of Master Deputy C. Anderson and M. Griffith, along with their canine partners Rooster and Gator, apprehended the driver after a short track where the driver was found hiding in a nearby creek.
The driver, Garland Turner Jr., age 28 was charged with Possession of Schedule I/II, felony eluding, felony hit and run, assault on a law enforcement officer, and driving suspended.
The vehicle owner and passenger, Alicia Knott, age 21 was charged with Possession of Schedule I/II and obstruction of justice.
No one was injured during the incident.
Virginia State Police investigating plane crash in Frederick County
Virginia State Police Senior Trooper R. Riggs responded to a report of a plane crash in Frederick County. The crash occurred Wednesday, February 24, at 2:22 p.m. near the intersection of Back Mountain Road and Fishel Road.
The preliminary investigation revealed that a Single Engine Cessna Aircraft suffered engine failure shortly after taking off from Winchester Regional Airport. The aircraft attempted to make an emergency landing in a field and impacted the ground which caused it to overturn.
The pilot, Jonathan D. Behnke, 42, of Mount Airy, MD, suffered minor injuries in the crash and was transported to Winchester Medical Center for treatment.
No one on the ground was injured as a result of the crash.
The FAA and NTSB were notified of the crash.
The crash remains under investigation.
New People Inc. service helps the community access internet
People Incorporated is helping community members who have been impacted by the COVID-19 pandemic access internet service. The agency will set up accounts and pay for six months of internet service for clients who qualify.
Clients can qualify for this service if they have been impacted by the pandemic in some way – through the loss of a job, reduction in hours, the need to school children from home or another impact. Clients must also meet income eligibility, documentation requirements and show a need for internet service.
“Access to the internet is a necessity,” said Angie Groseclose, vice president and chief operating officer at People Inc. “It’s necessary for telehealth appointments, searching for a job and for kids to attend school, and it’s an extra expense that may not be in everyone’s budget. We want to make internet service more accessible for those who need it.”
This service is funded by emergency CARES Act funding and is available to residents in Clarke County, Frederick County, Page County, Shenandoah County and Warren County.
Interested residents can call People Inc. toll-free at 833-962-2039 for more information and to verify eligibility.
Humane Society’s ‘Polar Plunge’ rescheduled to Saturday, March 13
The Humane Society of Warren County “Polar Plunge” delayed from February 20 due to “too-polar” weather here in northwestern Virginia has been rescheduled to Saturday, March 13 – Don’t worry, it will still be a “Polar Plunge” because it’ll still be winter then, though hopefully for the plungers with a continuation of the current turn toward spring-like 60 degree temperatures! In its inaugural year of 2020, the event became a popular fundraiser supporting the Humane Society’s efforts on behalf of the local animal community and the HSWC’s Julia Wagner Animal Shelter.
As reported in the original press release on the event: this year’s “plunge” is made possible through the sponsorship of City National Bank, Cool Techs Heating and Air, Ellen Aders State Farm, AirPac, MDUB Chauffeur Services and Cavalier Kennels. This year’s event is expected to help raise as much as $12,000 for the Humane Society.
There were 35 plungers initially signed up to take a dip in the icy water, each working to help raise much-needed funds for homeless animals in Warren County. There are 15 new plungers, and 20 returning plungers who will all run into the Culpeper Lake at the 4-H Center, followed by a warm-up at the fire pit.
The event team will be ensuring that all CDC Covid-19 guidelines are followed, and masks will be required at this outdoor event.
In 2020, pre-pandemic, the top fundraiser was Molly Llewellyn, who raised over $1,000 for the shelter. There was also an award for best dressed. Both of these awards will be returning for the 2021 event.
The Humane Society of Warren County is a non-profit animal shelter that houses homeless, neglected, abused and unwanted animals. While primarily dealing with cats and dogs, the shelter has also been home to livestock, birds, reptiles and more.
Executive Director Meghan Bowers avoided taking the plunge last year, but is leading the charge into the water in 2021 dressed as a shark, so far raising about $467 from friends and family.
Hot drinks, Strites Donuts and music will keep participants warm during the run up and aftermath of the short but stimulating plunge.
For more information on this event or others, please visit HSWC Events Page.
Governor Northam increases capacity limits for outdoor sports and entertainment venues
On February 24, 2021, Governor Ralph Northam announced that as COVID-19 hospitalizations and infection rates continue to decline and vaccinations rise in Virginia, certain outdoor sports and entertainment venues may begin to operate at increased capacity starting Monday, March 1. He amended Executive Order Seventy-Two with the next steps of the “Forward Virginia” plan to safely and gradually ease public health restrictions while mitigating the spread of the virus.
“Thanks to the hard work and sacrifice of all Virginians, hospitalization and positivity rates across the Commonwealth are the lowest they have been in nearly three months,” said Governor Northam. “As key health metrics show encouraging trends, and we continue to ramp up our vaccination efforts, we can begin to gradually resume certain recreational activities and further reopen sectors of our economy. Even as we take steps to safely ease public health guidelines, we must all remain vigilant, so we can maintain our progress—the more we stay home, mask up, and practice social distancing, the more lives we will save from this dangerous virus.”
The Commonwealth will maintain a Safer at Home strategy with continued strict health and safety protocols including physical distancing, mask-wearing requirements, gathering limits, and business capacity restrictions. The current modified Stay at Home order will expire on February 28, 2021.
Governor Northam is beginning to ease public health restrictions by taking steps to increase capacity limits in outdoor settings, where evidence shows the risk of airborne transmission of COVID-19 is lower. The key changes in the Third Amended Executive Order Seventy-Two include:
• Social gatherings: The maximum number of individuals permitted in a social gathering will increase from 10 to 25 people for outdoor settings, while remaining at 10 persons for indoor settings.
• Entertainment venues: Outdoor entertainment and public amusement venues will be able to operate with up to 1,000 individuals or at 30 percent capacity, whichever is lower. If current trends continue, these venues may be able to operate at 30 percent capacity with no cap on the number of people permitted to attend starting in April. Indoor entertainment and public amusement venues must continue to operate at 30 percent capacity with a cap of 250 people. All entertainment venues were previously limited to a maximum of 250 individuals.
• Dining establishments: The on-site sale, consumption, and possession of alcohol will be permitted until midnight, extended from 10:00 p.m. All restaurants, dining establishments, food courts, breweries, microbreweries, distilleries, wineries, and tasting rooms still must be closed between midnight and 5:00 a.m.
• Overnight summer camps: As of May 1, overnight summer camps will be able to open with strict mitigation measures in place. Registration can begin now.
The new guidelines will be effective for at least one month and mitigation measures may be eased further if key health metrics continue to improve. Current guidelines for retail businesses, fitness and exercise, large amusement venues, and personal grooming services will remain in place. Individuals are strongly encouraged to continue teleworking if possible.