Opinion
Commentary: For Virginia state government, secrecy is too often the norm
The Virginia State Capitol in Richmond. (Ned Oliver / Virginia Mercury)
What do you have the right to know about what your state government is doing?
In Virginia, not a lot.
Virginia, like the federal government and all 49 other states, has a freedom of information law that rests on the idea that the public’s business should be accessible to the public. Governments are allowed to keep certain sensitive business secret, but it’s on them to justify why the secrecy is important enough to deviate from the norm of giving the public access to public information.
We don’t do it that way; if we’re being honest, everyone in Richmond knows that. In practice, Virginia government too frequently operates as if the Freedom of Information Act were reversed: Secrecy is the norm, and it’s the public who has the burden of justifying why the state should deviate from that and make documents open and accessible.
Here’s how it stands in Virginia.
The General Assembly isn’t subject to FOIA laws. You have no right to see lawmakers’ emails, correspondence, or other internal business.
Judges aren’t subject to FOIA.
The State Corporation Commission oversees utilities, banking, insurance, and other business-related sectors and isn’t subject to FOIA.
The governor’s office and the Office of the Attorney General technically are, but secrecy exemptions written into FOIA have been construed so broadly that they routinely block the release of information on tenuous grounds.
Gov. Glenn Youngkin’s administration’s recent refusal to release 87 of 90 records related to the crafting of the Virginia Department of Education’s abrupt policy shift on the treatment of transgender students is a case in point.
Ben Paviour, a reporter at a public radio station and NPR affiliate VPM News, recently requested all drafts of the new model policies, any email correspondence related to those drafts and records that include the words “trans” or “transgender” in emails with Superintendent Jillian Balow between Aug. 1 and Sept. 19 of this year.
The Virginia Department of Education acknowledged it had 90 records responsive to his request. But it chose to withhold 87 of them — a chunk that amounted to 315 pages of documents — citing the “Governor’s Confidential Working Papers” exemption in FOIA.
The transgender issue isn’t the point here. The point is that if you’re going to construe correspondence and documents related to public policy changes within the executive branch as “confidential working papers,” then you’re basically saying the public doesn’t have the right to know what decisions are based on. You just want them to trust you.
Youngkin isn’t the only Virginia governor to use the working papers exemption as a shield, although his administration does appear to be leaning into it with enthusiasm. Former Democratic Gov. Terry McAuliffe cited the same exemption to claim he didn’t have to release a list of the roughly 206,000 felons whose rights he restored in one fell swoop.
Virginia’s FOIA Council said McAuliffe did — but the FOIA Council is advisory only and can’t make anyone do anything. McAuliffe didn’t agree to release the list until he was sued by Loudoun County’s commonwealth’s attorney, and a civil settlement was reached. By that time, the whole issue was moot because the Supreme Court of Virginia had decided the governor hadn’t had the power to carry out a mass rights restoration that way.
There’s an important lesson Virginia’s government sends here: We might be denying access to documents unlawfully, but you’ll have to sue us to make us reverse course. That will be expensive, and it will take a very long time, and probably by the time it is resolved, the information will be largely irrelevant.
The General Assembly sometimes will pull itself together to make vague noises of concern, but again, its members aren’t subject to FOIA themselves. And they’re hardly models of transparency either.
Let’s not forget that the legislature’s system of crafting the state budget via conference committee means small groups of legislators end up negotiating billions in spending behind closed doors.
Officials will often tell you, striking a tone of wistful regret, that their hands are tied when it comes to exemptions.
They aren’t. The exemptions are not absolute prohibitions. State and local governments can choose to withhold records under the FOIA exemptions — and while sometimes that choice is clearly the responsible and right decision, it is indeed a choice, one that is supposed to rest on whether the need for secrecy outweighs the norm that the business being done for the public should be open to the public.
Politicians of all parties like to tout transparency. So let’s be transparent here: In Virginia, more often than not, the government doesn’t actually think you have the right to know what it’s doing.
A sampling of recent Virginia FOIA controversies
- Gov. Glenn Youngkin’s office refused to disclose communications with the Virginia Department of Education regarding major education policy decisions on school COVID-19 guidelines and equity initiatives, as well as communications with the Virginia Community College System over the hunt for a new chancellor. (Virginia Mercury)
- News organizations sued the Youngkin administration to try to gain access to the information coming into the education tipline the governor publicized as a way to stop the teaching of critical race theory in schools. (Associated Press)
- The Supreme Court of Virginia refused to unseal judicial disciplinary records detailing the suspension from the bench of a Virginia Beach judge who also served as chair of the Virginia Parole Board. (Virginia Mercury)
- Emergency management officials refused to release details about Virginia’s hiring of an outside consulting firm to help boost PPE and testing resources during the earliest phase of the COVID-19 pandemic, including 120 pages of recommendations and reports on the state’s handling of the crisis. (Virginia Mercury)
- During then Gov. Ralph Northam’s tenure, the executive branch redacted nearly all of the Office of the State Inspector General’s report on alleged misconduct by the Virginia Parole Board. (Virginia Mercury)
- Democrats advanced legislation to expand the working papers exemption to two recently created cabinet-level positions. (Virginia Mercury)Northam argued he doesn’t have to reveal his calendar because of the working papers exemption (Virginia Mercury)
- Then Gov. Terry McAuliffe’s administration and Virginia State Police resisted FOIA requests related to the deadly Unite the Right rally in Charlottesville, including requests from the former federal prosecutor the city hired to review how public safety failures allowed violence to break out. (Richmond Times-Dispatch)
- McAuliffe refused to release an independent investigation by Virginia State Police into an incident where a Black University of Virginia student was slammed to the ground and bloodied by Virginia ABC police. (Virginian-Pilot)
- A judge fined former House Speaker Eileen Filler-Corn $500 for an overly dismissive FOIA response her office sent to a Northern Virginia lawyer seeking records about her decision to remove Confederate statues from the Capitol. (WTVR)
- Former Attorney General Ken Cuccinelli argued that FOIA doesn’t apply to the Office of the Attorney General. He later walked the claim back. (Washington Post)
by Sarah Vogelsong, Virginia Mercury
Virginia Mercury is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Virginia Mercury maintains editorial independence. Contact Editor Sarah Vogelsong for questions: info@virginiamercury.com. Follow Virginia Mercury on Facebook and Twitter.
Opinion
An engaged Board of Supervisors is essential
In January, when Warren County Administrator, Ed Daley, introduced a Code of Conduct, he assured the cautious that it wouldn’t limit questions about “questionable situations.” On March 7, 2023, however, Daley skidded in, telling the Board to stop discussing the reassessment on attorney advice because they lack authority. The intimidated Board clutched their pearls, silenced their phones, and asked two rhetorical questions for the video record.
Jay Butler experienced Project Manager ran on avoiding scandal. He knows the drill: bids, vet, contract, staff up, watch. What could go wrong? Oh, ten percent of residential homeowners could find errors totaling $30.6M. And Butler asked if any under-assessed were corrected higher! Volunteers?
Why wasn’t an unbiased Board of Assessors appointed as voted on November 11, 2022? A license search confirmed that a one-man band just led that off-key appeals parade through the Government Center. And next up: realtors on a Board of Equalization tasked to reel in self-reporting high-priced outliers.
It’s simple math. Lowering rates on incorrect assessments won’t result in fair, uniform tax bills. This was not an unbiased reassessment of which rates can be “equalized” by self-selection. While the under-assessed snuggle happily undisturbed on their nest eggs, the Over Forty-percent Club is spitting feathers, being forced to supplement the tax difference. Why is Daley attaboying stunned victims and pushing the elected out of the loop? Not Codes of Conduct, attorneys, or domineering personalities should step between engaged elected and 1100 concerned constituents. These assessed values are inconsistent, inequitable, and inaccurate. This Board needs to engage, learn the facts, and act appropriately.
C.A. Wulf
Warren County
Opinion
Maybell Smoot (1936 – 2023)
Maybell Smoot, 86, of Front Royal, Virginia, passed away on Friday, March 24, 2023, at the Blue Ridge Inpatient Care Center in Winchester.
A funeral service will be held on Tuesday, April 4, at 11:00 am at Maddox Funeral Home, with Pastor Danny Clegg officiating. Interment will follow in Panorama Memorial Gardens at Waterlick.
Mrs. Smoot was born September 13, 1936, in Shenandoah County, Virginia, the daughter of the late Floyd and Hazel Irene Racey Tucker.
She retired after many dedicated years as a Certified Nursing Assistant.
Surviving is a daughter, Linda Lively of Front Royal; two sons, Ronnie Smoot of Winchester and Ricky Smoot of Front Royal; nine grandchildren; 27 great-grandchildren; and four great-great-grandchildren.
Mrs. Smoot was married to the late James Ashby Smoot, who preceded her in death in 2011.
Pallbearers will be great-grandsons.
The family will receive friends at the funeral home on Tuesday, April 4, from 10:00 to 11:00 am.
Local News
Commentary: Vape Shop regulations – Discriminatory or Failure to Act?
I read in a recent local publication (NVDaily: “Front Royal Council Discusses Vape Shop Boom,” March 17th) that Front Royal is struggling to explain the proliferation of vape shops within the town limits. The current shop count as indicated by the source was a total of 11 retail outlets. Recent concern expressed by Mayor Cockrell as a result of an abundance of negative social media outpouring, compelled the mayor to address this issue in a recent Town Council work session. In attendance was Laura Kopishke, Director of Planning and Zoning for Front Royal. Kopishke is quoted as saying:
“We are not soliciting but we are also not discriminating against them either so vape stores fall under retail uses — they are selling a product,” Kopishke said. “We cannot discriminate against that product that they sell.”
Additionally, Council Member Amber Morris is also quoted as concurring with the opinion rendered by Kopishke by stating that:
“The problem that we ran into was the only thing we could do was tighten our zoning regulations because, as a pretty conservative council who also enjoys free enterprise, at what point do we start regulating businesses and … at what point do you say ‘we just don’t like your type of business’ and it’s discriminatory,” Morris said.
As a town property owner and layman in government affairs, I cannot accept these statements at face value. The Commonwealth of Virginia, based upon moral ground, quality of life, and in protecting the good of the Commonwealth, has and does restrict business activity that could be deemed as corruptive or detrimental to the moral turpitude of the community. You will not find gambling establishments, title loans, internet cafes, private liquor stores, houses of ill repute, Strip Clubs, bars (where food does not count for 51% of revenue) and recreational marijuana dispensaries — yet. Somehow, the state has found that restrictions of these establishments is not discriminatory.
Furthermore, the Town of Front Royal’s Zoning Chapter 171-1(A)(B) provides town leadership the authority to classify districts in order to “regulate, restrict, permit, prohibit and determine the following: The use of land, buildings, structures and other premises for agricultural, business, industrial, residential, floodplain and other specific uses”.
Upon review of the Town of Front Royal’s Zoning Code, the Community Business District (C-1), which encompasses most if not all of the commercial corridors through town, does indeed list retail establishment uses as By-Right. Of course, Vape Shops fall under this retail guideline. There are about 40-plus/minus uses that are approved without requiring a Special Use Permit, and then another 20 uses approved via Special Use permitting. What is interesting are the retail “exceptions” further explained in Section 175-39.C of the Zoning Code. Retail establishments are not permitted to engage in transactions that are: “inclusive of coal, wood, oil, and lumberyards, accessory uses, adult bookstores (stores engaged in the sale of magazines and other publications of sexually-oriented nature), massage parlors and stores engaged in the sale of sexual aids, devices and merchandise.” – (Amended 7-25-05, 7-28-08 and 6-22-15-Effective Upon Passage)
This seems odd. Under current Council’s and Administration’s logic, these exclusions would be discriminatory to entrepreneurs that desire to engage is such business activity. While some of these industries may seem unsavory and operating contrary to the common good, why can’t vape/tobacco/THC shops be inclusive/included on this list, or at the bare minimum be removed from the retail category? Why can’t council change their zoning ordinances to place Vape Shops under a C-1 Commercial category where a Special Use Permit can/must be sought? Or better yet, create a special zoning district called the Cannabis Business District (CBD—No Pun intended). This would give Council the leverage it needs to control the influx and eventually control the districts where marijuana would be permitted to be sold. Once Cannabis licenses are granted — and it is currently planned that the State issue just 400 retail licenses statewide to sell marijuana — it is my opinion that competitive forces will force non-cannabis licensed vape shop owners out of business.
I agree with statements by Morris suggesting that vape shops are simply establishing locational dominance to aid in their business activities if they apply and are awarded a recreational THC license. However, I do not agree with the fact that Front Royal’s hands are completely tied or even tied at all in dealing with this influx.
As new or newly legal products and technologies enter the market, the Town must stay ahead of this curve to plan for future impacts. I am afraid it may be too late for the 11 existing businesses, but now is the time to end the influx, better control it, and direct where you will allow the future Marijuana shops to operate. This is not discriminatory. — This is planning. You have the tools. Use them. People don’t plan to fail, but they do fail to plan.
By Gregory A. Harold
(Editor’s note: Harold is a former member of the re-formed FR-WC EDA Board of Directors.)
Opinion
It’s not complicated
At the March 7, 2023, Board of Supervisors meeting, it was reported that homeowners of Warren County did a “good job” and “successfully” appealed over-assessments totaling $30.6M. And the knife twist: None of the under-assessed objected to their great good fortune.
A $30.6M error is not “a good job” by homeowners. It is the failure of the Board to ensure an accurate, uniform, consistent, and equitable valuation based on fact as required of the licensed mass assessor they contracted and oversee. The knee-jerk reaction to glaring inconsistency and inexplicable numeric discrepancies was to go to ground “on the advice of an attorney.”
Stop looking at the evidence!
It was easy to speak eloquently about the worrisome impact of a 40% increase in property assessments on demographics of a certain age, but where the rubber meets the road, “Your three minutes are up.” The video is available online. It is a must-see master class in spin and obfuscation.
Tax rates based on inconsistent, grossly inaccurate assessments can not be fair and impartial. It’s not complicated.
C.A. Wulf
Warren County
Editor note: There is a link to the video in the story below.
Opinion
Commentary: The Big Chill
Running the gauntlet of life
I’m reminded of a time when Graham Nash (of the musical band Crosby, Stills and Nash) visited Winchester Cathedral at Hampshire, England. He noticed a gravestone that caused him to ponder a bit and wrote down what eventually became lyrics to the song, ‘Winchester Cathedral,’
“I was standing on the grave of a soldier that died in 1799, and the date he died was a birthday, and I noticed it was mine. My head didn’t know just who I was, and I was spinning back in time.” I’ll stop there but suffice it to say this song will catch your attention. The grave at Graham’s feet was that of a young lieutenant killed in battle a couple hundred years before. This young officer had a long and promising life in front of him but collided with a bullet that changed all that. Essentially, the grave marker is all that remains of this person and countless others just like him – to include you and I one day.
This song’s tempo is rather slow but does get in a hurry now and again. My team of soldiers and I used to increase the volume during the high tempo parts of the song and speed down the streets of Kunduz and Kandahar to minimize the chances of getting shot. I kept thinking, I wonder if this officer had the same adventuresome life experiences that I had replete with romantic trysts, the sting of battle and other adrenaline filled excursions before he went down? No one alive today has any idea of that lieutenant’s life experiences, nor will they know any of mine. All that he experienced and knew and all the knowledge he accumulated died with him. I was quite sure I was going to end up just like him on several occasions in various conflict zones. A frequent musing went something like this, “Why didn’t I choose a different path in life – perhaps one down a more lead-free lane.”
I tried to be normal but the alternative lifestyle of being a normal person and driving back and forth to work amongst the masses was not appealing either, so what do you do? If you hold on too tight, you’ll have a dismal existence, so you may as well come to grips with your mortality and just go for it. It’s not the years in your life but the life in your years I keep telling myself. Everyone you know will cease to exist one day soon, so enjoy the ride while you can. That is the reality for all of us.
Getting back to our soldier at the Cathedral for a moment. Aside from a gravestone, there is no record that his family, or his friends ever existed or any memory of the sunny days or cool things they witnessed. One simply lives and dies, and the world turns, and it will continue to do so with no regard to how self-centered and concerned about the here and now that we may be.
Join me for a quick mind melt. For example, if you are 50 years old today, it is unlikely that anyone will speak your name 50 years from now, nor will they speak the name of anyone you associated with 75 years from now. Fifty years ago, is only 1973. Think about it for a minute. How often do you think about any of your relatives or friends that died over 50 years ago? First, you must be about 60 years old to even have known them at all. If their closest friends aren’t thinking about them – who is? It’s a rhetorical question. The year 1799 was 220 years ago. Countless generations of people have walked the earth before and after. One day 200 years from now, in the year 2223 someone will look at your gravestone and wonder the same. In short, it really comes down to “Out with the old and in with the new and what you do during your brief excursion on earth is largely up to you.”
As Stephen Jobs once said, “Remembering that I’ll be dead soon is the most important tool I’ve ever encountered to help me make the big choices in life. Almost everything — all external expectations, all pride, all fear of embarrassment or failure — these things just fall away in the face of death, leaving only what is truly important. Remembering that you are going to die is the best way I know to avoid the trap of thinking you have something to lose. You are already naked. There is no reason not to follow your heart. No one wants to die. Even people who want to go to heaven don’t want to die to get there. And yet, death is the destination we all share. No one has ever escaped it, and that is how it should be, because death is very likely the single best invention of life. It’s life’s change agent. It clears out the old to make way for the new.”
Hunter S. Thompson sort of reflects the road I’ve taken, although my parents oriented me along a proper azimuth with a healthy dose of Sunday School during my developmental years. Nowadays, my friends tell me I have more lives than a cat and some say, “God must be watching over you.” So, I’ve got that going for me – which is nice. Many of the people around me were not so fortunate though. Death is always close. The end of “your run” is always just a foot away. Ponder that the next time you are traveling down Route 340 at night.
While in Afghanistan in 2011, the Taliban blew up the front gate of our compound and poured through the breach throwing grenades and shooting people. The initial explosion knocked out all the power and scattered body parts all over the place. I had been out running around the compound for physical training earlier that morning and was getting dressed when the explosion occurred. As I dropped down to the floor in the dark to find my eyeglasses, a stream of bullets stitched across the walls of my room. Had I been standing – I wouldn’t be writing this. That’s the difference in life and death. Most of it is chance. There’s an old saying, “I’d rather be lucky than good.” Often luck will save a man. It did that day.
In another instance, I missed the doomed ‘Lockerbie flight’ on 21 December 1988 because of delayed dry-cleaning in the little town of Swaebisch Gmuend, Germany. With nothing to wear on my two-week journey home, I changed my flight to the following day. Otherwise, my originally scheduled connecting flight from London Heathrow to JFK in New York was the flight that blew up over Lockerbie, Scotland.
Picture from YouTube. Sky Limited. June 30, 2019
In fact, my friends in Charlotte, NC saw my name amongst the list of dead in the USA Today paper on Christmas Eve and called my house to offer condolences. They were rather elated when I answered the phone. Countless families and acquaintances of those killed experienced a horrible Christmas in December 1988. The gauntlet of life is strewn with potholes and chance. Sometimes the ride is relatively easy and other times – it’s incredibly remarkable and sometimes it’s short. Sometimes your run gets interrupted prematurely and sometimes you can sustain life for 5 score.
One last story regarding the gauntlet of life. I was introduced to members of the Kaiserslautern Ski Club over Veterans Day weekend in the year 2000. We were all there to go skiing on a glacier in the little town of Kaprun, Austria – one of few places in Europe with skiing that early in the season. On Friday, the 10th of November I met a father and his son who were members of the ski club. We were playing water polo in the lodge pool that evening. They were celebrating his son’s birthday. His mother and other siblings were unable to come along. The following morning (November 11th), we were in a cue boarding the monorail-like train for an ascent into the mountain tunnel to the glacier at the top. At the last moment, my shoestring came untied and I stopped to tie it. That 10 second pause caused me to miss the train. They were the last ones on the train as it reached capacity, and I was forced to wait for a follow-on train.
I was the only one in my little group that didn’t get on that train. Within 10 minutes, 155 people on that train were dead. An unauthorized kerosene heater had leaked over time in the driver’s compartment and somehow caught fire after the train entered the mountain tunnel. Fire rapidly spread through the polyurethane-lined train. The skiers were trapped in the tunnel and were incinerated or died of smoke inhalation. Later that evening, I had the painful experience of informing the wife that her husband and son were killed in what became known as the Kaprun Ski Disaster. [Caption by; BBC News. Europe] For her family, that day will live in infamy and their family will never be the same. For me, after more than 20 years since Kaprun, I’m still navigating my way through the gauntlet of life hoping to arrive in the grave worn out and reveling in all the unreal experiences a full life has afforded me. But as alluded to earlier, no one will have any idea of those experiences fifty years from now. Just a tombstone with the remnants of a dead soldier below it. As the French say, C’est la vie…..(such is life)
Opinion
Questions about recent assessments
When you hear, “It’s complicated,” in answer to your questions on the recent property reassessment, ask who walked the property, and check the DPOR website to see if they have a residential real estate appraiser’s license.
When I asked those questions, I got two different names; neither were licensed appraisers. The guy I met to appeal the assessment was not licensed either. That explained what I see as a convoluted mishmash of under and over-valued properties without basis, in fact. It has resulted in inequitable taxation and a database of inaccurate assessments used by mortgage and insurance companies.
Do not take my word for it. Anyone can access the database by Googling the Virginia Mass Appraisal website, finding the assessed value of just the building, and calculating the dollars per square foot of living space. Comparing that same number to the average $/sf for properties actually sold in the County, to neighbors with similar properties, and to our elected official’s homes was a real wake-up call. Assessors do not enter homes, so finished basements ought to increase, not decrease, the price per square foot that you’ve just found by this comparison method.
No need to trust my judgment. You can assign this as homework to your age-appropriate children. Or, you can pay your assigned property tax for another four years without question.
C.A. Wulf
Warren County