Sunshine Law: A closer look

Sunshine Law: A closer look
The Alexandria Courthouse. (Photo/Missy Schrott)

By Olivia Anderson |

The Alexandria Times received FOIAed documents earlier this month consisting of text and email exchanges between four City Council members who were apparently developing policy outside of scheduled public meetings.

Sent by an anonymous resident, the documents show communication between Councilors Canek Aguirre, Elizabeth Bennett-Parker, John Chapman and Mo Seifeldein about rules surrounding school resource officers – a contentious topic that has yielded both intense support and opposition among community members during the past year.

The four engage mostly in one-on-one conversations in the FOIAed documents, though all four were included in one email that had an attached video link of a potential model program.

The FOIA request was filed after the four councilors arrived at a City Council meeting armed with a joint statement for a plan that outlined their intentions on SROs moving forward.

Some residents viewed this statement as suspicious and indicative of behind-the-scenes communication, calling into question whether these actions violated Virginia’s open meetings laws that aim to ensure government transparency through open public meetings.

According to various experts’ assessments, the councilors did not technically break the law in this case, as some have claimed. However, the case opens the door to a broader conversation about the letter of the law, the spirit of the law and the gray area in between.

Black and white

The Virginia Freedom of Information Act, more commonly known as the open meetings law or Sunshine Law, states that a meeting, which consists of three or more members of a public body discussing public business, must provide notice before holding the gathering.

Intended as a way to hold the government accountable, FOIA requires there be at least three days’ notice of a meeting. It must also include the date, time, place and be open to the public.

“The reason is because when you’ve got two people, you’re not necessarily forming a consensus, but when you start to get more than two people, you could be,” Joanna Anderson, Alexandria’s city attorney, said. In council’s case, two separate FOIA requests reveal 60 pages in total of email and text exchanges that did not occur at a public meeting between the four members about SRO policy. One of the documents, titled “Safety Draft v2,” is shared individually and details a proposal to increase school safety resources.

Released on Oct. 12, the joint statement between the four members included suggested components such as a transitional addition of external police officers at all campuses; funding to support teachers and students; a review of the school security contract; a transparent open data portal and adding school safety coaches to secondary schools.

Although some residents have expressed frustration with the abrupt joint statement created outside a public meeting, Anderson said council technically did not breach the open meetings law because the messages used to create their statement were sent one-on-one.

There are two pages in the FOIA documents that show Chapman emailing Bennett-Parker, Seifeldein and Aguirre the link to a video about Charlottesville’s SCCs that he says “would be the suggested long term model to replace an SRO program.” Because three people are included on the email chain, it would be natural for one to then assume that it constitutes a violation of the open meetings law. But according to Alan Gernhardt, FOIA Council executive director, this is not the case since there are no subsequent replies on the emails.

“[The messages were] sent to three or more members but still did not constitute a meeting because there were no replies and therefore there was no simultaneous discussion or transaction of public business,” Gernhardt said.

And even if there were replies, several fairly recent court cases have ruled that the time frame in which those replies were sent is important.

In 2004, the Virginia Supreme Court determined in “Beck v. Shelton” that the exchange of emails among three or more members of a public body did not constitute a meeting for purposes of FOIA unless there was an element of “simultaneity.”

The court looked at the definition of a meeting, which includes, “an informal assemblage of (i) as many as three members or (ii) a quorum, if less than three, of the constituent membership.”

The shortest interval between any two emails in that case was more than four hours and the longest was over two days, leading to the court’s ruling that there is “virtually no simultaneous interaction” when email is used as the functional equivalent of a written letter.

Then, in 2012, “Hill v. Fairfax” appeared before the Supreme Court wherein the plaintiff alleged that the Fairfax County School Board had conducted a closed meeting about the closure of a local school in violation of FOIA through email exchanges.

In this case, the court ruled that even multiple messages exchanged among several members in an even shorter amount of time still did not meet the “simultaneous communication” threshold. This number generally included two messages at a time but in instances where there were more than two, the case found that they “conveyed information unilaterally, in the manner of an office memorandum.”

Anderson said that the advent of email and text messages is a relatively new concept for FOIA.

“People started using email more and realizing that it could become a meeting if there was a group email where they were talking so contemporaneously that it becomes a meeting [and] it feels like a meeting,” Anderson said. “But if you have one-on-one emails or group emails but responses are not simultaneous, at the same time as if they’re having a conversation, then they’re not violating FOIA.”

Gray areas

Where the waters become murky, however, is when one looks into how exactly “simultaneous” is defined in a court of law.

As it stands, aside from the aforementioned case law, the words “simultaneous” and “contemporaneous” are not explicitly defined in FOIA.

“We know that four hours is not contemporaneous, but there is no other case law that gives any more definition of that that I’m aware of,” Anderson said. “It’s just a matter of using the understanding of what contemporaneous means and making sure it doesn’t feel like it’s becoming a meeting.”

So, while it is true that the councilors did not technically breach any of Virginia’s open meetings laws – however vague and potentially in need of reform many say they might be – some contend that this type of communication breeds mistrust and lack of transparency between councilors and residents.

Megan Rhyne, executive director of Virginia Coalition for Open Government, called the concern understandable, as citizens often wonder why such little conversation takes place at public meetings. The answer, not just in council’s case but in many others that Rhyne has seen, is often that councilors have reached some sort of consensus off of the dais.

“The citizen may not like what they talked about or the decision that was made, and there’s an understandable concern about so much pre-meeting discussion going on … but the overall exchange of [council’s] messages seems to respect the Supreme Court’s boundaries and are permissible,” Rhyne said.

In the city, it’s not just residents who have expressed discontent with some of the ways council operates. Former mayor Allison Silberberg has been vocal for years about her belief that the city should “tighten up” its standards when it comes to the open meetings law and ethical ambiguity. She ran for a second term as mayor this year with ethics reform as an integral part of her platform but lost to Wilson in the Democratic primary.

“There is an important reason why Sunshine Laws exist. They exist to ensure transparency and the thinking and decisions that elected officials make every day that affect our lives,” Silberberg said. “The law is the law and it’s important for public trust. There should not be group texts and emails about policy matters such as the SRO issue and strategizing part of the meeting. It’s kind of like in soccer: everyone knows that you’re not supposed to touch the ball with your hands unless you’re the goalie.”

Yet others argue that this type of discussion is not only legal, but also an important and inevitable aspect of governance that shepherds along the process to effect change.

Aguirre was quick to point out that council’s aim is never to be deceitful or disingenuous and that everything they discuss eventually shifts into the public view.

“It’s sad that people have such a lack of understanding of how government works that they think everything is being done behind closed doors or hidden from the public. Because ultimately what happens is while we have one-on-one conversations either trying to reach consensus or build ideas, all of that comes out afterwards,” Aguirre said.

Aguirre also acknowledged that there is indeed a disconnect between council and some residents, accentuating the importance of increasing civic engagement and education about what is and is not legal under the law.

“It’s very clear that there were no Sunshine Laws broken. Everything was done in a one-to-one conversation, and if you don’t think council members or any other elected officials can have a oneon-one conversation with another elected official, I don’t know what to tell you,” Aguirre said.

Bennett-Parker sent a statement agreeing with Aguirre’s comment that the four councilors did not violate the state’s FOIA law.

Anderson also echoed this sentiment and pointed to the fact that communication among councilors is open to public inspection. She said the misunderstanding that sometimes occurs between council and residents is understandable.

“They’re not secret; it’s just not a meeting,” Anderson said. “It’s always good to help try to get the information out there so there isn’t misinformation.”

But going forward, regardless of all the minutiae and technicalities involved in Virginia’s “Sunshine Law” and the city’s case specifically, Rhyne highlighted that striving for transparency and trust among residents and government is always a noble pursuit.

“Being able to witness their representatives discuss issues in real time at a public meeting is different from having to read about the discussion in public records after the fact,” Rhyne said. “Citizens are rightfully upset when they realize that so much discussion about important issues goes on before the meetings even take place. They feel left out, which can lead to mistrust.”