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The Rappahannock News published two op-eds in the June 25th edition from Planning Commissioners Gary Light and Mary Katherine Ishee questioning why the Commission voted to deny their requests to participate in the June 17th meeting.
As was explained at the meeting, the Code of Virginia only allows electronic participation as an exception to the open meeting rules in very limited circumstances, and then, only pursuant to an adopted written policy. If the Commission violates the Code or its written policy, any action taken at the meeting could be challenged based on two Attorney General of Virginia legal opinions that any FOIA violations render the actions taken at an illegal meeting void and of no legal force or effect. The Freedom of Information Advisory Council also has issued a number of opinions to that effect.
To participate electronically in a meeting legally, a member’s request must be based on “a temporary or permanent disability or other medical condition that prevents the member's physical attendance.” But on June 17, 2020, the members that requested to participate electronically did not claim to have any medical condition that prevented their physical attendance, but stated only that they were concerned they might be exposed to COVID-19.
Since FOIA requires all exceptions and exemptions to be narrowly construed, the Commissioners physically present at the meeting concluded that Mr. Light’s and Ms. Ishee’s requests did not conform with applicable requirements of the law. It has been noted that the General Assembly made changes to the electronic meeting rules in April 2020 — after the COVID-19 outbreak resulted in a declaration of a state of emergency — but the legislature did not change this particular section to allow electronic participation in a meeting by members of a public body who didn’t actually have a medical condition, but were concerned about getting it.
In their op-ed articles, the two Commissioners asked what was gained by excluding them. First, the simple fact is that they were not “excluded” by the Commission, they opted not to attend in person and excluded themselves. Second, the other three Commissioners and myself were concerned that if we did not adhere to the law and our written policy, it might invalidate the actions taken at the meeting and expose the Commission and the County to legal challenges.
Approval of the requests would have set a precedent that might impact the validity of the Comprehensive Plan which will soon be coming to public hearing and the law requires the Commission to adopt a resolution recommending its adoption by the Board of Supervisors. If that resolution is not adopted at a legal meeting, it would open the door to challenges into the future any time the Board or the BZA issued or denied a permit based on the Comp Plan.
I and the other Commissioners who voted as they did acted out of concern about the future best interests of Rappahannock County, and we urge our fellow Commissioners to keep that in mind now and in the future. We would be doing our fellow citizens a grave disservice to take a risk of not acting in a lawful manner that would put all future zoning and land-use planning decisions in jeopardy.
— The writer is the Hampton District Representative on the Rappahannock County Planning Commission.
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