15.5 Statutes of Special Importance to Local Government

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

15.5 STATUTES OF SPECIAL IMPORTANCE TO LOCAL GOVERNMENT

In many substantive areas of the law localities are subject to the same legal principles as applicable to any other litigant, such as contract disputes, debt collection, construction claims, tax disputes, real estate conveyances. There are some unique elements related to local government even in the substantive areas most similar to the private sector. For example, no lien may be placed on a public construction project by a contractor, ⁶⁸ and the

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treasurer may attach bank accounts and seize property prior to a judgment to satisfy unpaid taxes from debtors with minimal due process and may "block" DMV registration for all vehicles owned by a delinquent tax payer.

15.501 Virginia Freedom of Information Act. In 1968, Virginia first codified a requirement to hold open meetings by local governments and provide public access to records held by local governments. There existed no common-law right to open meetings or access to public records before the adoption of this statute.

The United States Supreme Court has ruled that limiting the benefits of open meetings and access to records only to Virginia citizens is constitutional and complies with due process standards. ⁶⁹

A. Open Meetings. The Virginia Freedom of Information Act ⁷⁰ creates a presumption that all meetings of local governments are open to the public unless the governing body chooses to use one of the exceptions set out in the Act identifying topics that may be discussed in private. Exceptions that frequently are used by local governments include personnel discussions relating to specific officials or appointees, economic development, and actual or probable litigation.

In order to convene such a "closed session," the governing body must adopt a motion specifically identifying the purpose of the closed session and at the end of the closed session must certify that only lawful topics and those identified in the motion were discussed (closed sessions are sometimes referred to as executive sessions). Votes "certifying" closed sessions must be conducted by roll call.

B. Records Made Available. Similarly, all records and documents made or received as part of public business must be available for public inspection.

Electronic records are treated in the same fashion as paper records for the purpose of access and retention.

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The Act contains many exceptions to public disclosure such as: tax records, personnel records, advice or opinions from counsel, police investigations, and records related to claims against the locality.

C. Limited Electronic Participation in Meetings. Proxy voting by elected officials is not permitted. Participation in meetings and voting electronically is allowed in limited circumstances when a member identifies a disability or other medical condition or a personal matter that is explained as preventing his or her physical presence. ⁷¹

15.502 Virginia Conflict of Interest Act. Local government officials in Virginia are subject to the requirements of the state and local government officials Conflict of Interests Act as set forth in Va. Code § 2.2-3100 et seq. The Act is intended to be a single body of law and local governments generally may not adopt stricter conflict of interest standards except that they may more strictly restrict the acceptance of gifts. ⁷² The Act is singularly complex in its application to the myriad types of situations that public officials face. Care should be taken in applying its constraints to any given set of facts. The conflict of interest law focuses on whether an official or any family member residing in his or her household has a "personal interest," namely, financial benefit or detriment in any matter coming before the governing body.

The Act institutes a disclosure system in which local elected officials must annually and, in conjunction with specific governmental decisions, identify financial ties or financial benefits or detriments arising out of any governmental transaction in an economic interests disclosure form or real estate disclosure form. By ordinance, localities may extend disclosure requirements to high-level employees.

The Act applies to all decision-making governmental agencies including school boards, but not to advisory agencies of government. ⁷³

Additionally, it applies to not only the public official, but also incorporates members of his or her immediate family, such as a spouse or any dependent living in the same household into the various limitations and disclosure requirements of the Act.

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A. Prohibited Conduct. The Act sets forth prohibited acts that subject a public official to criminal penalties. These prohibited acts tend to restate common law acts of...