Can the Virginia Senate hold a hybrid session, some senators in the chamber, others on Zoom, during the COVID-19 emergency?

Plain-English summary

Senate Majority Leader Dick Saslaw asked the AG to extend a May 2020 opinion (20-024, on the General Assembly's authority to meet electronically) to hybrid meetings. The Senate wanted some senators in the chamber and others on Zoom for the 2021 session.

The AG's answer: yes. Item 4-0.01 of the current Appropriation Act (HB 5005) carries the same "notwithstanding any other provision of law" preamble as the 2020 budget bills, authorizing any "public body" to meet by electronic communication means without a physical quorum during a declared state of emergency. The Item does not define public body, but VFOIA's definition (§ 2.2-3701) includes legislative bodies, so the General Assembly and its houses are covered. The authority extends to hybrid meetings: if the Item allows fully electronic meetings, it allows partially electronic ones too.

The four procedural conditions remain the same: (i) the emergency makes in-person impracticable or unsafe; (ii) the meeting's purpose is to transact statutorily required business or business necessary to continue operations; (iii) the public body posts a recording or transcript on its website per VFOIA timing; and (iv) common interest community governing boards distribute minutes to members.

The AG repeated the open-government caveat from the May 2020 opinion: even when meeting electronically or hybrid, the Senate must "adhere to important principles of open government and transparency."

Currency note

This opinion was issued in 2021. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

VFOIA's default rules (§ 2.2-3707(B)) prohibit electronic-only meetings of public bodies except as permitted by § 2.2-3708.2. Section 2.2-3707.01(D) specifically prohibits the General Assembly from using § 2.2-3708.2's emergency electronic-meetings provision. Together, these two sections would block legislative electronic meetings.

The General Assembly's workaround was the Appropriation Act. The 2020 budget bills (HB 29 and HB 30) added Item 4-0.01 authorizing electronic meetings, and the 2020 Special Session Appropriation Act (HB 5005) carried that authority into the next fiscal cycle. The AG's May 2020 opinion (20-024) had already established that "any public body" in Item 4-0.01 includes the General Assembly via in pari materia construction with VFOIA (Bd. of Supvrs. v. Cohn, 296 Va. 465 (2018)).

The 2021 opinion extends that reasoning: if the budget item permits fully electronic meetings, it permits hybrid meetings. There is nothing in the Item's language that rules out partial physical attendance. The text says public bodies "may meet by electronic communication means without a quorum of the public body or any member of the governing board physically assembled at one location." Hybrid is a fortiori within scope.

The remaining procedural conditions match the 2020 analysis. Notably, condition (ii), the purpose must be statutorily required business or business necessary to continue operations, is broader than the 2020 condition (which limited meetings to addressing the COVID emergency specifically under § 2.2-3708.2(A)(3)). The budget Item override widens the scope for legislative sessions in particular.

Common questions

Q: Can a Senate committee meeting be hybrid during the COVID emergency?
A: Per this opinion, yes. The same Item 4-0.01 analysis applies to committee meetings as to floor sessions. The four procedural conditions still apply.

Q: What if some senators participating remotely cannot hear or be heard clearly?
A: The opinion does not address technical issues. It does stress that bodies meeting electronically or hybrid must "adhere to important principles of open government and transparency," but it does not say how technical breakdowns affect the validity of action taken.

Q: Does this opinion expire when HB 5005 expires?
A: Yes. The opinion is explicit that the authority operates "so long as that Item is in force." When the relevant Appropriation Act expires, § 2.2-3707.01(D)'s general prohibition on electronic General Assembly sessions resumes.

Q: Can a local council also meet hybrid under the same authority?
A: Item 4-0.01 expressly covers "any public body, including any state, local, regional, or regulatory body." Local councils can rely on the same authority, with the same four conditions.

Q: What about quorum requirements?
A: The Item does not eliminate quorum requirements; it allows the quorum to be assembled across multiple locations (or fully online). For the Senate of Virginia, that is 21 of 40 senators (Va. Const. art. IV, § 8 sets a majority of each house as the quorum).

Citations and references

Statutes:

• Va. Code § 2.2-3701 (Definitions)
• Va. Code § 2.2-3707 (Open meetings)
• Va. Code § 2.2-3707.01 (General Assembly meetings)
• Va. Code § 2.2-3708.2 (Electronic meetings)
• Va. Code § 44-146.17 (Emergency declaration)

Cases:

• Bd. of Supvrs. v. Cohn, 296 Va. 465, 821 S.E.2d 693 (2018) (Virginia Supreme Court; in pari materia construction)

Appropriations Act:

• HB 5005, 2020 Spec. Sess. I, Item 4-0.01(g) (2020 Va. Acts Spec. Sess. I, ch. 56)

Prior AG opinions:

• 2020 Op. Va. Att'y Gen. No. 20-024 (May 6, 2020) (General Assembly electronic meetings)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2021/21-002-Saslaw-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

January 10, 2021

The Honorable Richard L. Saslaw
Member, Senate of Virginia
Post Office Box 1856
Springfield, Virginia 22151-0856

Dear Senator Saslaw:

I am responding to your request for an official advisory opinion pursuant to § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether Item 4-0.01 in House Bill 5005 (the current Appropriations Act) permits the Senate of Virginia to meet during an emergency with some members physically present and other members participating electronically.

In an opinion issued to Speaker of the House of Delegates Eileen Filler-Corn in May of last year, this Office concluded that under Items 4-0.01 of the Appropriations Acts in place at the time, the General Assembly was permitted to meet electronically during an emergency, provided the conditions in those Items were met. Your question differs from Speaker Filler-Corn's inquiry in that you ask whether the Senate of Virginia may meet during an emergency with some members physically present and others participating electronically under Item 4-0.01 of the current Appropriations Act (House Bill 5005).

Statutory Background

Item 4-0.01 in House Bill 5005 (the current Appropriation Act) reads, in relevant part:

Notwithstanding any other provision of law, any public body, including any state, local, regional, or regulatory body, or a governing board as defined in § 54.1-2345 of the Code of Virginia, or any joint meeting of such entities, may meet by electronic communication means without a quorum of the public body or any member of the governing board physically assembled at one location when the Governor has declared a state of emergency in accordance with § 44-146.17, provided that (i) the nature of the declared emergency makes it impracticable or unsafe for the public body or governing board to assemble in a single location; (ii) the purpose of meeting is to discuss or transact the business statutorily required or necessary to continue operations of the public body or common interest community association as defined in § 54.1-2345 of the Code of Virginia and the discharge of its lawful purposes, duties, and responsibilities; (iii) a public body shall make available a recording or transcript of the meeting on its website in accordance with the timeframes established in §§ 2.2-3707 and 2.2-3707.1 of the Code of Virginia; and (iv) the governing board shall distribute minutes of a meeting held pursuant to this subdivision to common interest community association members by the same method used to provide notice of the meeting.

This language is substantially similar to the language of the former Appropriations Acts analyzed in the official opinion to Speaker Filler-Corn last year (House Bills 29 and 30), and it does not differ in any material respects for purposes of your inquiry.

Applicable Law and Discussion

The Virginia Freedom of Information Act (VFOIA) creates general requirements that meetings of "public bodies" shall be open to the public and conducted in person. Except as provided in two specified statutory provisions "[n]o meeting shall be conducted through telephonic, video, electronic or other electronic communication means where the members are not physically assembled to discuss or transact public business, except as provided in § 2.2-3708.2 or as may be specifically provided in Title 54.1 for the summary suspension of professional licenses." Further, § 2.2-3707.01(D) provides that "[n]o regular, special, or reconvened session of the General Assembly held pursuant to Article IV, Section 6 of the Constitution of Virginia shall be conducted using electronic communication means pursuant to § 2.2-3708.2." Thus, operating together, §§ 2.2-3707(B) and -3707.01(D) would generally preclude the Senate of Virginia from meeting electronically, including during an emergency.

However, in Item 4-0.01 in House Bill 5005 (as in the earlier budget language), the General Assembly specifically provided that "[n]otwithstanding any other provision of law, any public body ... may meet by electronic communication means" during a declared state of emergency so long as certain requirements are satisfied. Although Item 4-0.01 does not define "public body," VFOIA specifically defines that term as including "legislative bod[ies]" such as the Virginia House of Delegates and Senate of Virginia. Because Item 4-0.01 addresses "the same subject matter" as VFOIA, it is appropriate to construe its use of the term "public body" in pari materia with VFOIA's use of that same term.

Accordingly, Item 4-0.01 in House Bill 5005 authorizes the Senate of Virginia to meet electronically during a declared state of emergency so long as that Item is in force and the other requirements are satisfied. In my opinion, this includes not only the authority for the Senate to meet entirely electronically, but also the authority for it to meet with some of its members participating in person and other members participating electronically.

Even if a body chooses to meet with some of its members participating electronically pursuant to Item 4-0.01, it is important that bodies continue to adhere to important principles of open government and transparency. The fundamental commitment to openness must be upheld and maintained, even as public bodies consider alternative methods to conduct the operation of the government.

Conclusion

For these reasons, it is my opinion that Item 4-0.01 in House Bill 5005 permits the Senate of Virginia to meet during an emergency with some members physically present and other members participating electronically, provided the conditions set forth in the Item are met. This includes the authority to meet in this fashion during the current COVID-19 pandemic.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General