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

Plain-English summary

Senator Saslaw asked whether the Senate of Virginia could meet during an emergency with some members physically present and others participating electronically. The AG answered yes under Item 4-0.01 of House Bill 5005, provided the Item's conditions were met while it remained in force.

The Item allowed "any public body" to meet electronically during a state of emergency declared by the Governor, even without a quorum physically assembled in one location. The AG read "public body" together with Virginia's Freedom of Information Act, which includes legislative bodies, and concluded that the authority covered the Senate. If the Senate could meet entirely electronically, it could also meet with some members in person.

The Item conditioned electronic meetings on the emergency making assembly in one location impracticable or unsafe, the meeting's business being statutorily required or necessary to continue operations and lawful duties, and a public body posting a recording or transcript within the statutory timeframes. It also included a minutes-distribution condition for common interest community governing boards.

The AG said House Bill 5005's wording was substantially similar to the earlier Appropriations Act Items addressed in a prior opinion and did not differ materially for this question. He emphasized that bodies meeting electronically must continue to uphold open government and transparency.

What this means for you

If you administer Senate meetings

Under the Item as the AG read it, a Senate meeting during a declared emergency could combine physical and electronic participation if its conditions were satisfied. The opinion ties that authority to the period when the Item is in force.

If you follow legislative meetings

The opinion says that electronic participation does not remove the obligation to maintain openness and transparency. The Item required a recording or transcript to be made available on a public body's website within the referenced statutory timeframes.

Currency note

This opinion interpreted the Appropriations Act Item in force in 2021. Check current law before relying on it for a present meeting.

Common questions

Does the opinion authorize a hybrid Senate meeting?
Yes. The AG concluded that Item 4-0.01 permits a meeting with some members physically present and others participating electronically, if its conditions are met.

Did the AG find House Bill 5005 materially broader than the earlier budget Items?
No. He said its wording was substantially similar and did not differ materially for this inquiry.

Does the opinion resolve technical failures during a meeting?
No. It stresses open government and transparency, but does not analyze a specific technical failure.

Background and statutory framework

The opinion explains that the ordinary VFOIA rules generally restrict electronic sessions of the General Assembly. Item 4-0.01 applied "[n]otwithstanding any other provision of law" during a declared emergency and allowed public bodies to meet by electronic means when its listed conditions were satisfied. The AG construed the Item's phrase "public body" in light of the VFOIA definition, which includes legislative bodies.

Citations and references

• Va. Code § 2.2-3707 (meeting rule discussed in the opinion)
• Va. Code § 2.2-3707.01 (General Assembly meeting rule)
• Va. Code § 2.2-3708.2 (electronic communication provision)
• House Bill 5005, Item 4-0.01 (emergency meeting authority)

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