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A
bill that inadvertently gives workers the right to
take Sundays off sailed right through General
Assembly with no one giving it a second thought.
Everyone assumed it did what it was supposed
to do, which was to take some obsolete laws off the
books. Another
bill did receive a lot of attention during the
General Assembly, but again, no one seems to have
noticed what it actually says.
Del.
Morgan Griffith, R-Salem, introduced HB 1357 in
response to an Attorney General opinion saying that
political caucuses were subject to Freedom of
Information’s rules if public business was
discussed, because they involve informal assemblages
of three or more legislators.
Griffith
’s
bill would have exempted the General Assembly from
FOIA and given the Joint Rules Committee authority
to set the rules.
After
a great outcry from newspapers and FOIA advocates,
the Senate revised the bill so that the formal
meetings — the floor sessions, the committees, and
subcommittees -- would be covered by FOIA while
Joint Rules would propose rules for informal
gatherings. Political
caucuses wouldn’t be considered meetings at all.
At least that’s what they intended to do.
The problem is that they didn’t redefine or
limit the term “meeting.”
“Meeting”
is defined in Virginia FOIA as “the meetings
including work sessions, when sitting physically, or
through telephonic or video equipment pursuant to
2.2-3708, as a body or entity, or as an informal
assemblage of (i) as many as three members or (ii) a
quorum, if less than three, of the constituent
membership…”
Section
B of the new provision states that “Floor sessions
of either house of the General Assembly; meetings,
including work sessions, of any standing or interim
study committee of the General Assembly; meetings,
including work sessions, of any subcommittee of such
standing or interim study committee; and joint
committees of conference of the General Assembly; or
a quorum of any such committees or subcommittees,
shall be open and governed by this chapter.”
Well,
guess what? The new provision doesn’t include the
limitation of “as a body or entity.” The term
“meetings” in the new provision means what the
FOIA definition says it means, and so it includes
both meetings sitting as a body and informal assemblages of three or more legislators.
So, informal assemblages that include any
three legislators who happen to be on a committee
will still come under FOIA. The
legislators may have intended that only the formal
meetings be governed by FOIA, but they have
inadvertently included a lot of the informal
meetings, too.
What’s
left for Joint Rules to propose rules about?
They can make rules for informal assemblages
for three or more legislators who aren’t on
committees together. But
things are so much more complex now.
To determine whether an informal gathering
comes under FOIA or not, the legislators will have
to pull out lists of committees and see who’s on
what committee. From
the General Assembly website, I counted 16 standing
House committees, 11 standing Senate committees, and
22 interim study committees.
That’s 49 lists to consult, not counting
subcommittees and joint committees of conference.
Even
if informal assemblages of three of more legislators
aren’t covered, quorums are, and that’s even
more of a headache. A
quorum of a subcommittee could easily be in any
group of legislators.
To ascertain if a gathering comes under FOIA,
legislators will have to gather lists of all the
committees, including subcommittees.
Then they’ll have to figure out the quorum
for each, which will vary committee by committee.
Then they’ll have to count the legislators
present on each list and see if a quorum of that
committee happens to be present.
Only after they have gone through all the
lists, including lists of subcommittees, will they
know whether a particular gathering falls under FOIA.
From the General Assembly website, I counted
34 Senate subcommittees and 47 House subcommittees,
making a total of 130 lists to check, not counting
joint committees of conference.
It
would have been easy enough for the bill to have
been written so that FOIA would govern committee
meetings only when a quorum was gathered
specifically to discuss that committee’s business.
But that wasn’t done.
A prearranged gathering of any three who
happen to be on a committee or subcommittee and
discussion of any public business, not just
committee business, are enough to trigger FOIA.
Note, too, that the new provision has two
requirements: (1) the meetings shall be open and (2)
they shall be governed by FOIA.
Every other public body in the commonwealth
only has to abide by FOIA.
They can close meetings under FOIA
exemptions. By
stating that the meetings must both be open and
governed by FOIA, the legislators are not giving
themselves the option to use FOIA exemptions.
All meetings under Section B must be open.
Instead
of making life easier for legislators, HB 1357 is
complicating it. Certain
informal assemblages will be governed by FOIA, while
others will be governed by legislative rules.
To keep track of which gatherings are
governed by which rules, legislators may want to
keep their lists of the 49 committees and 81
subcommittees handy so they can determine who can
meet with whom without triggering FOIA. What fun!
Legislators
obviously did not consider the consequences of not
limiting the term “meeting” in HB 1357.
But here’s a question not properly
considered during the debate on the bill: Can
legislators even be bound by FOIA at all? The
Virginia constitution has definitively answered the
question of how legislative meetings are to be
governed: “Each house shall...settle its rules of
procedure.” The authority is placed with the House
and with the Senate, not with the General Assembly.
Instead of trying to figure out how to deal
with HB 1357, which is probably unconstitutional, it
would be better for the House and Senate to each
make its own rules of procedure governing access to
the legislative meetings.
Those
complaining about Griffith’s original bill fussed
that the rules could be quickly changed if the Joint
Rules Committee had governance and meetings that
ought to be open would be closed.
First off, Joint Rules can’t have
governance; the rules must be approved by the whole
House and Senate. Second,
how often have the rules been changed? The rules,
once made, seem to stay there indefinitely.
Third, the House and Senate already can
impose any change they like.
If the House or Senate passes a resolution to
close a particular meeting, it has the
constitutional authority to do so.
The House and Senate can do that anyway,
regardless of whether the meeting rules are in FOIA
or in the House and Senate rules.
So, why not put the rules where the
constitution says they are to be?
That will put the meeting rules on a much
stronger legal basis.
Courts
in other states have determined that open meeting
laws aren’t enforceable against legislators
because of separation of powers.
Legislators also can claim legislative
immunity against FOIA suits. If legislators are
bound by FOIA, they would be always bound by
decisions made by a previous legislature, because
laws don’t go into effect until after a session is
over. House
and Senate rules, on the other hand, are enacted as
the first order of business when a new session
begins. The
only way any current legislature can control
procedures for itself is with the legislative rules,
not with statute.
The
Virginia constitution clearly intends that each
house set its procedures without interference from
the other house, without having to compromise with
the other house. Since the only constitutional
governance of legislative meetings is with the House
and Senate rules, let’s encourage our legislators
to make some good, sensible open-meeting rules for
themselves in the House and Senate rules.
HB 1357 with its inadvertent consequences can
then be relegated to the dustbin, where it belongs.
--
July 12, 2004
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