During COVID, could the Virginia General Assembly hold its own sessions by Zoom?

Plain-English summary

Two months into the COVID-19 emergency, House Speaker Eileen Filler-Corn asked whether the House and Senate themselves, not just local bodies, could meet electronically. The normal rule under VFOIA: no. Section 2.2-3707.01(D) specifically forbids the General Assembly from meeting under the emergency electronic-meetings provision (§ 2.2-3708.2). Read alongside § 2.2-3707(B), that combination would otherwise rule out remote General Assembly sessions even during a disaster.

The AG concluded that the 2020 budget bills (HB 29 and HB 30) overrode that ban for the budget period. Item 4-0.01 in each bill opens with "Notwithstanding any other provision of law" and authorizes "any public body" to meet electronically during a declared state of emergency, provided four conditions are met: (i) the nature of the emergency makes in-person assembly impracticable or unsafe; (ii) the meeting's purpose is to discuss or transact business statutorily required or necessary to continue operations; (iii) the public body posts a recording or transcript on its website per the standard VFOIA timing; and (iv) common interest community governing boards distribute minutes to members by the same method used for notice.

Although Item 4-0.01 does not define "public body," the AG read it in pari materia with VFOIA, where "public body" expressly includes legislative bodies. The General Assembly is therefore covered, and the budget item supersedes § 2.2-3707.01(D) for as long as the relevant budget is in effect.

The opinion was careful to add: this authority operates within the budget's duration; the bodies must still satisfy the four procedural conditions; and the General Assembly must continue to honor open-government principles.

Currency note

This opinion was issued in 2020. 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

The Virginia Freedom of Information Act (VFOIA) treats meetings of "public bodies" as presumptively open and in-person. Section 2.2-3707(B) generally forbids meetings conducted through telephonic, video, electronic, or other electronic communication means where members are not physically assembled, except as permitted by § 2.2-3708.2 (the emergency electronic-meetings provision) or specific Title 54.1 license-suspension rules.

For the General Assembly specifically, § 2.2-3707.01(D) imposes an additional limit: "No 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." That sentence, on its face, blocks the House and Senate from using the emergency-meeting provision that other public bodies rely on.

The 2020 budget bills changed the playing field. HB 29 (the caboose budget, 2020 Va. Acts ch. 1283) and HB 30 (the new biennial budget, 2020 Va. Acts ch. 1289) each added an Item 4-0.01. That item opens with "Notwithstanding any other provision of law" and then authorizes "any public body, including any state, local, regional, or regulatory body" to meet by electronic communication means without a physical quorum, during a declared state of emergency, subject to four procedural conditions.

The AG concluded that the "notwithstanding" preamble was enough to override the normal § 2.2-3707.01(D) prohibition for as long as the budget item was in effect, and that the General Assembly was within "any public body" because VFOIA's definition expressly includes "legislative bod[ies]." The Supreme Court of Virginia in Bd. of Supvrs. v. Cohn, 296 Va. 465 (2018), confirms that statutes addressing the same subject matter are construed in pari materia.

The opinion ends with a procedural caution: even when electing to meet electronically under Item 4-0.01, public bodies must follow the four conditions and continue to honor open-government principles.

Common questions

Q: Why does the General Assembly need a special exception when local councils could already use § 2.2-3708.2?
A: Because § 2.2-3707.01(D) specifically forbids the General Assembly from using § 2.2-3708.2 for legislative sessions. The drafters wanted constitutional sessions to happen in person under normal conditions. The COVID-19 budget items overrode that by appropriation-act amendment.

Q: Is this how the General Assembly normally amends VFOIA?
A: No. VFOIA changes ordinarily come through standalone bills amending Title 2.2. Using a budget bill to add procedural override is unusual but constitutional, the General Assembly can legislate through the Appropriation Act, and "notwithstanding any other provision of law" is the operative override language.

Q: What are the four conditions for an electronic General Assembly session?
A: From the bill text: (i) the nature of the emergency makes in-person assembly impracticable or unsafe; (ii) the meeting's purpose is to transact statutorily required business or business necessary to continue operations; (iii) the public body must post a recording or transcript on its website within VFOIA timing; and (iv) common interest community governing boards must distribute minutes by the same method used for notice. The last condition is housekeeping for HOA-type governing boards swept into the same Item 4-0.01.

Q: Does this opinion let the General Assembly meet electronically forever?
A: No. The opinion specifically says the authority operates "so long as those Items are in force and the other requirements are satisfied." When the relevant Appropriation Act expires or its provisions sunset, § 2.2-3707.01(D) resumes its normal effect.

Q: Can citizens still watch and participate?
A: Yes. The opinion stresses that even when meeting electronically, public bodies must "adhere to important principles of open government and transparency." Condition (iii) specifically requires posting a recording or transcript on the body's website. Public access is preserved through whatever electronic format the body uses.

Citations and references

Statutes:

• Va. Code § 2.2-3701 (VFOIA definitions)
• Va. Code § 2.2-3707 (Meetings to be public)
• Va. Code § 2.2-3707.01 (General Assembly meetings)
• Va. Code § 2.2-3707.1 (Posting requirements)
• Va. Code § 2.2-3708.2 (Electronic communications meetings)
• Va. Code § 44-146.17 (Governor's emergency declaration)
• Va. Code § 54.1-2345 (Common interest community governing board)

Appropriations Acts:

• HB 29, 2020 Reg. Sess., Item 4-0.01 (2020 Va. Acts ch. 1283)
• HB 30, 2020 Reg. Sess., Item 4-0.01 (2020 Va. Acts ch. 1289)

Cases:

• Bd. of Supvrs. v. Cohn, 296 Va. 465, 821 S.E.2d 693 (2018) (Virginia Supreme Court; statutes on the same subject construed in pari materia)

Constitutional provision:

• Va. Const. art. IV, § 6 (General Assembly sessions)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2020/20-024-Filler-Corn.pdf

Original opinion text

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

May 6, 2020

The Honorable Eileen Filler-Corn
Speaker, Virginia House of Delegates
Post Office Box 406
Richmond, Virginia 23218

Dear Speaker Filler-Corn:

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

Issue Presented

You inquire whether Items 4-0.01 in House Bill 29 and House Bill 30 permit the House of Delegates and the Senate of Virginia (collectively, "the General Assembly") to meet electronically during an emergency.

Statutory Background

Items 4-0.01 in House Bill 29 and House Bill 30 read, 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 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.[1]

Applicable Law and Discussion

Items 4-0.01 in House Bill 29 and House Bill 30 permit the House of Delegates and the Senate of Virginia to meet electronically during an emergency, provided certain conditions are met.

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.[2] 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."[3] 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."[4] Thus, operating together, §§ 2.2-3707(B) and -3707.01(D) would generally preclude the General Assembly from meeting electronically, including during an emergency.

However, in Items 4-0.01 in House Bill 29 and House Bill 30, 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.[5] Although Items 4-0.01 in House Bill 29 and House Bill 30 do 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.[6] Because Items 4-0.01 in House Bill 29 and House Bill 30 address "the same subject matter" as VFOIA, it is appropriate to construe their use of the term "public body" in pari materia with VFOIA's use of that same term.[7]

Accordingly, Items 4-0.01 in House Bill 29 and House Bill 30 authorize the House and Senate to meet electronically during a declared state of emergency so long as those Items are in force and the other requirements are satisfied.[8]

Even if a body chooses to meet electronically pursuant to Items 4-0.01 in House Bill 29 and House Bill 30, 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 Items 4-0.01 in House Bill 29 and House Bill 30 permit the House of Delegates and the Senate of Virginia to meet electronically during a declared emergency, including the current COVID-19 pandemic, provided they can satisfy the conditions set forth in the Items.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

1. H.B. 29, 2020 Reg. Sess., Item 4-0.01 (2020 Va. Acts ch. 1283), and H.B. 30, 2020 Reg. Sess., Item 4-0.01, both enactments available at https://budget.lis.virginia.gov/.

2. The term "public body" is broadly defined for purposes of VFOIA to include "any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties, municipal councils, governing bodies of counties, school boards and planning commissions; governing boards of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds." Va. Code Ann. § 2.2-3701.

3. Va. Code Ann. § 2.2-3707(B).

4. Va. Code Ann. § 2.2-3707.01(D).

5. H.B. 29, 2020 Reg. Sess., Item 4-0.01 (2020 Va. Acts ch. 1283), and H.B. 30, 2020 Reg. Sess., Item 4-0.01.

6. Va. Code Ann. § 2.2-3701.

7. Bd. of Supvrs. v. Cohn, 296 Va. 465, 473, 821 S.E.2d 693, 697 (2018) (observing that statutes related to the same subject matter are typically considered in pari materia).

8. So long as the respective budgets are in effect, to meet electronically, the General Assembly must satisfy the remaining prongs set out by Items 4-0.01 in House Bill 29 and House Bill 30: (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. Whether these additional requirements of Items 4-0.01 in House Bill 29 and House Bill 30 are satisfied is a fact-dependent question that is beyond the scope of this opinion.