In FOIA case, Va. Supreme Court draws ‘bright line’ upholding open meetings

Published

In a split opinion on transparency laws, the Supreme Court of Virginia on Thursday upheld a more expansive definition of what counts as a public meeting of government officials.

The case, which centered on an impromptu meeting that took place in Prince William County to discuss local unrest in May 2020 after the police killing of George Floyd, posed questions for the high court about what kinds of meetings the public should be notified about and what types of discussions count as "public business."

Lawyers representing five members of the Prince William Board of County Supervisors had pushed for more leeway for public officials to hold informal gatherings, arguing public business should be narrowly defined as matters appearing on an official meeting agenda.

A majority of Supreme Court justices rejected that argument in an opinion that pointed to the "bright line" of the Virginia Freedom of Information Act's "stated presumption in favor of open government."

"To adopt the defendants’ construction — that a topic cannot be public business until it appears on a formal Board agenda — would gut the open meeting provisions of VFOIA," Justice Wesley G. Russell Jr. wrote for the majority. "It would allow portions of or full boards of supervisors to meet, discuss and decide county business in secrecy by waiting until after their private discussions and decisions to place an item on a formal agenda."

Two Prince William residents had sued the county over a community meeting that took place the day after May 30, 2020, protest some county officials characterized as a riot. The lawsuit centered on gatherings of county officials to discuss the events of that night.

The entire Prince William Board of County Supervisors held an emergency meeting at 4 p.m. on May 31, but the litigation centered on an earlier meeting at 1 p.m. attended by five supervisors, police officials, county employees, members of the county's Citizens’ Advisory Board for law enforcement and "more than sixty members of the community," according to court documents. Despite "conflicting testimony," the Supreme Court concluded the 1 p.m. gathering effectively served as a meeting of the Citizens’ Advisory Board. Though most of the county's eight-member board of supervisors attended, three other supervisors weren't invited.

The plaintiffs in the case argued the earlier gathering should have been treated as an official public meeting, triggering FOIA's rules about notice to the public and access for anyone who wanted to attend. The defendants insisted it was not a public meeting, which meant FOIA didn't apply.

In May 2021, the local circuit court sided with the supervisors, ruling that the gathering didn't meet the legal requirements to be considered a public meeting.

The Supreme Court overruled that decision and sent the case back to the circuit court for further proceedings, concluding that enough public officials attended the meeting to trigger open meeting laws and that the topic at hand met the definition of "public business" because it had a direct bearing on the county's response to an important event.

"Issues related to the riots, the use of force by police, the use of chemical agents to quell the riots, and the property damage that was caused were all discussed," Russell wrote. "One of the first responsibilities of any government is to protect the lives, safety, and property of its citizens. As such, it is hard to imagine any scenario in which the Board would not soon address a night of protest and unrest."

The court also emphasized that the protests were the main topic at a "properly noticed" meeting that took place just hours later, bolstering its view that the earlier discussion should have been treated as a public business subject to FOIA.

In a dissenting opinion, Chief Justice S. Bernard Goodwyn and Justice Cleo E. Powell warned an overly broad definition of public business would constrain the free flow of information between elected officials and the communities they serve. The dissenting justices said they saw an important distinction between information gathering and official action by public bodies, a line they felt the majority opinion would blur.

"The new definition discourages citizen-organized informational gatherings by requiring the application of VFOIA notice requirements, even if the purpose of the meeting is purely informational," the dissent says.

In a footnote, Russell said the dissenting justices’ view, if taken to its "logical conclusion," would allow a majority of board members to huddle in private with lobbyists, political parties, or campaign donors to discuss "the locality's budget, policing issues, tax rates, land use permits, and anything and everything else that properly could come before the board but had yet to appear on the agenda."

"This cannot be so because such private meetings are exactly the type of back-room, secretive dealing that VFOIA was enacted to prevent," the opinion states.

Megan Rhyne, a transparency advocate who serves as executive director of the Virginia Coalition for Open Government, said the ruling's real-world impact probably won't be a "broad sweeping thing" because most public bodies are already mindful of what does and doesn't trigger open meeting rules. She said she took exception to the dissent's focus on a phrase in Virginia's transparency law saying nothing in FOIA should be construed to "discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth." Her view of that line's meaning, she said, is that "people who work in government should still feel free to talk to citizens."

"Even if you were trying to give that section credence, all we’re saying here is that you should’ve given notice of this meeting," Rhyne said. "If it's so important to be able to have these conversations with the public, then the public should know about them."

by Graham Moomaw, Virginia Mercury

Virginia Mercury is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Virginia Mercury maintains editorial independence. Contact Editor Sarah Vogelsong for questions: [email protected]. Follow Virginia Mercury on Facebook and Twitter.

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Published

Following a ruling from the U.S. Supreme Court that narrows environmental protections for wetlands, environmental groups say there will be little change in Virginia because of the state's strong wetlands regulations.

"Theoretically, Virginia has stronger water quality protection than the federal government," said Peggy Sanner, Virginia director of the Chesapeake Bay Foundation. Under Virginia wetlands laws and regulations, she said, the state "should be able to continue to protect all the waters of the state, including those that may not be in the federal protections."

On May 25, the U.S. Supreme Court ruled in a case known as Sackett v. U.S. Environmental Protection Agency that the wetlands protections in the Clean Water Act apply only to bodies of water with a "continuous surface connection" to larger navigable water bodies, a decision that will greatly reduce the number of wetlands the government can protect.

Previously, wetlands connected to larger bodies through groundwater and intermittent bodies of water that might dry up during portions of the year were protected under the law, which regulates pollution discharges into the nation's waters.

The Sackett family in Idaho brought the case, who argued they shouldn't have to obtain an EPA permit to build a house on their property. The EPA had said a permit was necessary because water from the land would run into a ditch that fed into a creek, which fed into a navigable lake.

After an initial loss in the U.S. Ninth Circuit Court of Appeals, the family challenged the decision and won its case in the nation's highest court.

"The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters," Justice Samuel Alito wrote in the majority opinion.

Wetlands are areas where water covers the soil and are broadly understood to encompass swamps, bogs, marshes, and areas around creeks, rivers, lakes, and ponds. They are seen as critical habitats for diverse species of wildlife. Wetlands are also seen as a critical tool to filter out pollutants from reaching larger bodies of water like the Chesapeake Bay and to absorb flooding from sea level rise and stormwater surge before communities are damaged.

While the federal government regulates disturbances of wetlands through the U.S. Army Corps of Engineers, the Clean Water Act also gave states the power to impose their own rules for wetlands.

Virginia has its own set of laws under the Department of Environmental Quality and Virginia Marine Resources Commission for wetland protections, established by the Tidal Wetlands Act of 1972 and the Virginia Nontidal Wetlands Act. As the names imply, the Tidal Wetlands Act applies to wetlands in more coastal areas, whereas the Nontidal Wetlands Act applies to inland waters.

DEQ spokesperson Aaron Proctor said the agency is still reviewing the Sackett decision and declined to comment on how it could impact Virginia's regulations.

Several Virginia environmental groups, however, said strict state laws and regulations will continue to protect Virginia's wetlands.

The laws require permits for any action that impacts wetlands and mandate that there must be "no net loss" of the resource, explained Chesapeake Bay Foundation Virginia Director Peggy Sanner. To avoid or minimize any loss, permits from DEQ that allow disturbances to wetlands "shall contain requirements for compensating impacts," which may include requirements to build new wetlands, buy credits from wetland restorers or pay into a fund that is used to restore wetlands, Sanner added.

Virginia's regulations "made a very strong protection for our waterways where you have the federal government and the state government acting together," Sanner said. "When you have one of those partners, for whatever reason, bow out, that's a cause for concern."

Mary-Carson Stiff of environmental nonprofit Wetlands Watch said that while the impact of the Supreme Court decision on traditional tidal waters isn't as much of a concern because surface water connections between bodies of water are more easily distinguishable, the effect on non-tidal waters could be greater because of climate change.

With sea level rise, waters from one ditch may jump a road or a floodwall to another land area, explained Stiff, making the new ditch a wetland through a process known as wetland migration. At the same time, coastal areas are experiencing coastal squeeze, resulting from rising sea levels pushing coastlines inland.

"From a climate change standpoint and sea level rise adaptation standpoint that's focused on natural resource conservation and shoreline ecosystem survival, this is bad news," Stiff said of the Sackett ruling.

Stiff said that Wetlands also impact other wetlands that may be further downstream or disconnected on the surface but still connected through groundwater.

"If anything happens to our laws in Virginia to weaken our ability to call the wetlands on the other side of the road wetlands, we won't have a fighting chance to do the appropriate amount of wetlands migration that needs to happen so we have wetlands under sea level rise," Stiff said.

Supreme Court Justice Brett Kavanaugh also raised concerns about the ruling's impact on areas experiencing sea level rise in his concurring opinion.

"Federal protection of the Chesapeake Bay might be less effective if fill can be dumped into wetlands that are adjacent to (but not adjoining) the bay and its covered tributaries," Kavanaugh wrote, calling the new interpretation an "overly narrow view of the Clean Water Act."

But while environmental groups are expressing some concern over Sackett's effect on wetland protection, the Virginia Farm Bureau Federation has praised the ruling as a necessary reduction of bureaucracy for farmers.

Prior to the Sackett ruling, if a farmer wanted to dig a ditch in his or her field to drain flood waters from a serious storm, the EPA would need to issue a permit for the work in addition to state approval, said Virginia Farm Bureau Vice President of Government Relations Martha Moore.

"We’re very happy with the Sackett ruling. For us, it provides clarity for farmers that don't require a team of attorneys to try and figure out," Moore said. "Virginia already has the Chesapeake Preservation Act, and you can't do anything in those zones. We already have conservation practices, we already encourage the development of wetland mitigation banks. I feel like Virginia already has those protections, and this just added another layer of bureaucracy that you don't really need."

by Charlie Paullin, Virginia Mercury

Published

The office of Attorney General Jason Miyares plans to hire six prosecutors and group violence intervention coordinators with the $2.6 million in grant funding it received to try to reduce gun crime.

Another $5 million will go toward the extension of a hospital-based violence intervention program meant to help people escape life circumstances that led to them being shot or stabbed.

Virginia State Police plans to spend $256,044 to hire a new analyst at the crime-fighting Virginia Fusion Center, who will use geographic data to help authorities spot and address trends in violent activity.

And more than a dozen local law enforcement agencies, prosecutors, and community groups will receive grant funding for a variety of initiatives to stem gun violence in their areas, projects that range from hiring more prosecutors to funding outreach programs for at-risk youth.

A report issued this week by the Virginia Department of Criminal Justice Services lays out how various state and local entities plan to spend roughly $10 million in anti-gun violence funding recently approved by the General Assembly. The new report also includes status updates on $500,000 grants previously issued to the cities of Hampton, Newport News, Portsmouth, Richmond, and Roanoke.

The more recent state funding was awarded through the 2023 Operation Ceasefire Grant Program, which runs from the start of this year through the end of 2024. Ceasefire programs are modeled after an anti-violence model Boston officials implemented in the 1990s that focuses on trying to steer people away from gangs and other activities that make them more likely to be shot or shoot someone while cracking down on those who disregard those efforts and go on to commit violence with a firearm.

Prince William County told the state it intends to use the $353,974 it received to hire a full-time "gun violence interventionist" responsible for implementing the county's "community-based intervention and prevention initiatives."

The city of Suffolk said it intends to hire a new prosecutor and "identify high-risk individuals to participate in call-ins, which will provide directed cease and desist messaging."

Prosecutors in Prince George County and neighboring Hopewell plan to use $249,996 to create a "regional prosecutor initiative," with a new attorney working in both jurisdictions to "prosecute offenders involved in firearms offenses and gun violence."

In Southwest Virginia's Lee County, officials will receive $81,766 for an additional prosecutor focused on guns, violent crime, and "methamphetamine trafficking."

A handful of nonprofit groups also received state funds for a variety of intervention programs meant to prevent violence before it occurs through mentoring programs, skills training, and mental health support.

by Graham Moomaw, Virginia Mercury

Published

The Virginia Department of Motor Vehicles (DMV) reached a significant milestone with the issuance of over three million REAL ID-compliant driver's licenses and identification cards. Starting from May 7, 2025, Virginians wishing to board domestic flights using their driver's license must present a REAL ID-compliant version, distinguished by a star in the right corner. This article explores the implications of this requirement and provides essential information for those seeking to upgrade their credentials.

The REAL ID Act, enacted by Congress in 2005, established federal security standards for state-issued driver's licenses and identification cards. The primary goal was to enhance the integrity and reliability of identification documents used for official purposes, including air travel and access to secure federal facilities. The Virginia DMV has been actively working to ensure its residents are well-prepared for the forthcoming changes.

DMV Commissioner Gerald Lackey emphasized the significance of obtaining a REAL ID: "Many Virginians rely on their state-issued credentials for air travel. If you still need to upgrade to a REAL ID, prepare for your visit now by applying online and gathering the necessary documents. When you arrive at the DMV, we are committed to delivering a personalized, positive experience that exceeds your expectations."

In addition to domestic air travel, a REAL ID will be required to access secure federal facilities, including military bases. Virginians interested in obtaining a REAL ID are strongly encouraged to apply as soon as possible, as the DMV anticipates a surge in customers as the 2025 deadline approaches. Individuals will receive guidance on the required documents by completing the application process online at dmv.virginia.gov/REALID.

It is important to note that obtaining a REAL ID is optional. Virginians who choose not to upgrade can still use their current driver's license or identification card. However, upon renewal, their new credential will display the phrase "Federal Limits Apply," indicating that it is not compliant with the REAL ID Act. For those who need to board domestic flights after May 7, 2025, alternative federally approved identification documents, such as a U.S. Passport, a Passport Card, or specific military IDs, can be used.

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Silver Branch Brewing Company, a renowned production brewery and taproom based in Silver Spring, Maryland, is making a significant move by investing $3 million to establish a new facility in Fauquier County, Virginia. The expansion aims to enhance the company's production capabilities, broaden its range of beer offerings, and strengthen its presence in the region. The project, which successfully competed with Maryland, will generate 38 new jobs and contribute to the economic growth of Fauquier County.

Governor Glenn Youngkin expressed his excitement about Silver Branch Brewing Company's expansion into Virginia, highlighting the state's reputation in the food and beverage processing industry. Governor Youngkin emphasized the Commonwealth's business advantages, industry resources, and strategic access to markets, which have contributed to its strong manufacturing growth across various regions.

Secretary of Commerce and Trade Caren Merrick welcomed Silver Branch Brewing Company to Virginia's impressive food and beverage processing industry, underscoring its position as the second-largest manufacturing sector in the Commonwealth. Merrick emphasized the value and efficiency of Virginia's robust logistics infrastructure, which enhances supply chain growth for companies. The state is committed to supporting the success of Silver Branch Brewing Company in Fauquier County.

Christian Layke, Co-Founder of Silver Branch Brewing Company, expressed excitement about joining Virginia's vibrant craft beer community. With personal ties to the area, Layke and his co-founder, Brett Robison, are fulfilling a lifelong ambition of bringing their beer to the Commonwealth. They view beer not just as a beverage but as a social experience they call "Gemütlichkeit" (German for comfort), which is essential to their brewery's ethos. Silver Branch Brewing Company is eager to welcome Virginians to their new tasting room in Old Town Warrenton and is actively seeking passionate beer lovers from Fauquier and surrounding counties to join their team.

Mayor Carter Nevill of Warrenton extended a warm welcome to Silver Branch Brewing Company, emphasizing the significance of having such a highly regarded regional brewer and restaurateur invest in the town. Mayor Nevill highlighted the thriving business community in Warrenton and the role that craft brewing plays in making Fauquier County a premier tourist destination. The addition of Silver Branch Brewing Company will complement the existing array of wonderful restaurants, craft breweries, cideries, and unique retail shops, ensuring the continued growth and success of the local economy.

Delegate Michael J. Webert expressed his support for Silver Branch Brewing Company's choice to establish their facility in Fauquier County. He credited the efforts of House Republicans and Governor Youngkin in making Virginia a more business-friendly state. Delegate Webert expressed enthusiasm for the positive impact this investment will have on the hardworking individuals in his district and home county.

Silver Branch Brewing Company, founded by Christian Layke and Brett Robison in March 2019, has gained recognition for its exceptional beers inspired by European and American brewing traditions. The company's location in the heart of downtown Silver Spring, Maryland, has served as a hub for beer enthusiasts, and now their expansion into Virginia will further solidify their presence in the craft beer community.

The Virginia Economic Development Partnership collaborated with Fauquier County to secure the project, offering support for job creation through the Virginia Jobs Investment Program (VJIP). This program provides consultative services and funding to companies creating new jobs, aiding in employee recruitment and training. VJIP, a state-funded business incentive, demonstrates Virginia's commitment to enhancing job opportunities for its citizens.

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This spring has seen increased bickering in Northern Virginia over two little-known aviation regulations called the slot and perimeter rules, which govern operations at Ronald Reagan Washington National Airport in Arlington County. What exactly are they — and why are people fighting over them? Read on to figure out what you need to know.

The perimeter rule limits the distance of nonstop flights to and from Reagan National to 1,250 miles — roughly the distance westward to Kansas and Nebraska and as far north as Quebec and Newfoundland.

Initially set at 650 miles in 1966 and then later increased, the perimeter was intended to help reduce congestion at Reagan National and encourage use of the much larger Dulles International Airport in Fairfax and Loudoun counties.

The rule allowed Congress to pass exemptions to the perimeter, which it has done three times in 2000, 2003, and 2012. (Congress has a special interest in both Reagan National and Dulles because the federal government owns them, with operations managed by the Metropolitan Washington Airport Authority, known as MWAA.)

Those exemptions have opened up Reagan to 40 daily flights — or 20 round trips — to and from Seattle, Portland, Salt Lake City, San Francisco, Denver, Las Vegas, Los Angeles, Phoenix, Austin and San Juan. A November 2020 report from the U.S. Government Accountability Office found these flights increased passenger traffic at Reagan National and "likely reduced" some of the airport's existing capacity.

Beyond-perimeter flight exemptions at Ronald Reagan Washington National Airport. (U.S. Government Accountability Office)

The slot rule also called the high-density rule, was created in 1969 to control congestion at five high-traffic airports, including Reagan National. It requires airlines to obtain a "slot," or authorization, for every takeoff from and landing at the airport; Reagan is currently limited to a maximum of 67 slots per hour.

Slots are allocated by the Federal Aviation Administration, and the GAO noted in its 2020 report that "airlines consider their slots and slot exemptions to be valuable assets." In 2009, JetBlue co-founder Dave Barger pitched then-Gov. Tim Kaine on a proposal to let airlines "slide" more slots between different hours of the day, arguing it would give more low-cost airlines access to the airport. The Kaine administration directed Barger to discuss the idea with the MWAA.

Debates over the slot and perimeter rules aren't new. They typically occur every five years when Congress reauthorizes the Federal Aviation Administration, which it's slated to do by the end of September. But this year, the issue is getting more attention after U.S. Reps. Hank Johnson of Georgia and Burgess Owens of Utah introduced legislation last month to add 28 additional flights to Reagan National both within and beyond its current perimeter.

"Five years ago, there wasn't as much of an organized effort," said Brian Walsh, a Fairfax resident who serves as the spokesperson for the Capital Access Alliance, a coalition of business organizations that most notably includes Delta Air Lines. Since then, he says, "more people are flying than ever before," and the population in Northern Virginia and around Dulles has grown.

"Nothing has been changed in a number of years, and so with this year's authorization bill, we see an opportunity to modernize what many of us see as an antiquated" system, he said.

The Capital Access Alliance has mounted an aggressive campaign to get Congress to authorize the additional flights, which it argues will allow up to 1 million more passengers to fly to and from locations outside the perimeter, drive down ticket prices and create over 1,000 new jobs. An analysis by the group concludes Reagan National is "under-utilizing its capacity compared to other major airports in the top ten U.S. metros," and prior additions of beyond-perimeter flights there have "not negatively impacted the overall passenger growth at" Dulles.

"Dulles is fully equipped to survive on its own. There are hundreds of thousands of people who live around it today," said Walsh. "This is about giving air travelers more choices."

Not everyone agrees. A counter-organization is known as the Coalition to Protect America's Regional Airports has emerged to oppose the proposal, saying adding flights from Reagan National "would create unnecessary gridlock, threaten jobs and local businesses, risk connectivity for countless communities, and increase congestion, delays, and noise."

The coalition, which includes the MWAA as well as United Airlines, several Virginia chambers of commerce and 17 Virginia airports, points in its defense to a May 25 memo from the Federal Aviation Administration that called the Capital Access Alliance report "flawed." Instead, the FAA wrote, additional flights "would likely have a negative impact on operational performance and passenger experience," and Reagan National "is more delay prone than most other airports."

Furthermore, argued coalition director Scott York in a release on the group's formation, "if the slot and perimeter rules are removed or changed, airlines will be incentivized to replace routes that promote and sustain nationwide connectivity with longer-haul, more profitable flights. These lost connections will have a significant impact on the local communities that rely on regional airports for economic development as well as safe and convenient travel."

The MWAA contends that Reagan National is already operating at full capacity and has the busiest runway in the nation, with 819 daily takeoffs and landings on average.

"While [Reagan National] is very popular because of its proximity to Capitol Hill, it simply cannot accommodate all the flights that airlines want to send to Washington," said MWAA President and CEO Jack Potter in a statement urging Congress to reject the increases.

The debate could continue at least through the summer. The current FAA authorization is set to expire at the end of September, but it's not unusual for Congress to extend the deadline.

Walsh said the Capital Access Alliance is currently focused on "educating" the public and members of Congress about the newest slot and perimeter proposal. It will have to win over a number of key votes, including those of Virginia's U.S. senators, Democrats Mark Warner and Kaine. This spring, the two joined with Maryland Sens. Ben Cardin and Chris Van Hollen to convey their "strong opposition to any attempts at changing" the current slot and perimeter rules. Virginia's six Democratic members of the U.S. House of Representatives are also opposing the measure.

"With the expansion of Metro access to Dulles, long-distance flights from the Washington region have never been more accessible or competitive," Warner and Kaine wrote in an April statement. "The slot and perimeter rules help to balance consistent world-class aviation services at the region's three major airports, which has in turn allowed for billions of dollars in private-sector capital investment in the metropolitan Washington area."

by Sarah Vogelsong, Virginia Mercury

Published

In a bold stance against the Biden Administration's recent approach to immigration, Attorney General Jason Miyares of Virginia has spearheaded an 18-state coalition in a lawsuit challenging the newly proposed ‘Circumvention of Lawful Pathways’ rule.

Labeled by the federal government as a vital tool in immigration regulation post-CDC's Title 42 public health order expiration, critics, led by Miyares, argue that the rule's actual impact is far from its purported goals. This order was instrumental during the COVID-19 pandemic, granting authorities enhanced capabilities to bar immigrants from crossing the border.

At the heart of the dispute is the definition of "lawful pathways." As per the new rule, activities previously deemed as illegal border crossings are now being classified as "lawful pathways," an interpretation viewed by some as a tacit endorsement of illegal immigration.

Miyares minces no words in his criticism, stating that the Biden Administration's plan does little to deter illegal immigration. "This… provides the Cartels with a makeshift manual on how to circumvent and exploit our immigration regulations," he said. This argument comes amid rising concerns about the increasing chaos and tragedy taking place at the border, with human trafficking and the scourge of fentanyl smuggling into Virginia's communities being spotlighted.

This contentious move has united a diverse group of states in opposition. Joining Virginia's Attorney General in this suit are Alaska, Arkansas, Florida, Idaho, Indiana, Iowa, Kentucky, Mississippi, Missouri, Montana, New Hampshire, North Dakota, Oklahoma, South Carolina, Tennessee, Utah, and Wyoming.

Given the escalating tensions surrounding immigration policy in the US, this lawsuit represents a significant challenge to the Biden administration's approach to immigration and border control. The issue will undoubtedly remain a contentious point of national debate and a potential pivot for future policy-making.

Click here to read the lawsuit.

Thank You to our Local Business Participants:

by Graham Moomaw, Virginia Mercury by Charlie Paullin, Virginia Mercury by Graham Moomaw, Virginia Mercury by Sarah Vogelsong, Virginia Mercury Thank You to our Local Business Participants: