1. The Virginia C ONFLICT OF I NTERESTS A CT & E THICS and F REEDOM OF I NFORMATION A CT P RACTICALLY S PEAKING 2013 CPEAV P LANNING AND Z ONING S EMINAR Sharon E. Pandak Greehan, Taves, Pandak & Stoner PLLC www.gtpslaw.com 1

2. With permission from VACo and the amazing Phyllis Errico, General Counsel 2

3. COIA Sections 2.2-3100 et seq., VA Code Ann., is real You violate it at your ethical, personal, legal, financial, and elective PERIL. 3

4. P REMISES OF COIA: 1. Dont take bribes or use influence for financial gain. Dont participate in prohibited contracts. 4

5. File a Disclosure Form of PERSONAL INTERESTS and other information (transaction based) 5

6. BUT… The official or employee must still FILE a DISCLOSURE FORM EVERY YEAR on January 15 th (Some officials and staff are required to make additional disclosures) 6

7. BUT the Clerk is not your mother – The Responsibility is Yours 7

8. T HE L INCHPIN OF COIA : Personal Interest of an official or employee = 8

9. P ERSONAL I NTEREST includes: the official or employee, their Spouse, whether or not in the same household and Dependents living in the same household (more than ½ financially supported) 9

10. W HAT M UST B E D ISCLOSED A NNUALLY ? Examples of what officials and employees must disclose: - Their Personal Interests and those of their immediate family - Ownership in real or personal property, tangible or intangible – business and financial interests; paid directorships; salaries - Ownership, interest or income from a business in excess of $10,000 - Certain personal liability on behalf of a business in excess of $10,000 10

11. A DDITIONAL E XAMPLES : - Payments for representation by the officer or employee or their associates of more than $1000 - Payments for services from businesses which operate in Virginia

12. A DDITIONAL E XAMPLES : - Payments for Talks, Meetings, Publications …. of more than $200 each 12

13. GIFTS FOR WHICH THEY NEITHER PAID NOR RENDERED SERVICES IN EXCHANGE : Any Gift or entertainment at a single event of more than $50 in value Combination of Gift or entertainment of more than $100 in value 13

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15. I NFORMATION WHICH CAN BE E XCLUDED : Personal business entertainment Gifts from a relative or personal friend Campaign contributions reported pursuant to election law 15

16. 2. If you have a personal interest, you may have to disclose before acting. 16

17. 3. If your personal interest is the only interest, you will likely have to disqualify yourself from acting. 17

18. > $10,000 in income, compensation, fringe or other benefits annually; > a 3% interest a business or real estate; Ownership of real or personal property if the interest is > $10,000, exclusive of other ownership in a business, income or benefits from the property; P ERSONAL I NTEREST OF AN OFFICIAL OR EMPLOYEE = 18

19. Personal liability on behalf of a business > 3% of the business asset value; or An option for ownership of a business or real or personal property if the interest is > 3% or > $10,000 in a contract or transaction. P ERSONAL I NTEREST OF AN OFFICIAL OR EMPLOYEE = 19

20. AND any other person in the same household for whom the officer or employee provides more than 1/2 of his or her financial support, or who provides more than 1/2 of the officers or employees financial support. 20

21. I N SUM – THE OFFICIAL OR EMPLOYEE MUST EITHER Disclose in writing and verbally if they have a conflict that you can declare and then vote on objectively & in the public interest Disclose in writing and verbally but not vote because they are legally Disqualified – as a matter of law because you cannot vote or act objectively & in the public interest 21

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23. When in doubt… 23

24. or have your County Attorney contact your Commonwealths Attorney (coordination is good) Call... contact your County Attorney, or call your Commonwealths Attorney 24

25. SO YOU HAVE A CONFLICT … CONFLICT … 25

26. 1-800-County Attorney 1-800-Commonwealths Attorney 26

27. 1-800-County Attorney 1-800-Commonwealths Attorney Avoid penalties, embarrassment, loss of office. Call early and as often as necessary. Contact: Call or Write 27

28. Enhance citizen confidence in Government... Avoid being the bad news 28

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31. FOIA Sections 2.2-3700 et seq., VA Code Ann. Open Government 31

32. Public officials shall read and familiarize themselves with the Act. §2.2-3702 VA Code Ann. 32

33. The overall policy of the FOIA is to insure that public business is done in public. 33

34. FOIA insures ready access to records and free entry to meetings of Public Bodies. 34

35. P UBLIC B ODIES : - Boards of Supervisors, City and Town Councils, - Bodies created by BOS, City or Town Council (or other public body), i.e. Planning Commissions, - Perform delegated functions of BOS or Council, - Advise the BOS or Council, or - Receive public funds 35

36. O PEN M EETING R EQUIREMENTS 36

37. W HAT IS A M EETING ? Gathering together, formally or informally, of 3 or more members. It doesnt matter if meeting is planned, votes are taken or minutes kept. Formal designation of 2 members to serve as a committee or meet on behalf of PC is a meeting subject to FOIA. 37

38. M EETING R EQUIREMENTS : Public notice - Posting - prominent public location where notices posted; - In Clerks office at least 3 working days before meeting (electronic notice encouraged) except for special or emergency meetings. - Provided to any citizen who asks. 38

39. M EETING R EQUIREMENTS CONT D : Agenda packages available for public inspection when they are given to the public body. 39

40. M EETING R EQUIREMENTS CONT D : Public must be permitted to attend unless a closed meeting is held. Cant prohibit photographing, filming or recording; can have rules to prevent interference 40

41. Minutes must be taken. No secret ballots. M EETING R EQUIREMENTS CONT D : 41

42. NOT A MEETING: Attending a conference Chance social gathering, even if public business discussed if it wasnt purpose of gathering (gathering not pre-arranged for discussion) Public forums, candidate appearances & debates Gatherings of public employees 42

43. M EMBERS OF P UBLIC B ODIES CAN ONLY A CT IN A P UBLIC MEETING But… …can do individual polling to ascertain a members position 43

44. E LECTRONIC M EETINGS ARE L IMITED During a state of emergency. When: 1) Member must notify chair of emergency or personal matter. PC must approve electronic participation. Minutes must show vote, specify emergency and remote location of participation. 2)Member must notify chair that a disability or medical condition prevents physical attendance. Minutes must show this information and remote location. 44

45. C LOSED M EETING – A NON - PUBLIC MEETING – REQUIREMENTS : Motion and vote in a public meeting. Motion must specify purpose(s) for closed meeting and reasonably identify substance. Reference pertinent statute in minutes. (No generic reference) Note: Prepare draft resolutions in advance after attorney confirms a matter qualifies. Only items identified in the motion may be discussed. 45

46. C LOSED M EETING D ETAILS : No minutes required. No action unless vote in open meeting. Staff and others needed can attend. PC must reconvene and certify that only matters qualified by law were discussed, & only matters identified in resolution for closed meeting discussed. A member who disagrees must state reason prior to vote. 46

47. S OME BASES FOR CLOSED MEETING : Personnel matters of individuals. Specific legal matters/litigation requiring counsels advice. Acquisition/disposition of property for public purposes where negotiation affected. Unannounced economic development prospects. 47

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49. All records must be disclosed unless specifically exempted. (Including e-mails and voicemails.) 49

50. E XCEPTIONS : Exempted material generally can be released at the option of the government. The burden of proof is on the public body to prove an exception. 50

51. Always Consult your attorney. There are legal implications to releasing or not releasing certain documents 51

52. E XAMPLES OF E XCEPTIONS : complaints of civil zoning and building code violations working papers of the Governor, county executive or city or county manager proprietary information attorney/client advice records compiled for use in litigation or active administrative investigation reports prepared for closed meeting unless those reports are the comments of a public meeting 52

53. W HO CAN MAKE REQUESTS : Any citizen of the Commonwealth Any radio or television station broadcasting in or into the Commonwealth Any newspaper with circulation in the Commonwealth 53

54. W HAT IS THE REQUEST ? Request need not be in writing or reference FOIA. Can require that the request be made with reasonable specificity 54

55. R ESPONSE R EQUIREMENTS - T IME Within 5 working days. Can extend for additional 7 working days by written notice: practically impossible to meet the deadline and conditions why. May petition court for more time when request would prevent meeting bodys operational responsibilities. 55

56. R ESPONSE R EQUIREMENTS : Response must provide all documents requested or Must identify: 1)specific statutory basis for denying the request 2) volume and 3)subject matter of the withheld records or portion of records. 56

57. Electronic records must be produced in any medium or format requested if that medium or format is regularly used by the public body. Public body is not required to create and produce records which do not exist. 57

58. R EIMBURSEMENT OF C OSTS : Can charge reasonable actual costs for searching and copying records. Can provide advance estimate of costs; must provide estimate if asked. If costs exceed $200, can require deposit payment not to exceed advance estimate before producing records. Response time is suspended until requestors response to estimated costs and notice to proceed. 58

59. PC Members must be careful not to violate meeting requirements through email. Staff should remind PC, and show email restraint themselves. E LECTRONIC COMMUNICATIONS ( EMAIL ) ARE SUBJECT TO FOIA. 59

60. L IABILITY FOR FAILURE TO COMPLY : Civil penalties - $250 to $1000 for first violation; $1000 to $2500 for subsequent violations. Injunction - Court must hear within 7 days or give priority. Attorneys fees & reasonable costs, including costs & reasonable expert witness fees, can be imposed. PC reliance on AGs opinion or court that supports its position can help avoid costs. No penalty imposed when failure to timely respond was not knowing or willful, and when tried to get an extension to fulfill obligations. Burton v. Mann (Loudoun County Cir. Ct. 2008). 60

61. Precautions: Have system to respond to FOIAs timely, coordinated, consistent Understand FOIA request and records it encompasses, ask requestor if you dont Estimate time and cost of responding before start response, if significant If cost estimate exceeds $200, consider asking for advance payment and time extension Review non-routine requests and whether documents are exempt w/ attorney. Letter indicating basis for withholding documents must set forth reason and statute 61

62. V IRGINIA F REEDOM I NFORMATION A DVISORY C OUNCIL COULD HELP Upon request, gives non-binding advisory opinions or guidelines; conducts training. Check with your legal counsel or CAO before contacting. 62

63. YOUR ROLE AS STAFF 63

64. Undoubtedly, you will require information or advice about particular matters that come to your attention. Ask for legal advice as early as possible. 64

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66. C ONCLUSION Greehan, Taves, Pandak & Stoner PLLC www.gtpslaw.com REPRESENTING LOCALITIES ACROSS VIRGINIA 66

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