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.

The Virginia

CONFLICT OF INTERESTS ACT & ETHICS

and FREEDOM OF INFORMATION ACT

PRACTICALLY SPEAKING2013 CPEAV PLANNING AND ZONING SEMINAR

Sharon E. PandakGreehan, Taves, Pandak & Stoner PLLC

www.gtpslaw.com 1

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

2

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

PREMISES OF COIA:

1. Don’t take bribes or use influence for financial gain.

Don’t participate in prohibited contracts. 4

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

BUT…

The official or employee must still FILE a DISCLOSURE FORM

EVERY YEARon January

15th

(Some officials and staff are required to make additional disclosures)

6

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

7

THE LINCHPIN OF COIA :

“Personal Interest” of an official or employee =

8

“PERSONAL INTEREST” 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

WHAT MUST BE DISCLOSED ANNUALLY?

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

ADDITIONAL EXAMPLES:

- Payments for representation by the officer or employee or their associates of more than $1000

- Payments for services from businesses which operate in Virginia

ADDITIONAL EXAMPLES:

- Payments for Talks, Meetings, Publications

…. of more than $200 each

12

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

14

INFORMATION WHICH CAN BE EXCLUDED:

Personal business entertainment

Gifts from a relative or personal friend

Campaign contributions reported pursuant to election law

15

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

16

3. If your personal interest is the only interest,

you will likely have to disqualify yourself from acting.

17

> $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;

“PERSONAL INTEREST” OF AN OFFICIAL OR EMPLOYEE =

18

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.

“PERSONAL INTEREST” OF AN OFFICIAL OR EMPLOYEE =

19

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 officer’s or employee’s financial

support.

20

IN 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

22

When in doubt…

23

or

have your County Attorney

contact your Commonwealth’s

Attorney(coordination is good)

Call

. . . contact your County Attorney, or

call your Commonwealth’s Attorney

24

SO YOU SO YOU HAVE AHAVE A

CONFLICT CONFLICT

…… 25

WILL YOU DARE TO ASK WILL YOU DARE TO ASK BEFORE IT IS TOO LATE?BEFORE IT IS TOO LATE?

1-800-County Attorney1-800-County Attorney1-800-Commonwealth’s Attorney1-800-Commonwealth’s Attorney

26

1-800-County Attorney1-800-County Attorney1-800-Commonwealth’s Attorney1-800-Commonwealth’s Attorney

Avoid Avoid penalties, embarrassment, penalties, embarrassment, loss of office. loss of office.

Call Call earlyearly and and as oftenas often as necessary. as necessary.

Contact: Contact: Call or Write Call or Write

27

Enhance citizen confidence in Government . . .

Avoid being the bad news

28

29

30

FOIA

Sections 2.2-3700 et seq., VA Code Ann.

Open Government

31

“Public officials shall read and familiarize themselves with the Act.”

§2.2-3702 VA Code Ann.

32

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

33

FOIA insures ready access to records and free entry to meetings

of Public Bodies.

34

“PUBLIC BODIES”:

- 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

OPEN MEETING REQUIREMENTS

36

WHAT IS A MEETING?

Gathering together, formally or informally, of 3 or more members. It doesn’t 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

MEETING REQUIREMENTS:

Public notice - Posting - prominent public

location where notices posted; - In Clerk’s office at least 3 working

days before meeting (electronic notice encouraged) except for special or emergency meetings.

- Provided to any citizen who asks.

38

MEETING REQUIREMENTS CONT’D: Agenda packages available for

public inspection when they are given to the public body.

39

MEETING REQUIREMENTS CONT’D: Public must be permitted to

attend unless a closed meeting is held.

Can’t prohibit photographing, filming or recording; can have rules to prevent interference

40

Minutes must be taken.

No secret ballots.

MEETING REQUIREMENTS CONT’D:

41

NOT A “MEETING”:

Attending a conference Chance social gathering, even if

public business discussed if it wasn’t purpose of gathering (gathering not pre-arranged for discussion)

Public forums, candidate appearances & debates

Gatherings of public employees

42

MEMBERS OF PUBLIC BODIES CAN ONLY ACT IN

A PUBLIC MEETING

But… …can do individual polling to ascertain a member’s position

43

ELECTRONIC MEETINGS ARE LIMITED 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

CLOSED MEETING – 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

CLOSED MEETING DETAILS: 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

SOME BASES FOR CLOSED MEETING: Personnel matters of individuals. Specific legal matters/litigation

requiring counsel’s advice. Acquisition/disposition of property

for public purposes where negotiation affected.

Unannounced economic development prospects.

47

48

All records must be disclosed unless specifically exempted.

(Including e-mails and voicemails.)

49

EXCEPTIONS:

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

Always Consult your attorney.

There are legal implications to releasing or not releasing certain documents

51

EXAMPLES OF EXCEPTIONS:

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

WHO 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

WHAT IS THE REQUEST?

Request need not be in writing or reference FOIA.

Can require that the request be made with reasonable specificity

54

RESPONSE REQUIREMENTS - TIME 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 body’s operational responsibilities.

55

RESPONSE REQUIREMENTS:

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

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

REIMBURSEMENT OF COSTS: 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 requestor’s response to estimated costs and notice to proceed.

58

PC Members must be careful not to violate “meeting” requirements through email.

Staff should remind PC, and show email restraint themselves.

ELECTRONIC COMMUNICATIONS (EMAIL) ARE SUBJECT TO FOIA.

59

LIABILITY 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.

Attorney’s fees & reasonable costs, including costs & reasonable expert witness fees, can be imposed.

PC reliance on AG’s 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

Precautions: Have system to respond to FOIAs

timely, coordinated, consistent Understand FOIA request and records it

encompasses, ask requestor if you don’t 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

VIRGINIA FREEDOM INFORMATION ADVISORY COUNCIL COULD HELP  Upon request, gives non-binding

advisory opinions or guidelines; conducts training.

Check with your legal counsel or CAO before contacting.

62

YOUR ROLE AS STAFF

63

Undoubtedly, you will require information or advice about particular matters that come to your attention.

Ask for legal advice as early as possible.

64

65

CONCLUSION

Greehan, Taves, Pandak & Stoner PLLC

www.gtpslaw.com

REPRESENTING LOCALITIES ACROSS VIRGINIA

66

67