Arlington leaders had their worries addressed, but concerns expressed by leaders in Fairfax County helped to kill, for 2025, a bill aimed at ensuring transparency in local-government decisionmaking.
The measure, patroned by Virginia Sen. Adam Ebbin (D-39), had sailed through the upper chamber unanimously on Jan. 31.
But a subcommittee of the House Committee on General Laws voted 7-0 on Tuesday (Feb. 11) to refer to proposal to the Virginia Freedom of Information Advisory Council for review and comment.
The action killed the bill’s prospects this session.
“I feel we should slow this down just a bit,” said Del. Marcus Simon (D-13), who sits on the subcommittee and also chairs the FOIA advisory council.
“I like what you’re trying to do — I just don’t want to do it in a hurry,” Simon told Ebbin.
Perhaps the most significant change in the bill would have been to require any measures voted on by elected bodies, such as the Arlington County Board, to have been posted in advance of the meeting.
“After the meeting starts, you can add an item [to the agenda] to be considered and discussed,” but it could not be acted on until a later date, Ebbin said at the subcommittee hearing.
There were exceptions in the language for matters deemed “time-sensitive,” but that phrasing brought up concerns.
That wording was “just too vague,” said Jason Morgan, an attorney and parliamentarian who testified at the hearing.
He suggested the vagueness could create confusion and opportunities for abuse by local officials.
Megan Rhyne, executive director of the Virginia Coalition for Open Government, told legislators the original wording had made reference to “emergency” actions, but that word itself was seen as problematic by those crafting the measure.
The Virginia Coalition for Open Government worked with Ebbin and other organizations to develop and refine the legislation. In the end, groups as varied as the Virginia Municipal League and Virginia Press Association supported it.
But after passage in the Senate, Arlington officials voiced concerns about elements of the bill’s provisions related to actions taken in executive sessions.
Those worries seemed to have been addressed by language changes agreed to by Ebbin, and proved a “workable solution,” Rhyne said. Arlington officials ultimately took a neutral position on the bill.
But Fairfax County government officials opposed the legislation in its entirety.
Acknowledging that Ebbin had “listened to our concerns,” Fairfax County’s top lobbyist, Claudia Arko, told legislators that the measure made county leaders uneasy.
Though “meant to be flexible,” the bill’s language could prove legally problematic for localities if any actions taken under its authority later were challenged in court, Arko said.
“It gives us a lot of concern about unintended consequences,” Arko said.
She pointed to a Virginia Supreme Court ruling in 2023 invalidating Fairfax County’s massive zoning-ordinance rewrite.
Justices ruled that county officials have violated sections of open-meetings laws during the adoption process, which took place in 2021 during the Covid crisis.
Fairfax supervisors had to go back, hold new hearings and adopt the package again — a time-consuming process.
Legal-advertising complexities also played a part in the court case over Arlington’s Missing Middle policy. That matter is now headed to the Virginia Court of Appeals.
“There were other similar situations” in jurisdictions across Virginia, Arko noted. Local-government leaders remain uneasy about how their actions might later be interpreted by judges, she said.
At the hearing, Arko was the one who first asked that the state FOIA council look at the proposal and come back with recommendations. But legislators going that route was frustrating to Rhyne, who told ARLnow:
“I am disappointed that this is going to the FOIA Council, because opposition from Fairfax did not get raised until this past Friday after the bill went through the Senate unanimously. Then, we addressed Arlington‘s concerns in the substitute, but they didn’t support the bill. I wish we could have delivered some protection against last-minute actions this year, instead of waiting another year during the FOIA Council study.”
