Virginia open records laws hazy on e-mails

Former Appomattox mayor John Wilson and three of six council members exchanged e-mails during the last year discussing upcoming votes related to water issues.

Documents released through a Freedom of Information request from two town residents show that in one instance, Wilson e-mailed three council members advising them to rescind a vote on an issue that passed when now-former council member Steve Lawson was absent.

Acting director of the Virginia Open Government Council Megan Rhyne said that according to a state Supreme Court ruling, e-mail communications between council members is not a violation of open records laws.

But this type of communication between elected officials is “not living up to the spirit of FOI” because these discussions are conducted through e-mail and not in the open, she said.

“We understand why (the Supreme Court) came to the conclusion they did, but at the same time this is exactly what we’re worrying about,” Rhyne said.

The open government council is urging legislators to consider that this sort of communication could constitute a meeting, Rhyne said.

Current Virginia law requires that board members be physically assembled to conduct a meeting.

However, the code notes that members can separately contact each other “for the purpose of ascertaining a member’s position with respect to the transaction of public business.” During the period when the e-mails were exchanged, Wilson consistently opposed a proposal to bring a public water line into the town, connecting with Campbell County.

The Town Council voted to lift the town’s moratorium on adding new water connections to out-of-town users during the Feb. 11 meeting, with all members present voting yes. An additional move to hold a meeting with Appomattox County officials to discuss the proposed water line also carried that day.

“The Council’s decision to lift the moratorium on out of town connections and the meeting with the County can be rescinded on a “Motion to Rescind” by Jennifer, seconded by Plicky,” Wilson wrote in a Feb. 15 letter e-mailed to council members Jennifer Jamerson-Scruggs, John T. “Plicky” Williams and Lawson.

“If Steve will agree to vote to rescind, the matter at worst would be a tie and I would vote with you,” Wilson wrote.

Council meeting minutes show a rescinding vote replacing the moratorium on new water connections occurred as Wilson stated in his e-mail. The move did not rescind the vote for a county meeting. The moratorium was lifted a second time with a full vote several weeks after the rescinding votes, minutes show.

Wilson urged council members to introduce the rescinding vote in at least two additional e-mails, records show.

“The three of you can rescind the two issues passed in your absence if you wish to and cooperate with each other,” Wilson wrote on Feb. 22.

In a telephone interview Thursday, Wilson said, “If it turns out the things that actually happened were what I recommended, I suspect it was an independent decision of the council member.”

“I do not control anybody. I did have to responsibility to recommending as well as the right to do it as the chief executive officer and mayor of the town, but I never at any time have had the ability to predict what anybody would do, so I would say it’s a coincidence.”

Williams and Jamerson-Scruggs would not comment on the matter. Lawson said he often received e-mails from Wilson, but they “didn’t influence my vote on anything. John has the right to e-mail anything.”

In response to questions about FOI law, Jamerson-Scruggs said public officials needed to maintain openness, “but on the flipside, when you are in public office, you have to communicate. You have to discuss the issues. If you don’t, you never get anything accomplished.”