Transcript Slide 1

The Virginia
CONFLICT OF INTERESTS ACT & ETHICS
and FREEDOM OF INFORMATION ACT
PRACTICALLY SPEAKING
2013 CPEAV PLANNING AND ZONING SEMINAR
Sharon E. Pandak
Greehan, Taves, Pandak & Stoner PLLC
www.gtpslaw.com
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ADAPTED FROM PRESENTATIONS BY
SHARON PANDAK TO THE
VIRGINIA ASSOCIATION OF COUNTIES &
LOCAL GOVERNMENT ATTORNEYS OF
VIRGINIA
With permission from VACo and the
amazing Phyllis Errico, General Counsel
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COIA
Sections 2.2-3100 et seq., VA Code Ann.,
is real
You violate it at your ethical, personal,
legal, financial, and elective PERIL.
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PREMISES OF COIA:
1.
Don’t take bribes or use influence
for financial gain.
Don’t participate in prohibited contracts.
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LOCAL OFFICIALS
AND EMPOLYEES MUST:
• File a Disclosure Form of
PERSONAL INTERESTS and other
information (transaction based)
BUT…
 The official or employee must still FILE a
DISCLOSURE FORM
EVERY YEAR
on January 15th
(Some officials and staff are required to make additional
disclosures)
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THE CLERK TO THE BOARD
MAY REMIND YOU
BUT the Clerk is not your mother –
The Responsibility is Yours
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THE LINCHPIN OF COIA :
“Personal Interest” of an official or
employee =
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“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)
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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
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0
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
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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
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INTERLUDE EXAMPLE
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INFORMATION WHICH CAN BE EXCLUDED:
 Personal business entertainment
 Gifts from a relative or personal friend
 Campaign contributions reported pursuant to
election law
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2. If you have a personal interest, you
may have to disclose before acting.
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3. If your personal interest
is the only interest,
you will likely have to
disqualify yourself from
acting.
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“PERSONAL INTEREST” OF AN OFFICIAL OR
EMPLOYEE =

> $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;
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“PERSONAL INTEREST” OF AN OFFICIAL OR
EMPLOYEE =

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.
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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.
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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
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IF THE PERSONAL INTEREST IS THE
SAME AS THAT OF A GROUP –
DEPENDING ON CIRCUMSTANCES, MAY
NOT HAVE TO DISCLOSE.
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When in doubt…
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. . . contact your County Attorney, or
call your Commonwealth’s Attorney
or
Call
have your County Attorney
contact your
Commonwealth’s Attorney
(coordination is good)
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SO YOU HAVE
A
CONFLICT …
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WILL YOU DARE TO ASK
BEFORE IT IS TOO LATE?
1-800-County Attorney
1-800-Commonwealth’s Attorney
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Contact:
Call or Write
1-800-County Attorney
1-800-Commonwealth’s Attorney
Avoid penalties, embarrassment,
loss of office.
Call early and as often as necessary.
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Enhance citizen confidence
in Government . . .
Avoid being the bad news
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COIA SETS MINIMUM
STANDARDS. IT IS NOT AN
ETHICS CODE.
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QUESTIONS/DISCUSSION
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FOIA
Sections 2.2-3700 et seq., VA Code Ann.
Open Government
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“Public officials
shall read and
familiarize
themselves with
the Act.”
§2.2-3702 VA Code Ann.
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The overall policy of the FOIA is to insure
that public business is done in public.
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FOIA insures ready access to records
and free entry to meetings of Public
Bodies.
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“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
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OPEN MEETING REQUIREMENTS
In the context of Planning Commissions
but relate to all “public Bodies”
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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.
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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.
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MEETING REQUIREMENTS CONT’D:
 Agenda packages available for public
inspection when they are given to the
public body.
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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
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MEETING REQUIREMENTS CONT’D:
 Minutes must be taken.
 No secret ballots.
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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
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MEMBERS OF PUBLIC BODIES CAN
ONLY ACT IN A PUBLIC MEETING
But…
…can do individual polling to ascertain a
member’s position
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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.
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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.
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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.
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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.
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REQUESTS FOR PUBLIC
RECORDS
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All records must be disclosed unless
specifically exempted.
(Including e-mails and voicemails.)
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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.
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Always Consult
your attorney.
There are legal
implications to
releasing or not
releasing certain
documents
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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
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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
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WHAT IS THE REQUEST?
 Request need not be in
writing or reference FOIA.
 Can require that the
request be made with
reasonable specificity
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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.
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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.
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 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.
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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.
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ELECTRONIC COMMUNICATIONS
(EMAIL) ARE SUBJECT TO FOIA.
 PC Members must be careful not to
violate “meeting” requirements through
email.
 Staff should remind PC, and show email
restraint themselves.
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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).
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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
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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.
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YOUR ROLE AS STAFF
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Undoubtedly, you will require
information or advice about particular
matters that come to your attention.
Ask for legal advice as early as
possible.
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QUESTIONS/DISCUSSION
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CONCLUSION
Greehan, Taves, Pandak & Stoner PLLC
www.gtpslaw.com
REPRESENTING LOCALITIES
ACROSS VIRGINIA
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