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Norfolk — Is Costco’s expansion a coronavirus-related emergency matter? Is funding a piece of public art an essential city service during the pandemic?
Before the coronavirus and the resulting quarantine measures brought public life in Virginia to a stuttering halt, state law meant Norfolk’s City Council had to hold open, in-person public meetings to consider these kinds of items to ensure transparency and accountability.
But Gov. Ralph Northam’s emergency order meant to slow the virus’ spread opened the door for cities to have virtual meetings to deal with emergency matters so they could avoid assembling in person and possibly endangering themselves or others.
That leeway came with a long list of asterisks, courtesy of state Attorney General Mark Herring. In a written opinion, he advised that localities need to be careful and judicious in their use of virtual meetings, lest they violate the spirit of Virginia’s open meetings law, a decades-old measure meant to ensure the public could look their policymakers in the eye as government made decisions that affected the citizens.
The new reality made public officials face a question: What is essential? Can Norfolk consider routine zoning requests and conditional use permits via virtual meetings while most of the wider world is shuttered?
The city’s top legal adviser says they can.
“You might think a (permit) for the sale of alcohol is not really a big deal, but in the eye of the beholder, to them, it is (essential),” City Attorney Bernard Pishko said in a phone interview. “I am taking into consideration, heavily influenced, not by how it impacts the city as a whole, but the participant, the small business.”
That seems to conflict with the guidance from the state attorney general, who advises strictly limiting the bills taken up in such virtual meetings, which aren’t allowed under normal circumstances.
“If the city attorney, who is our lawyer, is giving us the legal advice that this is proper to be before the council, that’s what we’re going to do," Norfolk Mayor Kenny Alexander said in an interview.
Some items have been deemed time-sensitive, Alexander said, while others have applicants who have asked the city to move ahead with the items.
Meeting during a pandemic
Many localities in the state have moved to virtual meetings since Northam issued his emergency order in March, but they have largely limited their scope. In Virginia Beach, the city council has held two virtual meetings, and every item on the agendas was explicitly tied to dealing with the coronavirus emergency and its direct effects on the community.
In his opinion, Herring said public bodies can legally hold electronic meetings during a state of emergency declared by the governor, but only if it’s unsafe for them to meet physically and “the purpose of the meeting is to address the emergency.”
The attorney general added that public bodies can “meet electronically to make decisions that must be made immediately and where failure to do so could result in irrevocable public harm.”
Each public body has to decide whether a given item fits that standard, but Herring warned there must be limits, lest the entire purpose of the open-meetings law be made moot.
“What is clear, however, is that the General Assembly did not intend to permit public bodies to handle all business through electronic communication means, even during a declared emergency,” Herring wrote.
The emergency order also allows local governments to adopt a plan for “continuity of government.” The order and state code don’t define that term, but in his opinion, Herring notes it typically means ways governments "ensure the continuation of essential functions during an emergency.”
Norfolk’s city council passed a continuity plan to enable virtual meetings on March 24. Days later, Norfolk’s Planning Commission held a virtual meeting where it delayed several things but considered two routine items — a residential rezoning and a permit required to allow Costco to expand.
Chairman Earl Fraley started the meeting by saying that they were there to “take actions to address the current emergency.” But the items voted on were much like what the commission handles in normal times.
Their rationale for how these two items were essential to addressing the coronavirus outbreak?
That delaying the rezoning for a property where two houses are under construction “will only worsen the negative impact on economic activity” and could risk “damage to persons or property.” And that Costco’s expansion — of an already-open store — was urgent because it sells food and other essential items and delay “will only worsen negative effects” of the pandemic.
Both items were unanimously recommended for approval by the planning commission.
‘Anything we can do’
Now, the City Council plans to hold its first virtual meeting, with an agenda full of items that don’t seem to have a clear connection to the city’s response to the coronavirus — including that Costco expansion.
The attorney general’s office declined to weigh in on whether such a vote constitutes “addressing the emergency,” instead referring a reporter to the city attorney.
Pishko said in a series of emails and a phone interview that the city basically has the latitude to deem anything essential if someone affected by it — the restaurant applying for a permit, for example — would believe it to be essential.
“If your life’s investment were in a business that needed a (permit) to operate, you would believe it essential to get the (permit) and I would agree,” Pishko wrote, adding later, “At the end of this crisis, I would prefer to have conducted business that might have been delayed over failing to do business essential to some one.”
In the interview, he made a broader economic argument that “anything the Norfolk government can do to keep people working” could be considered essential: “I think the very worst thing for government to do right now is contract … during the pandemic, prior to the depression, anything we can do to stimulate business should be done.”
This extends to, for instance, accepting a donation for and authorizing the construction of public art at Ocean View Beach Park, which Pishko said could keep artists and fabricators working.
Few limits
Megan Rhyne, a transparency advocate who runs the Virginia Coalition for Open Government, said there’s no real way to stop a government body from voting on whatever it wants during a virtual meeting.
“Whether or not they should talk about any of these matters is something the voters and citizens would have to assess for themselves ... whether the citizens of any given locality believe its appropriate to continue on with items that are not time sensitive or important," she said.
Rhyne said the value of open, public meetings you can attend in person can’t be replaced by watching votes happen online.
“It’s an important gathering place for citizens," she said. “…You think you’re by yourself, but you show up to the meeting … and see this person feels the same way I do, this person thinks differently.”
There are also concerns about access for people who, for instance, don’t have internet access or the ability to watch on television. Pishko conceded that could be an issue with these virtual meetings.
“There may be a group of poor people who may not have the ability to interact electronically, and we should see if we can do something about that,” Pishko said.
But as it stands, the city council appears to be ready to proceed with its routine agenda via virtual meeting.
“There may be problems with it, but ... I’m looking for a balancing. There could also be harm from not conducting the business too," Pishko said. "We’re trying to include as many people as possible, but not omit any work that needs to be done. And there will be a difference of opinion, there always is, on what needs to be done.”
Ryan Murphy, 757-739-8582, ryan.murphy@pilotonline.com
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How to watch and participate
Norfolk’s City Council will hold a virtual meeting starting at 7 p.m. on Tuesday, April 14.
The city says only comments on agenda items are permitted. Agenda items are listed at Norfolk.gov/AgendaCenter.
Those who wish to speak in person will be admitted to the council chambers to speak one at a time.
Those who want to participate by phone can either email ccouncil@norfolk.gov or call 757-664-4253 and provide their name and phone number and the agenda item. A city staffer will call when the item comes up during the meeting and put the caller on speakerphone so the council can hear.
You can also submit comments ahead of time to be read into the record through the same email or phone number.