The Virginia Supreme Court today ruled that the state's Freedom of Information Act does not bar officials from holding unannounced telephone conference meetings that would be illegal if the officials got together in a group.
The 4-to-3 decision, overturning a lower court ruling, was assailed in a dissenting opinion and by members of news media organizations, the American Civil Liberties Union and legislators who said the majority opinion could allow a flood of secret meetings by telephone.
"Anytime a public body wants to do something controversial, they just have to pick up the telephone and they don't have to give notice," said Judy Goldberg, associate director of the Virginia chapter of the American Civil Liberties Union. "If the decision is carried to its logical conclusion, it could make a mockery of the open meetings section of the FOI act."
"Everytime you have a decision like this, it goes against public accountability and open meetings," said Fairfax County Supervisor Audrey Moore.
"It encourages people to be a little less open."
The court, acting on a 1981 case involving the Roanoke city schools, said the law, which requires that public notice be given before any closed meeting permitted by the law, refers only to physical gatherings of state officials and not so-called teleconferences.
Supreme Court Justice Albertis S. Harrison Jr., writing for the majority, said "there is no common-law right of the public or press to attend the meetings of government bodies" and that "it would be a simple matter for the statute to be amended" if the General Assembly wants to include teleconferences. "It cannot be done by judicial fiat."
Justice Richard H. Poff, in a strongly-worded, three-page dissent, said the majority's opinion was "patently inconsistent" with the information act and said it specifically requires that it be "liberally construed." Poff argued that the "courts should construe statutes . . . in the light most favorable to the people. The majority stands this rule on its head."
Poff said he ruling would allow "any public body so inclined (to) discuss and consider all of its public business, whether covered or exempt by the Act, by teleconference and without prior notice to the public."
Del. Ralph L. (Bill) Axselle (D-Henrico), who chaired a legislative study group that concluded last year that teleconference calls were included under the act, said today that he would introduce legislation in January specifically to include such calls.
"I'm quite frankly shocked at the ruling," Axselle said. "It doesn't make sense."
Some Arlington and Alexandria officials said today that that they had been advised by lawyers that the law did not cover telephone calls and said they had been perplexed by that logic. "We've laughed about it for years because it was all right to have three to five people talking on the phone, but not in the same room," said Arlington County Board Chairman Ellen M. Bozman. "But, that's the vagaries of the law."
Alexandria City Councilman Carlyle Ring said he had objected two years ago to a telephone survey of the council on a proposed state law, but was told his objections were off base because the calls were not covered by the act.
The case before the Virginia court today involved efforts by the Roanoke newspapers to force members of the Roanoke School Board to disclose what they discussed when they held a telephone conference in February, 1981, over the naming of a new school superintendent.
Board chairman James A. Allison said today he made the call to the other six members of the board "because time was short and we needed to make a decision."
The board took no formal action during the call which included a discussion about hiring Frank Tota, a Rochester, N.Y., school official who became superintendent in July that year.
Forrest M. Landon, executive editor of the Roanoke Times & News-World, said his paper sued after learning of the unannounced call. Circuit Court Judge Ernest W. Ballou sided with the newspapers, ruling in March, 1981, that the school board had violated the act by holding an unannounced meeting.
Landon said he doubted the newspaper would appeal today's ruling to the U.S. Supreme Court. "I would hope the General Assembly will plug what four members of the court say is a loophole," he said.
The executive director the Virginia Press Association said the ruling came as a surprise. "I know Virginia publishers were surprised. It's safe to say the press association will support the effort to amend the law," Ray Carlsen said.
In the majority ruling, Harrison said the act specifically defines "meeting" as anytime a government body is "sitting as a body or entity or as an informal assemblage."
He said that "the physical presence of the participants is essential. A telephone conference does not qualify."