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AGENDA
WORK SESSION
FREDERICK COUNTY BOARD OF SUPERVISORS
MONDAY, NOVEMBER 3, 2014
11:30 A.M.
BOARD ROOM, COUNTY ADMINISTRATION BUILDING
107 N. KENT STREET, WINCHESTER, VIRGINIA
I. CALL TO ORDER
II. VIRGINIA COOPERATIVE EXTENSION PRESENTATION RE: HOUSEHOLD
DRINKING WATER QUALITY IN FREDERICK COUNTY, VA (See Attached)
III. DISCUSSION OF LANDSCAPING REQUIREMENTS — BUSINESS FRIENDLY
COMMITTEE RECOMMENDATIONS (See Attached)
IV. UPDATE ON CHANGES TO CONFLICT OF INTEREST ACT (See Attached)
V. ADJOURN
Virginia Cooperative Extension
A rm Virginia Tech Virginia State University
www.ext.vt.edu
Household Water Quality in Frederick County, Virginia
JUNE 2013
VIRGINIA HOUSEHOLD WATER QUALITY PROGRAM
Frederick Program Overview
In June 2013, residents from Frederick County
participated in a drinking water testing clinic sponsored
by the local Virginia Cooperative Extension (VCE) office
and the Virginia Household Water Quality Program. Clinic
participants received a confidential water sample
analysis and attended educational meetings where they
learned how to interpret their water test results and
address potential issues. According to survey data
collected, 78 samples were tested, serving 189
individuals. The most common household water quality
issues identified were hardness, manganese, lead and
sodium, as well as the presence of E. coli and total
coliform bacteria. The figure found at the end of this
report shows these common water quality issues along
with basic information on standards, causes, and
treatment options.
Background
More than 1.7 million Virginians use private water
supplies such as wells, springs, and cisterns. The Virginia
Household Water Quality Program (VAHWQP) began in
1989 with the purpose of improving the water quality
and health of Virginians who are reliant on private water
supplies. Since then drinking water clinics have been
conducted in 90 counties across Virginia and samples
analyzed from more than 16,000 households. In 2007,
the Virginia Master Well Owner Network ( VAMWON)
was formed to support the VAHWQP. Virginia
Cooperative Extension agents and volunteers participate
in a one -day VAMWON training workshop that covers
private water system maintenance and protection,
routine water testing, and water treatment basics. They
are then able to educate others about their private water
supplies. More information about these programs may
be found at our website: www.wellwater.bse.vt.edu
Private water sources, such as wells and springs, are
not regulated by the U.S. Environmental Protection
Agency (EPA). Although private well construction
regulations exist in Virginia, private water supply owners
are responsible for maintaining their water systems, for
monitoring water quality, and for taking appropriate
steps to address problems should they arise. The EPA
Safe Drinking Water Standards are beneficial guidelines
for assessing water quality. Primary drinking water
standards apply to contaminants that can adversely
affect health and are legally enforceable for public water
systems. Secondary drinking water standards are non -
regulatory guidelines for contaminants that may cause
nuisance problems such as bad taste, foul odor, or
staining. Testing water annually, and routinely inspecting
and maintaining a water supply system will help keep
water safe.
Understanding Household Water Quality
Water quality refers to the chemical, physical, and
biological characteristics of water, usually related to a
specific use for the water. It is assumed that household
water is used for common household purposes like
drinking, cooking, washing, and showering. Household
water quality is affected by four primary factors: geology,
land use, well construction and location, and plumbing
components and water treatment. Water is a great
solvent, dissolving much of what it comes in contact
with. Because water is a great solvent, quality of
groundwater is influenced by the type of rocks and
sediment it is exposed to as it travels from the surface
(where it falls as rain) to the water table. For example,
water that comes from areas with limestone is often high
in minerals like calcium and magnesium. Activities on
the land surface can affect groundwater quality as well.
For example, use of fertilizer on lawns or agricultural
fields can contribute nutrients such as nitrogen to
groundwater. The location of a well or spring is also
important; it should be located away from possible
sources of contamination. Wells should be constructed
properly with a sealed cap, intact casing, and grout
material around the casing to prevent surface water from
entering the well. Finally, plumbing materials used in
homes, as well as water treatment devices, affect
household water quality. Some household water
contains lead or copper, which can be leached from
solder in pipes or plumbing components. Water
treatment devices can also affect water quality by
removing certain contaminants or adding others. For
example, a water softener works by removing hardness
2014 Virginia Polytechnic Institute and State University 3000 -0000
Virginia Cooperative Extension programs and employment are open to all, regardless of race, color, national origin, sex, religion, age, disability, political beliefs, sexual orientation, genetic information, marital, family, or veteran status,
or any other basis protected by law. An equal opportunity/affirmative action employer. Issued in furtherance of Cooperative Extension work, Virginia Polytechnic Institute and State University, Virginia State University, and the U.S.
Department of Agriculture cooperating. Edwin J. Jones, Director, Virginia Cooperative Extension, Virginia Tech, Blacksburg; Jewel E. Hairston, Administrator, 1890 Extension Program, Virginia State, Petersburg.
(calcium and magnesium) and replacing it with sodium
via ion exchange. Consideration of all of the factors that
affect water quality is important when understanding
water test results and ways to address problems with
water quality.
Drinking Water Clinic Process
Kickoff meeting: Any resident relying on a well,
spring, or cistern was welcome to participate in the clinic.
Participants were shown a brief presentation that
addressed common water quality issues in the area, an
introduction to parameters included in the analysis, and
instructions for collecting their sample. Sample kits with
sampling instructions and a short questionnaire were
distributed. The questionnaire included questions about
characteristics of the water supply (e.g. age, depth, and
location, plumbing materials, existing water treatment),
and any perceived water quality issues. Basic
demographic information about the household was
asked, including household income, age and education
level of residents, and whether or not household
members drink the water from the private water supply
being tested.
Participants dropped off their samples and completed
questionnaires at a predetermined location on a specific
date and time.
Sample collection: Following collection at a central
location, all samples were iced in coolers and promptly
transported to Virginia Tech for analysis.
Analysis: Samples were analyzed for the following
water quality parameters: iron, manganese, nitrate,
fluoride, sulfate, pH, total dissolved solids (TDS),
hardness, sodium, copper, lead, arsenic, total coliform
bacteria, and E. coli. General water chemistry and
bacteriological analyses were performed by the
Department of Biological Systems Engineering Water
Quality Laboratory and Civil and Environmental
Engineering Department at Virginia Tech. All water
quality analyses were performed using standard
analytical procedures.
The EPA Safe Drinking Water Standards, which are
enforced for public water systems in the U.S., were used
as guidelines for this program. Water quality parameters
not within range of these guidelines were identified on
each water sample report. Reports were prepared and
sealed in envelopes for confidential distribution to clinic
participants.
Interpretation meeting: Participants received their
confidential water test reports, and VCE personnel made
a presentation providing a general explanation of what
the numbers on the reports indicated. In addition,
general tips for maintenance and care of private water
supply systems, routine water quality testing
recommendations, and possible options for correcting
water problems were discussed. Participants were
encouraged to ask questions and discuss findings either
with the rest of the group or one -on -one with VCE
personnel after the meeting.
Findings and Results
Profile of Household Water
All of the participants in the Frederick County clinic
indicated their water supply was a well. Eighty -seven
percent of these were drilled. Participants also described
the type of material used for water distribution in each
home. The two most common pipe materials in Frederick
County were copper (76.9 %) and plastic (50 %). Many
homes were reported as having more than one type of
plumbing material, which is quite common.
To properly evaluate the quality of water supplies in
relation to the sampling point, participants were asked if
their water systems had water treatment devices, and if
so, the type of device. Eighty -one percent of Frederick
participants reported at least one treatment device
installed. The most commonly reported treatment device
was a softener (65.4 %) followed by a sediment filter,
installed by 16.7% of participants.
Participants' Perceptions of Household Water Quality
Participants were asked whether they perceived their
water supply to have any of the following characteristics:
(1) corrosive to pipes or plumbing fixtures; (2) unpleasant
taste; (3) objectionable odor; (4) unnatural color or
appearance; (5) floating, suspended, or settled particles
in the water; and (6) staining of plumbing fixtures,
cooking appliances /utensils, or laundry.
Staining problems were reported by 47.4% of clinic
participants in Frederick County. The most commonly
reported description was "rusty" (33.3 %), followed by
"white /chalky" (10.3 %). Twenty -eight percent of
participants reported objectionable odors in their water,
most describing a "rotten egg" smell (19.2 %). Seventeen
percent reported an unnatural appearance of their
water, and about 21.8% reported particles in their water,
most describing "white flakes" (12.8 %).
Bacteriological Analysis
Private water supply systems can become
contaminated with potentially harmful bacteria and
other microorganisms, which can cause short -term
gastrointestinal disorders, such as cramps and diarrhea.
Other diseases that may be contracted from drinking
contaminated water include viral hepatitis A, salmonella,
dysentery, typhoid fever, and cholera.
Microbiological contamination of a water supply is
typically detected with a test for total coliform bacteria.
Ard- Virginia Cooperative Extension
Virginia Tech • Virginia State University
www.ext.vt.edu
Coliform bacteria are present in the digestive systems of
humans and animals and can be found in the soil and in
decaying vegetation. While coliform bacteria do not
cause disease, they are indicators of the possible
presence of disease causing bacteria, so detecting them
in drinking water warrants additional testing.
Positive total coliform bacteria tests are often
confirmed with a retest. If coliform bacteria are present
in a water supply, possible pathways or sources include:
(1) improper well location or inadequate construction or
maintenance (e.g. well too close to septic, well not fitted
with sanitary cap); (2) contamination of the household
plumbing system (e.g. contaminated faucet or water
heater); and (3) contamination of the groundwater itself
(perhaps due to surface water entering groundwater).
Finding total coliform bacteria in a water sample
triggers testing for the presence of E. coli bacteria. If E.
coli are present, it indicates that human or animal waste
is entering the water supply.
Of the 78 samples collected in Frederick County,
55.1% tested positive (present) for total coliform
bacteria. Subsequent E. coli analyses for all of these
samples showed that 24.4 of the samples tested positive
for E. coli bacteria.
Program participants whose water tested positive
(present) for total coliform bacteria were encouraged to
retest their water to rule out possible cross
contamination, and were given information regarding
emergency disinfection, well improvements, and septic
system maintenance. Any participant with a sample that
tested positive for E. coli, was encouraged to take more
immediate action, such as boiling water or using another
source of water known to be safe until the source of
contamination could be addressed and the water supply
system disinfected. After taking corrective action,
participants were advised to have their water retested
for total coliform, followed by testing for E. coli if
needed. In addition, participants were provided with
resources that discussed continuous disinfection
treatment options.
The table found at the end of this report shows the
general water chemistry and bacteriological analysis
contaminant levels for the Frederick County drinking
water testing clinic participants.
Chemical Analysis
As mentioned previously, all samples were tested for
the following parameters: iron, manganese, nitrate,
fluoride, sulfate, pH, total dissolved solids (TDS),
hardness, sodium, lead, arsenic, and copper. Selected
parameters of interest for the Frederick drinking water
testing clinic samples are discussed below.
Lead
Lead is not commonly found in groundwater, but may
enter household water as it travels through plumbing
materials. Lead can cause irreversible damage to the
brain, kidneys, nervous system, and blood cells, and is a
cumulative poison, meaning that it can accumulate in the
body until it reaches toxic levels. Young children are most
susceptible, and mental and physical development can
be irreversibly stunted by lead poisoning. Lead may be
found in household water from homes built prior to 1930
with lead pipes, prior to 1986 with lead solder, or in
newer homes with "lead- free" brass components, which
may legally contain up to 8% lead. The EPA limit for lead
in public drinking water is 0 mg /L, and the health action
limit is 0.015 mg /L. In these drinking water clinics,
participants collect two samples from their taps: 1) a first
draw sample, which is drawn first thing in the morning
after the water hasn't been used in at least 6 hours, and
therefore has a substantial contact time with the
plumbing and 2) a flushed sample, taken after water has
been run for 5 minutes, and therefore has not had
significant contact with pipes. If lead is present above
0.015 mg /L in the first draw sample, but is not detected
in the flushed sample, simply running the water for a few
minutes prior to collecting water for drinking may
address the problem. Alternatively, addressing the
corrosiveness (acidity) of your water by installing an acid
neutralizing filter may solve the problem. Reverse
osmosis systems or activated carbon filters (labeled to
remove lead) can remove it from your water. In the
Frederick group, 17.9% of first draw samples exceeded
0.015 mg /L lead. One percent of the flushed samples
exceeded 0.015 mg /L.
Sodium
The EPA recommendation for sodium in drinking
water (20 mg /L) is targeted for the most at -risk segment
of the population, which are those with severe heart or
high -blood pressure problems. The variation in sodium
added to water by softeners is very large (ranging from
around 50 mg /L to above 300 mg /L). Sodium in drinking
water should be considered with respect to sodium
intake in the diet. The average American adult consumes
2000 - 4000 mg of sodium per day. If concerned about
sodium in water, intake should be discussed with a
physician.
Of the 78 Frederick clinic samples, 62.8% exceeded
the EPA recommendation of 20 mg /L. Some of this
sodium could result from sodium naturally present in the
geology (rocks, sediment) where well water originates,
but the primary source of sodium is a water softener.
There are several options for addressing sodium levels in
softened water. Since only water used for washing needs
Arm- Virginia Cooperative Extension
Virginia Tech • Virginia State University www.ext.vt.edu
to be softened, a water treatment specialist can bypass
cold water lines around the softener, softening only the
hot water and reducing the sodium in the cold drinking
water. Another option is using potassium chloride
instead of sodium chloride for the softener, although this
option is more expensive.
Hardness
Hard water contains high levels of calcium and
magnesium ions that dissolve into groundwater while the
water is in contact with limestone and other minerals.
Hard water is a nuisance and not a health risk.
In Frederick County, 23% of samples were considered
"very hard" (exceeding 180mg /L of hardness). Hard
water is indicated by scale build -up in pipes and on
appliances, decreased cleaning action of soaps and
detergents, and reduced efficiency and lifespan of water
heaters. Ion exchange water softeners are typically used
to remove water hardness.
Manganese
Manganese is a nuisance contaminant and does not
present a health risk. The EPA recommended secondary
maximum contaminant level is 0.05 mg /L. Excessive
manganese concentrations may give water a bitter taste
and can produce black stains on laundry, cooking
utensils, and plumbing fixtures.
Almost 22% of clinic samples tested above 0.05mg /L.
Treatment options for manganese include a water
softener, reverse osmosis, or distillation.
Conclusion
Clinic participants received objective information
about caring for and maintaining their private water
supply systems, and specific advice about addressing any
problems that were identified through the analysis of
their water sample.
References
U.S. Environmental Protection Agency. Drinking Water
Contaminants.
http: / /www.epa.gov /safewater /contaminants /index.htm
1. Accessed online 3/2014.
Virginia Cooperative Extension. Virginia PowerPoint Map.
http: / /www.intra.ext.vt.edu /marketing /maps /powerpoin
t.html Accessed online 3/2014.
Additional Resources
For more information about the water quality
problems described in this document, please refer to our
website. You will find resources for household water
testing and interpretation, water quality problems, and
solutions here: www.wellwater .bse.vt.edu /resources.php
Acknowledgements
Many thanks to the residents of Frederick County
who participated in the drinking water testing clinic.
The Water Quality Laboratory of the Department of
Biological Systems Engineering and Department of Civil
and Environmental Engineering at Virginia Tech were
responsible for water quality analyses, as well as data
management.
This document was prepared by Brian L. Benham,
Associate Professor and Extension Specialist at Virginia
Tech; Erin Ling, Extension Water Quality Program
Coordinator; Jacob Cantor, undergraduate research
assistant at Virginia Tech; Karen Poff and Mark Sutphin,
Virginia Cooperative Extension agents; Sara Robinson,
editorial intern at Virginia Tech.
Arm- Virginia Cooperative Extension
Virginia Tech • Virginia State University
www.ext.vt.edu
Figure 1. Common household water quality issues in Frederick County - 2013
Presence of total coliform bacteria
-Most coliform bacteria do not cause
disease, but presence indicates more
dangerous microorganisms may enter
water supply
-EPA recommends that coliforms should
be absent
•E. coli presence indicates human or
animal waste is entering the water supply
Hardness
•Hardness is calculated from the
magnesium and calcium mineral content
of water; comes from limestone bedrock
-EPA recommends a level of 120 mg /L
or less
-Nuisance contaminant; no health risk
7
Sodium
a EPA recommendation for sodium (20
mg /L) is targeted for those with severe
heart or high -blood pressure problems
• May come from geology or water
softener
Lead
*Can cause irreversible damage to the brain,
kidneys, nervous system, and blood cells.
•Can leave grey stains on sinks, tubs, and
laundry.
•The EPA standard goal for lead is 0 mg /L
with a health action limit of 0.015 mg /L.
Table 1. Water Chemistry and Bacteriological Contaminant Levels for the 2013 Frederick Drinking Water Testing
Clinic
2013 Frederick County
VAHWQP Drinking Water Clinic Results
N = 78 samples
Test
EPA Standard*
Average
Maximum Value
% Exceeding Standard
Iron (mg /L)
0.3
0.152
3.244
10.3
Manganese (mg /L)
0.05
0.05
0.604
21.8
Hardness (mg /L)
180
92.9
471.5
23.1
Sulfate (mg /L)
250
52.7
715
1.3
Fluoride (mg /L)
2.0/4.0
0.19
1.03
0.0
Total Dissolved Solids
500
409
910
35.9
pH
Min 6.5
7.1
6.0 (min)
9.0
Max 8.5
9.6 (max)
1.3
Sodium (mg /L)
20
86.76
441.0
62.8
Nitrate - N (mg /L)
10
1.685
12.826
1.3
Copper -First Draw (mg /L)
1.0/1.3
0.266
3.109
1.3
Copper - Flushed (mg /L)
1.0/1.3
0.033
0.535
0.0
Lead -First Draw (mg /L)
0.015
0.326
24.74
17.9
Lead - Flushed (mg /L)
0.015
0.0
0.026
1.3
Arsenic -First Draw (mg /L)
0.010
0.05
3.849
1.3
Arsenic - Flushed (mg /L)
0.010
0.001
0.005
0.0
Total Coliform Bacteria
0.0
1,002.0
22,749
55.1
E. Coli Bacteria
0.0
16.0
527
24.4
*EPA primary and secondary standards of the Safe Drinking Water Act are used as guidelines for private water supplies
Arm- Virginia Cooperative Extension
Virginia Tech • Virginia State University
www.ext.vt.edu
COUNTY of FREDERICK
Department of Planning and Development
540/ 665 -5651
Fax: 540/ 665 -6395
MEMORANDUM
TO: Frederick County Board of Supervisors
FROM: Candice E. Perkins, AICP, Senior Planner �
SUBJECT: Landscaping Requirements — Business Friendly Recommendations
DATE: October 27, 2014
In October of 2012, the Board of Supervisors formed the Frederick County Business Climate
Assessment Committee (also called the Business Friendly Committee) to evaluate the current
processes and procedures being utilized by the County. The purpose of the effort was to search
for ways that the County could better meet the needs of new and existing businesses in the
community. The Committee's final report was adopted by the Board of Supervisors in July of
2013. One recommendation contained in the report was to review the landscaping
requirements contained in the Zoning Ordinance and the Development Review and Regulations
Committee (DRRC) was tasked with reviewing the current requirements and looking at the
suggested changes.
The Land Use and Development Subcommittee of the Business Friendly Committee
"recommended a complete review and re- evaluation of the Frederick County Buffers and
Landscaping Ordinance to provide a well defined purpose to allow for flexibility in project site
landscaping, tree preservation, and effective development buffers."
Ordinance History
The DRRC first reviewed the landscaping ordinance in September 2013, January 2014 and
February 2014. At these meetings, the DRRC recognized that the buffer and landscaping
sections were recently discussed and amended and the committee felt that the existing
ordinance was appropriate. The DRRC did recommend that the parking lot landscaping
requirements be moved into the main landscaping section.
The Planning Commission discussed the landscaping requirements at their meeting on April 2,
2014. During the citizen comments portion of the meeting, Mr. John Goode, the Chairman of
the Land Use and Development Subcommittee of the Business Friendly Committee, stated his
subcommittee had recommendations on a number of different subjects and the landscape
ordinance was only one item among many. Mr. Goode requested that he be given the
opportunity to attend a DRRC meeting and make a presentation including all of the
recommendations in order to bring things into context and reflect what the subcommittee had
in mind. A Commissioner remarked that of all the localities he conducts landscaping business;
Frederick County is by far one of the simplest and easiest localities to work in. He commented if
one additional step could be taken to save money on site development, it would be to specify
places on site where pavement, curbing, and concrete could be reduced and this would
107 North Kent Street • Winchester, Virginia 22601 -5000
Landscaping Requirements
October 27, 2014
Page 2
significantly drop the cost of site development. A Commissioner was opposed to the
recommendation that a tree committee be formed to review site plans because he believed it
would stall the process; he was not in favor of forming another committee. Considering all of
the landscaping and buffer revisions recently approved, Commissioners agreed with the DRRC
that the existing ordinance was adequate and appropriate. Nevertheless, the majority of
Commissioners were not opposed to having the landscaping requirements go back to the DRRC
and allow Mr. Goode to make a presentation to make certain the DRRC understood what the
subcommittee was trying to get across.
The DRRC again considered the landscaping ordinance at their April 24, 2014 meeting and a
representative from the Business Friendly Committee spoke. The committee requested staff to
look at a proportional upgrade waiver; meaning sites that are proposing minimal upgrades could
request a waiver of the landscaping requirements. The DRRC discussed the revised landscaping
ordinance at their June 26, 2014 meeting. The DRRC was satisfied with the changes and sent the
amendment forward to the Planning Commission for discussion.
The Planning Commission again discussed the landscaping ordinance changes at their August 20,
2014 meeting. A Commissioner on the DRRC stated the revised amendment allows for
landscaping improvements to be proportional to the size of construction and this should address
the concerns raised by the Business Friendly Committee. Referring to Section 165- 802.03 Site
Plan Contents (D)(16), "Any other information determined by the Zoning Administrator
necessary for the review of the minor site plan," the addition of (17), "The Zoning Administrator
may delete any of the above criteria on a minor site plan, if it is not warranted," was suggested.
Staff noted the minor site plan process has been available; however, it simply wasn't codified
and was a common -sense approach. It is now being codified and the flexibility suggested by a
17 condition would be appropriate. Other Commission members agreed. (Commissioners
Crockett and Dunlap were absent.)
At the Board of Supervisors meeting on September 24, 2014, staff presented the DRRC's and
Planning Commission's recommendations on the landscaping ordinance per the
recommendations provided by the Business Friendly Committee. At that meeting, the Board
requested that staff package the history of the landscaping changes and provide the information
to the Board and then schedule a work session to discuss the changes further.
Conclusion
Staff is seeking comments and direction from the Board of Supervisors on this Zoning
Ordinance text amendment. Please contact staff should you have any questions, comments
or additional changes.
Attachments: 1. Business Friendly Initiatives.
2. Letter from John Goode
3. Memo from Scot Marsh (Business Friendly recommendations)
4. Responses from the DRRC /Staff to the recommendations.
5. Existing Landscaping Ordinance with the Business Friendly
recommendations included in text boxes.
6. DRRC and Planning Commission recommended changes.
7. Minutes from the January, February and April DRRC Meetings
CEP /pd
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COUNTY of FREDERICK
John R. Riley, Jr.
County Administrator
5401665 -5666
Fax 5401667 -0370
E -mail:
jriley@co.frederick.va.us
TO:
Board of Supervisors
FROM:
John R Riley, Jr.,.County Administra r t
SUBJECT:
Business Friendly Committee Report
DATE:
July 26, 2013
At the July 10, 2013 meeting of the Board of Supervisors, the Board voted to accept the report
from the Frederick County Business Climate Assessment Citizens' Committee. During the
Board's discussions, it was the consensus for the Chairman and County Administrator to meet
and review the recommendations presented and determine which committees or boards would
evaluate and provide guidance regarding possible implementation. To that end, provided below
is a list of the phase I recommendations and the respective committee(s) assignment(s).
Public Information Officer
The dominant theme coming from the various subcommittees was public outreach and promotion
of Frederick County. One of the recommendations pertaining to this theme was the need to
create a public information officer position.
This recommendation should be forwarded to the Human Resources Committee for further
evaluation with a recommendation to be forwarded to the Board at a future meeting.
Signage Along Major Routes Entering Frederick County
One recommendation regarding promoting Frederick County as a business destination was to
install signage along Interstate 81 and major routes entering Frederick County (i.e. Routes 7, 11,
50, and 522) stating "Frederick County is Open for Business ". The committee felt this initiative
1
107 North Kent Street ® Winchester, Virginia 22601
would show Frederick County as a positive business partner and could help provide the county
with a marketing advantage.
This recommendation should be forwarded to the Transportation Committee and the Economic
Development Commission for review of signage placement and messaging, respectively.
Establishment of. an Economic Development Authority
The creation of an economic development authority or EDA was identified as an important
catalyst to fostering a more competitive business environment . for Frederick County. While the
powers and authorities of an industrial development authority, which currently exists in
Frederick County and. an economic development. authority are the same, the change from an
IDA to an EDA would provide the Board of Supervisors with an opportunity to 're- establish the
economic development vision for the county and would also provide the flexibility to pursue a
variety of business attraction and retention'option5 and strategies for implementing a diversified
economic development strategy.
This recommendation should first be referred to the Winchester- Frederick County:Economic
Development Commission. This would give the'Commission an opportunity considerthe EDA's
role in Frederick County's business attraction and retention efforts and its relationship to the
current Economic Development Commission.
Review And Evaluation of the Matter Development Plan ProcesS
The. and Use :and Development Subcommittee recommended the elimination.of the Master
Development Plan process.. They felt this process was already incorporated in other existing
ordinances and results in a duplicative process.
A re- evaluation:of the current Master Development Plan process would be appropriate. This
recommendation should be referred to the Planning Commission for initial evaluation by the
Development Review and Regulations Committee and the entire Planning Commission.
Simplification of the Landscape Ordinance
The Land Use and Development Subcommittee recommended a complete'review and re-
evaluation of the Frederick County Buffers and Landscaping Ordinance to pro '
vide a .well defined
purpose to' allow for flexibility 'in project site landscaping, tree preservation, and effective
development buffers
A re- evaluation of the current Buffers and Landscaping Ordinance would be appropriate. This
recommendation should be referred to the Planning Commission for initial evaluation by the
Development Review and Regulations Committee and the entire Planning Commission
Reduction in Proffer Reauirements
o Fr-y)
ll a
FREDERICK COUNTY BUSINESS CLIMATE ASSESSMENT CITIZEN COMMITTEE
LAND USE AND DEVELOPMENT SUBCOMMITTEE
Executive Summary of Recommendations
June 19, 2019
Hon. Richard C.5hickle, Chairman By E -mail
Frederick County Board of Supervisors
John R. Riley, Jr., County Administrator
Frederick County, Virginia
Gentlemen:
I am proud to call Frederick County my home for most of my 59 years. It is a great place to live and work
in no small part due to your leadership. Your initiation of the Business Climate Assessment Committee is
more evidence of your effort to provide superior service to all citizens of Frederick County. The Land
Use and Development Subcommittee that I have chaired is very appreciative of your solicitation of our
thoughts. Most localities would be too timid to entertain a process like this.
Our subcommittee met seven times in full with excellent attendance. Smaller sub - subcommittees met
an additional four times. Numerous e- mails, phone calls and research on the part of committee
members demonstrated their commitment to taking advantage of the opportunity you have afforded
us. Staff support was excellent.
This letter will serve as an Executive Summary of our recommendations. We strongly encourage you to
read the supplemental data provided in four attachments (referenced below).
We recommend ...
• Elimination of the Master Development Plan process as it no longer provides benefits that
cannot be achieved in a more cost effective, timely manner another way
• Consideration of reducing proffer requirements in future rezoning applications as well as
amendments to existing proffers to create viable projects that will deliver needed
transportation improvements and other benefits
• Adding an ordinance to specifically handle proffer amendments in a more surgical, direct way
without reopening the entire zoning case
The first three recommendations above are discussed in more detail in Ty Lawson's
memo dated April 16, 2013.
Simplify and trim the landscape ordinance and related sections of the code and allow staff to
exempt modest projects from triggering the ordinance provisions. Even the tiniest change to an
existing site plan will now trigger the full impact of the landscape ordinance as it is currently
written due to a modification made in early 2013.
have never seen anyone experience a medical emergency while viewing a site with no
landscaping in 58 years. I have personally experienced and know of many others who
have experienced allergies due to plant materials used in landscaping, people falling off
of ladders during their attempts to clear organic matter from landscaping out of their
gutters, automobiles damaged including a personal car totaled by a falling tree, perilous
driveways where poorly located and maintained landscaping blocks the view of
oncoming traffic, ruined ceilings where organic matter from landscaping prevented
water from promptly leaving a roof surface and it leaked to the inside, etc., etc.
Business people in Frederick County have suffered ridiculous delays due to landscape
matters getting an unjustified amount of attention. One business could not clear brush
near a facility populated 24/7 by hundreds of employees who feared the homeless living
in the brushy area for many months. Another business had their move to a new facility
delayed for an extended period due to landscaping requirements. The required
plantings look out of place for the neighborhood and were a waste of money.
Professional people involved in the preparation of site plans have reported the need to
just "cram in the required trees" to meet the requirements. Many projects look grossly
overdone —there is just so much plant material used. f=inally, it has been reported that
as the required landscaping matures it must be thinned out because it has been
overplanted at the outset. All of this should be no surprise since the ordinance is largely
based on recommendations of the American Nursery and landscape Association, an
industry association whose members sell and install plant material. Congratulations to
the association for a job well done for its members.
Frederick County is still by land area a largely rural county and beautiful. There is no
justification for the complexity and excess in the current policy. Most businesses will
landscape their properties anyway to make themselves attractive to two very important
groups of people — prospective customers and employees. It is insulting to think that
the County legislates beauty by dictating these requirements forcing the use of
excessive materials. The problem will be magnified and be even more difficult to
manage with the onset of the Chesapeake Bay requirements July 1, 2014.
Please see Scot Marsh's memo dated May 2, .20.3 for additional
information on this recommendation.
• Customer service training for employees meeting the public with a feedback system to allow for
continuous improvement
• Staff reviews once per year supported by a citizen committee. Staff may need to be cut.
Please see the Staff Considerations section of the Addltionol tnformation.
• Enhance the existing "fast track" process for site plan approval. Goal is to be the talked about
place where you can save time /money building your business project.
• Be cautious about government competing with the private sector. Commercial and Industrial
rezonings should be much easier to accomplish for all applicants and extraordinary support for
specific applicants should be avoided. This is in conflict with certain recommendations of the
BRAS committee. We fully support deferral of roll back taxes on industrial land until it is
developed to encourage property owners to go ahead and rezone.
• We support the Business Attraction and Retention Subcommittee's recommendation to
establish an Economic Development Authority.
• Consider having the Economic Development Authority provide an ombudsman to assist
businesses in navigating the various permit and approval channels on a prompt, cost effective
basis,
Please see the Land Use Matters section of the Additional Information.
• Encourage the use of more private roads particularly in commercial /industrial projects
• Consider establishing a committee to focus solely on the completion of Route 37 East. The
window of opportunity now vs. future inflated right -of -way acquisition and construction costs as
well as higher interest rates is compelling. The county has already become more savvy in the
use of matching funds, etc. to get things done.
Please see the Roads section of the Additional information.
Encourage local authorities including the Winchester Regional Airport, the Frederick County
Sanitation Authority and the Frederick Winchester Service Authority to be business friendly
as well. Specific issues are discussed in the Additional Information.
Our subcommittee would be willing to meet with you at your convenience to answer any questions you
might have about our recommendations, We all have a continuing interest in supporting your efforts to
keep Frederick County a business friendly, vibrant place, Feel free to call upon any of us for support as
needed.
Thanks again for being bold enough to open the door for our input.
Sincerely,
John P. Good, Jr.
Chairrn
Land Use and Development Subcommittee
MEMORANDUM
TO: Land Use and Development Subcommittee
FROM: Scot W. Marsh
DATE: May 2, 2013
RE: Recommendations to Board of Supervisors
Buffers and Landscaping
The following is a summary of the discussions regarding recommendations for
amendments to the Frederick County Zoning Ordinance with regard to the buffers and
landscaping requirements. This summary with recommendations is in draft form for review by
our committee for the addition to our committee's final recommendations to the Frederick
County Board of Supervisors.
Buffers and Landscaping Requirements:
It is the recommendation of the Land Use and Development Subcommittee to have the
existing Frederick County Buffers and Landscaping Ordinance completely reviewed and re-
written to provide, first and foremost, a well defined purpose to allow for flexibility in the project
site landscaping, tree preservation, and effective development buffers. This specific ordinance
should reflect the community's priorities and should prominently state the benefits that are to be
realized with the implementation of these requirements. The ordinance should be written in a
manner that can be understood by not only a professional designer, but also a developer or
contractor so that he or she will comprehend what must be done to meet the standards. The
ordinance should be tailored so that the landscaping features are most suitable for the particular
terrain, proposed design features, adjacent lands, drainage and other site - specific elements.
Recommendations for the New Landscape Ordinance:
o There should be no landscaping requirements on single - family residential lots.
o Existing Facility expansion projects the landscaping requirements should be
limited.
o Create a Landscape Advisory Committee
o Reduce or scale back the amount of specific landscaping required on a project
o Minimize construction costs that relate to matters of taste
o Reduce government control, regulation, and intervention for small business.
o Provide for flexibility during the design and construction phases by allowing for
business owners to manage their properties to meet the needs of the specific
facility.
The new landscape ordinance would be created by a that would be made up of
approximately ten (10) members. The landscape advisory committee would be diverse and
representative of the following suggested disciplines:
From the Private Sector: A certified landscape architect, a civil engineer site planner, a
representative of the local builders' association, a landscaping contractor, a local plant nursery
grower, and a project developer.
From Local Government: A Planning Department representative and a member of the
Planning Commission or Board of Supervisors.
The landscape advisory committee would be authorized to retain the services of a
consultant with expertise in landscape and development planning to assist and facilitate the
creation of the new landscape ordinance. This same committee would continue service for
design and review of landscape plans.
The Land Use and Development Subcommittee has come to this recommendation
through extensive discussions regarding our existing ordinance and through inquiry with
planners, engineers, landscape contractors, developers, and site contractors that are familiar
with the current Frederick County Ordinance. It is through these discussions that we have
found that our current ordinance is difficult to understand, restrictive for the implementation of
new creative ideas, and lacks flexibility for actual site construction and landscape
implementation.
The following are some comments from professionals that have experience
with the current Frederick County Landscaping Ordinance.
SUMMARY REVIEW
A. Clearly distinguish between commercial, industrial and residential landscape requirements.
B. Clearly identify the submittal, review and appeal process for landscape plans and buffer
requirements.
C. Clearly identify buffer requirements within the context of each zoning district (like setbacks).
D. Consider buffers as distance between uses to help urban infill.
E. Look carefully at the landscape requirements with plants and trees at mature levels.
F. Keep tree save and tree preservation requirements out of the landscape section.
G. Look carefully at the intent of the landscape requirements to help guide the Zoning
Administrator. Critical is the view from the street or road for a commercial, mixed use or
industrial use.
H. Consider the unintended consequences of the landscape, tree save and buffer requirements.
• Are trees being removed prior to the development process?
• Are plants and trees being removed after the final CO?
• Are infill sites being left undeveloped due to buffers?
There are a number of items that jump out after reviewing the Landscape Requirements of the Frederick
County Zoning Ordinance.
1. Chapter II — Supplementary Use Regulation: Parking; Buffers; and Regulations for Specific Uses — 203
Buffers and Landscaping — Section 165- 203.01 do not contain all of the landscaping requirements.
Additional landscaping requirements are located in the parking requirements.
Suggestion:
Place all landscaping requirements in one section for ease of reverence.
2. It is unclear to the reader if the Landscape Regulations pertain to just residential or residential,
commercial and industrial uses. The Landscape Regulations and Buffer requirements are a mix of
standards for commercial, industrial and residential adding confusion to the provisions as to where the
regulations apply. Although for residential these standards impact both commercial and industrial uses
and should be clearly referenced.
Suggestion:
Clearly identify the landscape requirements for each major land use category by use (industrial,
commercial or residential)
3. The Chapter heading suggests that there are parking regulations included in the Landscaping
Regulations.
Suggestion
Place all parking regulations and parking lot standards for landscaping in one location.
4. The Landscaping Regulations include landscape, buffer requirements and tree saving (tree
preservation) standards. There is no provision for appeal or review of a plan by a committee that has
expertise in one or another particular field.
Sueeestion — Tree Preservation:
Tree saving (preservation) are generally under a tree commission or parks commission in more
urban areas. Consider a qualified group or committee to oversee the tree preservation portion of
the code.
Consider removal of the tree preservation standards to its own section.
Clearly identify if this section only applies to residential.
It is not clear if this applies to non - residential uses at a first glance.
Does the tree save standard encourage removal of trees prior to the development process to avoid
preservation?
The tree preservation section is labeled as landscaping. This is confusing. The standards do not
allow for a trained forester to conduct the tree drip line analysis.
Clearly outline the process for review, modification of the standards and appeals.
Su22estion — Buffers and Screens:
Distance buffers and screens were originally designed to be measured between actual uses and not within
internal property lines. Waivers could be obtained if adjoining property owners agreed. As Frederick
County changes to a more urban nature in -fill becomes more and more important. Consider modifying
this section to allow reconsider distance between uses and waivers by adjoiners to promote infill.
Distance buffers have become a form of setbacks impacting the way many properties can be used and
developed. Consider adding a reference to the required buffers that they be placed in the setback
standards.
Distance buffers include landscaping. The landscaping requirements for the number of plants and spacing
need to consider the distance between plants when mature. The current standard appears to crowd
plantings — modify the spacing requirements to recognize the mature levels of the required plants
and trees.
Suggestions — Road Efficiency Buffers:
Road efficiency buffers need to be clearly identified if they are intended for commercial, industrial
or residential uses.
5. Parking Lot Landscape Requirements:
Landscaping. Parking lots in the RP Residential Performance District, the R4 Residential Planned
Community District, the R5 Residential Recreational Community District, the MHI Mobile Home
Community District, the BI Neighborhood Business District, the B2 Business General District, the B3
Industrial Transition District, the OM Office Manufacturing Park District, the MI Light Industrial
District, the M2 Industrial General District, the MS Medical Support District, and the HE (Higher
Education) District shall be landscaped to reduce the visual impact of glare and headlights on adjoining
properties and rights -of -way. Parking lots shall be adequately shaded to reduce reflected heat.
In the RA (Rural Areas) District, parking lot landscaping shall not be required for parking lots with 10
or fewer spaces Landscaping shall also be provided to reduce the visual expansiveness of parking lots.
Landscaping shall be provided in such parking lots as follows:
(a) Perimeter landscaping. The perimeter of all impervious areas shall be landscaped with shade trees
and other landscaping. One tree shall be provided for every 2,000 square feet of impervious area for the
first 100,000 square feet of the entire site. One tree shall be provided for every 5,000 square feet in
excess of the first 100,000 square feet of the entire site. Self - service storage facilities shall provide one
tree per 10, 000 square feet of impervious area of the entire site, in addition to the trees required in §
165- 204.18, Storage facilities, self - service. The perimeter landscaping trees shall be reasonably
dispersed throughout the parking lot. A three-foot-high evergreen hedge, fence, berm, or wall shall be
provided to prevent headlights from shining on public rights -of -way and adjoining properties. All
perimeter landscaping shall comply with the requirements of § 165-203. 01B, Plant selection, planting
procedure, and maintenance.
(b) Interior landscaping. A minimum of 5% of the interior portions of parking lots shall be landscaped
for the purpose of providing shade trees. Such interior landscaping shall be provided on raised islands
and in continuous raised strips extending the length of a parking bay. Within the parking lot, raised
islands and landscaped areas should be uses to delineate traffic and pedestrian circulation patterns. No
less than one shade tree shall be provided in the interior of the parking lot for each 10 parking spaces.
The Zoning Administrator may waive the requirement for interior landscaping for parcels located outside
of the Sewer and Water Service Area when curb and gutter is not proposed. The Zoning Administrator
may approve alternative locations for interior landscaping for parking lots used for truck parking, as well
as other parking lots, when it would improve the overall quality of the landscape plan. All interior
landscaping shall comply with the requirements of § 165 - 203.0113, Plant selection, planting procedure,
and maintenance.
Pedestrian access. Sidewalks shall be provided as necessary within parking lots to protect pedestrians and
promote the safe and efficient movement of pedestrians and vehicles. In large parking lots, pedestrian
walkways and crosswalks shall be provided, marked by durable painted stripes and appropriate signs.
The parking lot landscape requirements generally are for commercial and industrial uses but can apply to
residential uses.
Suggestion:
Clearly identify the landscape requirements for commercial and industrial uses.
Clearly identify the process and procedure for review and modification of landscape plans. If a
plan is modified from the standard due to site conditions, the Zoning Administration has the final
approval. If the designer and Zoning Administrator do not agree; what is the procedure for
resolution?
Look at the mature stage of plants and trees during the planning phase to eliminate crowding.
0 in
200,6
Landscaping Revisions - DRRC Comments
Business Friendly - Overall Suggestions:
• Place all landscaping requirements in one section for ease of reverence.
o The DRRC acknowledged that the landscaping requirements should be contained in
one section and suggested the parking lot landscaping be moved to the overall
landscaping section.
• Clearly identify the landscape requirements for each major land use category by use
(industrial, commercial or residential)
o The DRRC stated that the ordinance already clearly differentiates between
residential and commercial sites in regards to the landscaping requirements and no
changes are necessary.
• Place all parking regulations and parking lot standards for landscaping in one location.
o The DRRC acknowledged that the landscaping requirements should be contained in
one section and suggested the parking lot landscaping be moved to the overall
landscaping section.
• Clearly identify the landscape requirements for commercial and industrial uses.
o The DRRC stated that Commercial and industrial uses have the some landscaping
requirements.
• Clearly identify the submittal, review and appeal process for landscape plans and buffer
requirements.
o Landscaping plans are required as part of the site plan process, there is a checklist
included within the application package that indicates what is required. There is no
appeal process for landscaping.
• Clearly identify the process and procedure for review and modification of landscape
plans. If a plan is modified from the standard due to site conditions, the Zoning
Administration has the final approval. If the designer and Zoning Administrator do not
agree; what is the procedure for resolution?
o All site plans are approved with a note stating that all deviations from the approved
landscaping plan must have prior approval by the Planning Department and any
plant substitutions must be approved in writing. The designer must follow the
standards set forth in the ordinance, to date there have been no issues with
landscaping approval.
• Look carefully at the landscape requirements with plants and trees at mature levels.
o The DRRC questioned this comment. The committee stated that most trees used for
landscaping don't grow to their maturity height (removal by owner, topping, dying
out). Looking at the mature height reduces the number of trees a site would reduce
the landscaping up front, but wouldn't provide adequate buffers for neighbors or
parking lot shading.
1
Landscaping Revisions - DRRC Comments
• Look at the mature stage of plants and trees during the planning phase to eliminate
crowding.
o Looking at the mature height reduces the number of trees a site would reduce the
landscaping upfront, but wouldn't provide adequate buffers for neighbors or
parking lot shading.
• Clearly identify buffer requirements within the context of each zoning district (like
setbacks).
o There is a table that clearly identifies setbacks when zoning district buffers are
required.
• Consider buffers as distance between uses to help urban infill.
o The DRRC discussed the buffers and the comment about infill. The committee was
satisfied with the current requirements and stated that infill should be cohesive with
adjacent uses or else they need to provide buffers.
• Keep tree save and tree preservation requirements out of the landscape section.
o The DRRC discussed tree preservation and stated that it is a landscaping option and
therefore belongs in the landscaping section (you can preserve or remove and
replant).
• Look carefully at the intent of the landscape requirements to help guide the Zoning
Administrator. Critical is the view from the street or road for a commercial, mixed use or
industrial use.
• DRRC stated that that trees aren't simply provided for aesthetic reasons, they help
shade parking which is necessary because of the heat that comes off them and the
air pollution that comes from that.
• The placement of trees within parking lot islands and the perimeter of parking lots
serve a purpose.
• Consider the unintended consequences of the landscape, tree save and buffer
requirements.
• Are trees being removed prior to the development process?
■ Existing landscaping is typically removed by the property owner prior to
development (after a land disturbance permit is obtained).
• Are plants and trees being removed after the final CO?
• Rarely is the landscaping removed after the final CO.
• DRRC stated that there is enough space on sites to accommodate trees and
shrubs and regarding damage to plants, that's an issue with poor placement
of the plants. Moving shrubs and trees back from the curb is will eliminate
plants being damaged because of snow removal equipment. Poor
placement seems to be the issue, the cost isn't that much.
• Are infill sites being left undeveloped due to buffers?
■ Buffers are required between incompatible uses, if a site cannot develop due
to a required buffer it is adjacent to an existing use that would be negatively
2
Landscaping Revisions - DRRC Comments
impacted by the elimination of the buffer requirement and the development
of the parcel.
■ DRRC stated that buffers are necessary to protect adjacent land owners.
Other Business Friendly Suggestions:
There should be no landscaping requirements on single - family residential lots.
o The DRRC was satisfied with the current residential on lot landscaping and
acknowledged that the Rural Areas landscaping requirement was removed a number
of years ago. Committee members stated that the cost to provide individual
landscaping on a residential lot is nominal and goes towards providing uniformity
within a planned subdivision.
o DRRC committee members questioned whether or not property owners would plant
landscaping if it were not required by ordinance. If the ordinance didn't place any
restrictions, you don't know what you will get, you need some type of continuity and
aesthetics.
Business Friendly Suggestion — Tree Preservation:
• Tree saving (preservation) are generally under a tree commission or parks commission in
more urban areas. Consider a qualified group or committee to oversee the tree
preservation portion of the code.
o The DRRC stated that a Tree Commission is usually something a larger locality or city
would have and that adding one would only create another hurdle for development.
• Consider removal of the tree preservation standards to its own section.
o DRRC recommended tree preservation remain in the landscaping section.
• Clearly identify if this section only applies to residential.
o Residential and commercial standards are clearly outlined.
• It is not clear if this applies to non - residential uses at a first glance.
o Residential and commercial standards are clearly outlined.
• Does the tree save standard encourage removal of trees prior to the development process
to avoid preservation?
o No, it the prerogative of the property owner and the engineer as to whether the
existing trees can be maintained and their property be developed as desired.
Previous ordinance required tree preservation for all lots being developed, this was
requested to be removed and that removal was approved by the Board of
Supervisors.
The tree preservation section is labeled as landscaping. This is confusing. The standards
do not allow for a trained forester to conduct the tree drip line analysis.
o Tree preservation is a landscaping option; the property owner can opt to preserve
existing landscaping or remove and provide new landscaping.
Clearly outline the process for review, modification of the standards and appeals.
Landscaping Revisions - DRRC Comments
• Landscaping plans are required as part of the site plan process, there is a checklist
included within the application package that indicates what is required. There is no
appeal process for landscaping.
• All site plans are approved with a note stating that all deviations from the approved
landscaping plan must have prior approval by the Planning Department and any
plant substitutions must be approved in writing. The designer must follow the
standards set forth in the ordinance, to date there have been no issues with
landscaping approval.
Business Friendly Suggestion — Buffers and Screening:
• Distance buffers and screens were originally designed to be measured between actual uses
and not within internal property lines. Waivers could be obtained if adjoining property
owners agreed. As Frederick County changes to a more urban nature in -fill becomes more
and more important. Consider modifying this section to allow reconsider distance between
uses and waivers by adjoiners to promote infill.
o Buffers have always been measured from property lines. Waivers were only recently
added to the ordinance to allow property owners to waive or reduce the distance of
a buffer with approval of the impacted neighbor.
Distance buffers have become a form of setbacks impacting the way many properties can be
used and developed. Consider adding a reference to the required buffers that they be placed
in the setback standards.
o This is a text note that would provide reference to the landscaping section of the
ordinance.
• Distance buffers include landscaping. The landscaping requirements for the number of plants
and spacing need to consider the distance between plants when mature. The current
standard appears to crowd plantings — modify the space requirements to recognize the
mature levels of the required plants and trees.
o DRRC Comment - Looking at the mature height reduces the number of trees a site
would reduce the landscaping up front, but wouldn't provide adequate buffers for
neighbors or parking lot shading.
Business Friendly Suggestions — Road Efficiency Buffers:
Road efficiency buffers need to be clearly identified if they are intended for commercial,
industrial or residential uses.
o Staff Note: The ordinance clearly specifies that road efficiency buffers only apply to
residential developments.
M
0 n
R 0@0,
Landscaping Revisions - Business Friendly Recommendations
Business Friendly - Overall Suggestions:
• Place all landscaping requirements in one section for ease of reverence.
• Clearly identify the landscape requirements for each major land use category by use
(industrial, commercial or residential)
• Place all parking regulations and parking lot standards for landscaping in one location.
• Clearly identify the landscape requirements for commercial and industrial uses.
• Clearly identify the submittal, review and appeal process for landscape plans and
buffer requirements.
• Clearly identify the process and procedure for review and modification of landscape
plans. If a plan is modified from the standard due to site conditions, the Zoning
Administration has the final approval. If the designer and Zoning Administrator do not
agree; what is the procedure for resolution?
• Look carefully at the landscape requirements with plants and trees at mature levels.
• Look at the mature stage of plants and trees during the planning phase to eliminate
crowding.
• Clearly identify buffer requirements within the context of each zoning district (like
setbacks).
• Consider buffers as distance between uses to help urban infill.
• Keep tree save and tree preservation requirements out of the landscape section.
• Look carefully at the intent of the landscape requirements to help guide the Zoning
Administrator. Critical is the view from the street or road for a commercial, mixed use
or industrial use.
• Consider the unintended consequences of the landscape, tree save and buffer
requirements.
• Are trees being removed prior to the development process?
• Are plants and trees being removed after the final CO?
• Are infill sites being left undeveloped due to buffers?
Part 202 — Off - Street Parking, Loading and Access
§ 165 - 202.01 Off - street parking; parking lots.
D. Parking lots. Parking spaces shared by more than one dwelling or use, required for any use in
the business or industrial zoning district or required for any institutional, commercial or
industrial use in any zoning district shall meet the following requirements:
(13) Landscaping. Parking lots in the RP Residential Performance District, the R4 Residential
Planned Community District, the R5 Residential Recreational Community District, the
MH1 Mobile Home Community District, the B1 Neighborhood Business District, the B2
Business General District, the B3 Industrial Transition District, the OM Office -
Manufacturing Park District, the M1 Light Industrial District, the M2 Industrial General
District, the MS Medical Support District, and the HE (Higher Education) District shall be
landscaped to reduce the visual impact of glare and headlights on adjoining properties
1
Landscaping Revisions - Business Friendly Recommendations
and rights -of -way. Parking lots shall be adequately shaded to reduce reflected heat. In
the RA (Rural Areas) District, parking lot landscaping shall not be required for parking
lots with 10 or fewer spaces. Landscaping shall also be provided to reduce the visual
expansiveness of parking lots. Landscaping shall be provided in such parking lots as
follows:
a) Perimeter landscaping. The perimeter of all impervious areas shall be landscaped
with shade trees and other landscaping. One tree shall be provided for every 2,000
square feet of impervious area for the first 100,000 square feet of the entire site.
One tree shall be provided for every 5,000 square feet in excess of the first 100,000
square feet of the entire site. Self- service storage facilities shall provide one tree
per 10,000 square feet of impervious area of the entire site, in addition to the trees
required in § 165- 204.18, Storage facilities. The perimeter landscaping trees shall
be reasonably dispersed throughout the parking lot. A three - foot -high evergreen
hedge, fence, berm or wall shall be provided to prevent headlights from shining on
public rights -of -ways and adjoining properties. All perimeter landscaping shall
comply with the requirements of §165- 203.016, Plant selection, planting procedure
and maintenance.
b) Interior landscaping. A minimum of 5% of the interior portions of parking lots shall
be landscaped for the purpose of providing shade trees. Such interior landscaping
shall be provided on raised islands and in continuous raised strips extending the
length of a parking bay. Within the parking lot, raised islands and landscaped areas
should be uses to delineate traffic and pedestrian circulation patterns. No less than
one shade tree shall be provided in the interior of the parking lot for each 10
parking spaces. The Zoning Administrator may waive the requirement for interior
landscaping for parcels located outside of the Sewer and Water Service Area when
curb and gutter is not proposed. The Zoning Administrator may approve alternative
locations for interior landscaping for parking lots used for truck parking, as well as
other parking lots, when it would improve the overall quality of the landscape plan.
All interior landscaping shall comply with the requirements of § 165 - 203.0113, Plant
selection, planting procedure and maintenance.
Part 203 — Buffers and Landscaping
§ 165 - 203.01 Landscaping requirements.
The requirements of this section are intended to enhance the appearance, environment, and general
welfare of Frederick County by providing minimum landscaping standards and encouraging tree
preservation for developments. The provisions of this section shall apply to all site plan and subdivision
design plan applications, including the revision or expansion of any site or development.
A. Residential developments. Residential developments which require a master development plan,
subdivision design plan or site plan shall provide at least one of the three types of landscaping
identified below.
2
Landscaping Revisions - Business Friendly Recommendations
Business Friendly Suggestion:
There should be no landscaping requirements on single - family residential lots.
(1) Street tree landscaping. Street tree landscaping shall require one street tree for every 40 feet of
street frontage in a residential development, with the exception of frontage on roads which
require a road efficiency buffer. Street trees shall be planted no more than 20 feet from rights -
of -way. Planting street trees on the property lines of building lots should be avoided. Two or
more street trees shall be planted on each building lot. The Zoning Administrator may allow
fewer than two street trees for an individual building lot if topographical features, utilities,
easements, or the width of the lot makes it impractical to do so. All street trees shall comply
with the requirements of § 165 - 203.0113, with the exception that street trees must be at least
two - and - one - half -inch caliper at the time of planting.
(2) Ornamental landscaping.
(a) Ornamental landscaping shall be provided for residential developments based on the
following index and matrix:
Index of Lot Types
Lot Type
Description
A
Single - Family Detached Rural Traditional
B
Single - Family Detached Traditional
C
Single - Family Detached Urban
D
Single - Family Detached Cluster
E
Single - Family Detached Zero Lot Line
F
Single - Family Small Lot
G
Multiplex
H
Townhouse, Back -to -Back Townhouse
I
Garden Apartment, Multifamily Residential Buildings
Age Restricted Multifamily Housing
Required Landscaping Per Dwelling Unit
Lot Type
Ornamental Shrubs
Ornamental Trees
A
None
10 per 1 unit
3
Landscaping Revisions - Business Friendly Recommendations
B
10 per 1 unit
5 per 1 unit
C
10 per 1 unit
5 per 1 unit
D
10 per 1 unit
5 per 1 unit
E
10 per 1 unit
5 per 1 unit
F
15 per 1 unit
5 per 1 unit
G
3 per 3 units*
1 per 3 units*
H
6 per 5 units*
2 per 5 units*
1
3 per 2 units*
1 per 2 units*
Note: *Required ornamental trees and shrubs are in addition to all trees and
shrubs elsewhere required in the Zoning Ordinance.
(b) Ornamental trees and shrubs shall comply with the requirements of § 165 - 203.0113. The
Zoning Administrator may allow some of the required ornamental trees and ornamental
shrubs to be planted in areas of common open space so long as the intent of this section is
met.
(3) Tree preservation landscaping. An area with a tree canopy coverage, of at least 25% of the entire
site area, shall be preserved within dedicated open space. In no case shall individual building lots
be located within the open space. Canopy coverage shall be calculated from the cumulative total
of existing tree canopies. Preserved trees shall be clustered together to maintain a contiguous
canopy; and shall be protected from construction activity. These areas of open space may be
counted towards the total required open space, as specified in § 165- 402.07. Residential
developments which are not required to have open space by § 165- 402.07 are not exempt from
creating open space for the required canopy coverage. The calculation of tree canopy shall be
based on either the individual tree standards of the "Manual of Woody Landscape Plants,"
written by Michael A. Dirr, or through a comprehensive analysis of existing tree drip lines,
conducted by a Virginia certified engineer, land surveyor, or landscape architect.
Business Friendly Suggestion —Tree Preservation:
• Tree saving (preservation) are generally under a tree commission or parks commission in more
urban areas. Consider a qualified group or committee to oversee the tree preservation portion of
the code.
• Consider removal of the tree preservation standards to its own section.
• Clearly identify if this section only applies to residential.
• It is not clear if this applies to non - residential uses at a first glance.
• Does the tree save standard encourage removal of trees prior to the development process to avoid
preservation?
• The tree preservation section is labeled as landscaping. This is confusing. The standards do not
allow for a trained forester to conduct the tree drip line analysis.
Clearly outline the process for review, modification of the standards and appeals.
Landscaping Revisions - Business Friendly Recommendations
B. Plant selection, planting procedure, and maintenance.
(1) Plant selection. Based on the type of landscaping, required trees and shrubs shall be selected
from the table of acceptable trees and shrubs shown below.
Types of Landscaping
Street tree landscaping (street) Ornamental landscaping (ornamental) Tree preservation landscaping
(canopy) Interior and perimeter landscaping (shade), Buffer screening and parking lot screening (screen),
Deciduous buffer element (street, canopy, shade), buffer shrub element (shrub or screen)
Acceptable Trees and Shrubs
Types of Landscaping
Common Name
Scientific Name
Permitted
Amur Maple
Acer ginnala
Street, shade, canopy,
ornamental
European Hornbeam
Carpinus betulus
Street, shade, canopy,
ornamental
Hop Hornbeam
Ostrya virginiana
Street, shade, canopy,
ornamental
Katsura Tree
Cercidiphyllum japonicum
Street, shade, canopy,
ornamental
Ginkgo (male)
Ginkgo biloba
Street, shade, canopy,
ornamental
Thornless Honey Locust
Gleditsia triacanthos inermis
Street, shade, canopy,
ornamental
Golden -Rain Tree
Koelreuteria paniculata
Street, shade, canopy,
ornamental
Flowering Crabapple
Malus (disease resistant varieties)
Street, shade, canopy,
ornamental
Chinese Pistache
Pistacia chinensis
Street, shade, canopy,
ornamental
Linden
Tilia (all varities)
Street, shade, canopy,
ornamental
Lacebark Elm
Ulmus parvifolia
Street, shade, canopy,
ornamental
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Landscaping Revisions - Business Friendly Recommendations
Japanese Zelkova
Zelkova serrata
Street, shade, canopy,
ornamental
Red Oak
Quercus rubra
Street, shade, canopy,
ornamental
White Oak
Quercus alba
Street, shade, canopy,
ornamental
Scarlet Oak
Quercus coccinea
Street, shade, canopy,
ornamental
Sawtooth Oak
Quercus acutissima
Street, shade, canopy,
ornamental
Kentucky Coffeetree
Gymnocladus diocus
Street, shade, canopy,
ornamental
Dawn Redwood
Metasequoia glyptostroboides
Street, shade, canopy
Swamp Chestnut Oak
Quercus michauxii
Street, shade, canopy
Willow Oak
Quercus phellos
Shade, canopy, ornamental
Bald Cypress
Taxodium distichum
Street, shade, canopy
Red Maple
Acer rubrum
Shade, canopy, ornamental
Freeman Maple
Acer freemanii
Shade, canopy, ornamental
Sugar Maple
Acer saccharum
Shade, canopy, ornamental
Paperbark Maple
Acer griseum
Shade, canopy, ornamental
American Sycamore
Platanus occidentallis
Shade, canopy, ornamental
London Plane Tree
Platanus acerifolia
Shade, canopy, ornamental
Sweetgum
Liquidambar styraciflua
Shade, canopy, ornamental
Copper Beech
Fagus sylvatica 'Riversii'
Shade, canopy, ornamental
Weeping Beech
Fagus pendula
Shade, canopy, ornamental
European Beech
Fagus sylvatica
Shade, canopy, ornamental
River Birch
Betula nigra
Shade, canopy, ornamental
Star Magnolia
Magnolia stellata
Shade, canopy, ornamental
Landscaping Revisions - Business Friendly Recommendations
Saucer Magnolia
Magnolia x soulangiana
Shade, canopy, ornamental
Black Gum
Nyssa sylvatica
Shade, canopy, ornamental
Yellowwood
Cladrastis kentukea
Shade, canopy, ornamental
Downy Serviceberry
Amelanchier arborea
Shade, canopy, ornamental
Hawthorn
Crataegus plaenopyrum, Crataegus
viridis
Shade, canopy, ornamental
Sourwood
Oxydendrum arboreum
Shade, canopy, ornamental
Tuliptree
Liriodendron tulipifera
Shade, canopy, ornamental
Paw Paw
Asimina triloba
Shade, canopy, ornamental
Dogwood
Cornus florida, Cornus kousa, Cornus
hybrid
Shade, ornamental
Flowering Cherry
Prunus (all varieties of Flowering
Cherry)
Shade, ornamental
Cornelian Cherry
Cornus mas
Shade, ornamental
Eastern Redbud
Cercis canadensis
Shade, ornamental
American Plum
Prunus americana
Shade, ornamental
Japanese Maple
Acer palmatum
Shade, ornamental
Douglas Fir
Pseudotsuga menziesii
Screen, ornamental
White Fir
Abies concolor
Screen, ornamental
Spruce
Picea (all varieties)
Screen, ornamental
Japanese Umbrella Pine
Sciadopitys verticillata
Screen, ornamental
Hinoki False Cypress
Chamaecyparis obtusa
Screen, ornamental
White Pine
Pinus strobus
Screen, canopy
Western Arborvitae
Thuja plicata
Screen, ornamental
Eastern Arborvitae
Thuja occidentalis (all varieties)
Screen, ornamental
Leyland Cypress
Cupressocyparis x leylandi
Screen, ornamental
Landscaping Revisions - Business Friendly Recommendations
Japanese Cedar
Cryptomeria japonica
Screen, ornamental
Viburnum (Evergreen)
(all evergreen /semi- evergreen
varieties)
Screen, ornamental, shrub
Yew
Taxus (all varieties)
Screen, ornamental, shrub
Holly
Ilex (all varieties)
Screen, ornamental, shrub
Common Boxwood
Buxus sempervirens
Screen, ornamental, shrub
Juniper
Juniperus (all varieties)
Screen, ornamental, shrub
Abelia
(All varieties)
Screen, ornamental, shrub
Witchhazel
Hamamelis vernalis
Ornamental, shrub
White Fringetree
Chionanthus virginicus
Ornamental, shrub
Slender Deutzia
Deutzia gracilis
Ornamental, shrub
Althea
Hibiscus syriacus
Ornamental, shrub
Vicary privet
Ligustrum x vicaryi
Ornamental, shrub
Sweet Mockorange
Philadelphus coronarius
Ornamental, shrub
Japanese pieris
Pieris japonica
Ornamental, shrub
Cotoneaster
(All varieties)
Ornamental, shrub
Spirea
(All varieties)
Ornamental, shrub
Weigela
(All varieties)
Ornamental, shrub
Forsythia
(All varieties)
Ornamental, shrub
Dwarf Fothergilla
Fothergilla gardenii
Ornamental, shrub
Buttonbush
Cephalanthus occidentalis
Ornamental, shrub
Japanese pagodatree
Sophora japonica
Ornamental, shrub
Chastetree
Vitex agnus - castus
Ornamental, shrub
Standard Nandina
Nandina domestica
Ornamental, shrub
Purple Plum
Prunus cerasifera
Ornamental
Landscaping Revisions - Business Friendly Recommendations
Crape Myrtle
Lagerstroemia indica
Ornamental
Persian parrotia
Parrotia persica
ornamental
Hydrangea
(all varieties)
Ornamental
Mugo pine
Pinus mugo
Ornamental
Itea
(All varieties)
Ornamental
Aronia
(All varieties)
Ornamental
Clethra
(All varieties)
Ornamental
Azalea
Rhododendron (All varieties)
Ornamental
Rhododendron
(All varieties)
Ornamental
Northern Bayberry
Myrica pensylvanica
Ornamental
Meyer Lilac
Syringa meyeri 'Palibin'
Ornamental
(2) Planting procedure. All required trees and shrubs shall meet the specifications and procedures
established by the American Nursery and Landscape Association.
a) All trees shall be planted no closer than three feet to the edge of sidewalks, curb or other
pavement.
b) Deciduous trees shall be a minimum of two -inch caliper at the time of planning.
c) Only single stem trees shall be planted as street trees.
d) Evergreen trees shall be a minimum of four feet in height at the time of planting. Shrubs
shall be a minimum three - gallon container at the time of planting. In addition to the three -
gallon container requirement, parking lot screening shrubs shall be a minimum of 36" in
height at time of planting and buffer shrubs shall be a minimum of 18" in height at time of
planting. Spacing of parking lot screening shrubs shall be no greater than four (4) feet on
center.
e) Only trees having a mature height of less than 20 feet shall be located under overhead
utility lines.
f) Measurement of Size. Caliper is measured six (6) inches above the ground up to and
including four (4) inch caliper size, and twelve (12) inches above the ground for larger sizes.
Diameter at breast height (dbh) will be measured at the height of 54 inches from the base
of the trunk or as otherwise allowed in the Guide for Plant Appraisal.
(3) Maintenance. The owner, developer, and /or builder who is responsible for planting required
landscaping shall be responsible for maintaining it in a state of good health for one year after
planting. After one year, from the date occupancy is approved, the individual property owner
and /or homeowner's association shall become responsible for maintenance. As long as the intent
of this section is met, the Zoning Administrator may waive the requirement for landscaping on
individual building lots when a hazard or nuisance exists.
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Landscaping Revisions - Business Friendly Recommendations
C. Existing tree credits. If the intent of § 165- 203.01 is satisfied, including species type and location,
existing trees that are preserved may be counted towards the total number of required trees for
residential developments. Commercial and industrial developments may utilize existing tree credits
when calculating the required number of parking lot trees, as required in § 165- 202.01D(13), if the
preserved trees are shown on an approved site plan and serve the intent of interior and perimeter
landscaping. The following table shows the credit given for each preserved tree, based on the tree's
caliper:
Caliper (inches)
Tree Credit
4to6
1
7to12
2
13 to 18
3
19 to 29
4
Greater than 30
5
D. Enforcement procedures. The Zoning Administrator may require a bond with surety or other
acceptable guaranties to insure the completion of required improvements. Such guaranties shall be
in the estimated amount of the required improvements. Such guaranties shall be for a period of
completion set by the Zoning Administrator with consultation with the applicant. Such guaranties
shall be released when the required improvements have been completed.
§ 165 - 203.02 Buffer and screening requirements.
It is the intent of the regulations of this section to encourage proper design of a site in order to protect
adjacent existing uses and to protect proposed uses within the site. Certain types of uses must be
buffered from other types in order to ensure a desirable living environment. Additionally, appropriate
distances must be maintained between commercial, industrial and residential uses and roads.
A. Distance buffers. Distance buffers are based on the nature of an activity and its proximity to an
activity of a different nature. They are linear distances measured from property lines inward. Part of
the buffer must be inactive and part may be active. The inactive portion begins at the adjoining
property line, as shown in the example diagrams.
(1) Inactive distance buffer. This portion of a buffer area permits no activity except the necessary
utility functions provided by transmission lines, underground conduits, etc.
(2) Active distance buffer. This portion of a buffer area may not be encroached by a building or
other principal structure or activity. However, accessory activities, such as parking, are
permitted in this area. Active buffers shall not contain road rights -of -way.
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Landscaping Revisions - Business Friendly Recommendations
(3) Wherever proposed developments are adjacent to or within 1,000 feet of the boundaries of
existing uses, the Board of Supervisors may require increased or additional distance buffers to
separate different uses to achieve the intentions of this section.
Business Friendly Suggestion — Buffers and Screening:
Distance buffers and screens were originally designed to be measured between actual uses and not
within internal property lines. Waivers could be obtained if adjoining property owners agreed. As
Frederick County changes to a more urban nature in -fill becomes more and more important.
Consider modifying this section to allow reconsider distance between uses and waivers by
adjoiners to promote infill.
Distance buffers have become a form of setbacks impacting the way many properties can be used
and developed. Consider adding a reference to the required buffers that they be placed in the
setback standards.
Distance buffers include landscaping. The landscaping requirements for the number of plants and
spacing need to consider the distance between plants when mature. The current standard appears
to crowd plantings — modify the space requirements to recognize the mature levels of the required
plants and trees.
B. Screening. Screening is designed to work with distance buffers to lessen the impact of noise or visual
interaction between adjacent activities. There are two levels of screening: landscape screening and
full screening. The higher the level of screening provided, the lower the level of distance buffer
required. The example diagrams show how this works.
(1) Landscape screening. A landscape screen consists of a totally landscaped easement at least 10
feet in depth; it is encouraged that the plantings to be spaced appropriately within the inactive
buffer. Within the easement, there shall be a minimum landscaping density of three plants per
10 linear feet. The buffer shall consist of a combination of 1/3 deciduous trees, 1/3 evergreen
trees and 1/3 shrubs. Deciduous trees shall be planted at a minimum of 2" caliper, evergreen
trees shall be a minimum of 4' in height and shrubs shall be 18" in height at time of planting.
(2) Full screen. A full screen provides all the elements of a landscape screen and also includes a six -
foot -high, opaque hedge, fence, wall, mound or berm. A 50 foot strip of mature woodlands may
be allowed as a full screen.
(3) Wherever proposed developments are adjacent to existing uses, the Board of Supervisors may
require additional landscaping or landscaped easements to separate different uses and to
achieve the intentions of this section.
C. Residential separation buffers. Residential separation buffers shall be established to adequately
buffer different housing types from dissimilar housing types within adjacent separate developments.
The requirements for residential separation buffers are as follows:
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Landscaping Revisions - Business Friendly Recommendations
(1) When placed adjacent to one another, developments with different housing types shall provide
the following residential separation buffers:
MINIMUM RESIDENTIAL SEPARATION BUFFER AREA REQUIRED
Proposed Use /Development
Adjoining Existing Use /Development
Inactive (Minimum)
(feet)
1
2
3
4
5
1. Single- family detached
-
-
A
B
B
2. Single- family zero lot line or small lot
-
-
A
B
B
3. Multiplex or townhouse
B
B
-
B
B
4. Garden Apartment or Multifamily
buildings
C
C
B
-
A
5. Age- restricted multifamily
C
C
C
-
-
(2) Buffers shall be placed between the lot line of the proposed housing type and the lot line of the
existing adjoining use or development. When placed on individual lots, the buffer shall be
located within a permanent landscape easement and shall be maintained by the homeowners
association.
(3) When age- restricted multifamily housing adjoins other housing types, the evergreen element of
the residential separation buffer shall be planted at a height of six feet.
(4) When existing mature woodlands are located within the entire buffer area (total distance if
active and inactive buffer), preservation of that woodland will be allowed to substitute for the
required plant material.
(5) Housing types contained within a mixed use development as outlined in the Comprehensive
Plan or developments that contain a mixture of housing types but approved with the same
Master Development Plan shall not require residential separation buffers between housing
types contained within the same development. The Zoning Administrator may require
residential separation buffers when a Master Development Plan is revised and the housing types
are modified after construction has already commenced within the development. Residential
separation buffers shall be required when different housing types are placed adjacent to a
mixed use or Master Planned development or if the development abuts different housing types
within a separate development.
12
BUFFER AREA WIDTH AND PLANT REQUIREMENTS
Type
Inactive (Minimum)
(feet)
Active (Maximum)
(feet)
Total
(feet)
Screen
Type
A
15
10
25
Full Screen
A
30
20
50
Landscape Screen
A
75
25
100
No Screen
B
1 30
20
50
Full Screen
B
45
30
75
Landscape Screen
B
75
25
100
No Screen
C
75
25
100
Full Screen
C
100
50
150
Landscape Screen
C
150
50
200
No Screen
(2) Buffers shall be placed between the lot line of the proposed housing type and the lot line of the
existing adjoining use or development. When placed on individual lots, the buffer shall be
located within a permanent landscape easement and shall be maintained by the homeowners
association.
(3) When age- restricted multifamily housing adjoins other housing types, the evergreen element of
the residential separation buffer shall be planted at a height of six feet.
(4) When existing mature woodlands are located within the entire buffer area (total distance if
active and inactive buffer), preservation of that woodland will be allowed to substitute for the
required plant material.
(5) Housing types contained within a mixed use development as outlined in the Comprehensive
Plan or developments that contain a mixture of housing types but approved with the same
Master Development Plan shall not require residential separation buffers between housing
types contained within the same development. The Zoning Administrator may require
residential separation buffers when a Master Development Plan is revised and the housing types
are modified after construction has already commenced within the development. Residential
separation buffers shall be required when different housing types are placed adjacent to a
mixed use or Master Planned development or if the development abuts different housing types
within a separate development.
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Landscaping Revisions - Business Friendly Recommendations
(6) The Board of Supervisors may waive, reduce and /or modify the residential separation buffer
requirements (distance or landscaping) if the topography of the lot providing the buffer yard
and the lot being protected is such that the required buffer yard would not be effective.
(7) The Board of Supervisors may waive, reduce and /or modify the residential separation buffer
requirements (distance or landscaping) when utility conflicts preclude the installation of the
buffer and would result in unnecessary or otherwise unreasonable hardship to the developer.
D. Zoning district buffers. Buffers shall be placed on land to be developed when it adjoins land in certain
different zoning districts.
(1) Buffers shall be provided on the land to be developed according to the categories in the following
tables:
(a) Buffer categories:
Distance Buffer Required
Category
Screening
Provided
Inactive
(Minimum) (feet)
Active
(Maximum) (feet)
Total
(feet)
A
No screen
25
25
50
B
Full screen
25
25
50
B
Landscape
screen
75
25
100
B
No screen
150
50
200
C
Full screen
75
25
100
C
Landscape
screen
150
50
200
C
No screen
350
50
400
(b) Buffer categories to be provided on land to be developed according to the zoning of the
adjoining land:
Zoning of Adjoining Land
Zoning of
Land to be
Developed
RP
R4
R5
MH1
131
B2
B3
OM
M1
M2
EM
MS
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Landscaping Revisions - Business Friendly Recommendations
RP
-
-
-
-
A
A
A
A
A
A
A
A
R4
-
-
-
-
A
A
A
A
A
A
A
A
R5
-
-
-
-
A
A
A
A
A
A
A
A
MH1
C
C
C
-
B
B
B
B
B
A
A
C
B1
B
B
B
B
-
-
A
A
A
A
A
B
B2
B
B
B
B
-
-
-
A
A
A
A
B
B3
C
C
C
C
B
-
-
-
-
-
-
C
OM
C
C
C
C
B
B
-
-
-
-
-
C
M1
C
C
C
C
B
B
-
-
-
-
-
C
M2
C
C
C
C
B
B
B
B
B
-
-
C
EM
C
C
C
C
B
B
B
B
B
-
-
C
MS
C
C
C
C
B
B
B
B
B
B
C
-
(2) If a lot being developed is adjacent to developed land which would normally be required to be
provided with a buffer but which does not contain the buffer, the required buffer shall be
provided on the lot being developed. The buffer to be provided shall be of the larger category
required on either the lot being developed or the adjacent land. Such buffer shall be in place of
the buffer normally required on the lot being developed. The buffer may include required
setbacks or buffers provided on the adjacent land.
(3) Whenever land is to be developed in the B -1 (Neighborhood, Business) or B -2 (Business, General)
Zoning District that is adjacent to land primarily used for residential use in the RA (Rural Areas)
Zoning District, a B Category buffer shall be provided on the land to be developed. The Board of
Supervisors may grant a waiver to reduce the required buffer distance requirements with the
consent of the adjacent (affected) property owners. Should a waiver be granted by the Board of
Supervisors, the distance requirements of § 165- 203.02D(1)(a) may be reduced, provided the full
screening requirements of this section are met.
(4) Whenever land is to be developed in the B3, OM, M1 or M2 Zoning District that is adjacent to
land primarily used for residential purposes in the RA Rural Areas Zoning District, a C Category
buffer shall be provided on the land to be developed.
(5) Whenever land is to be developed in the MS Zoning District that is adjacent to land primarily used
for residential purposes in the RA (Rural Areas) Zoning District, a C Category buffer shall be
provided on the land to be developed. Whenever land is to be developed in the MS Zoning
District that is adjacent to all other land zoned RA (Rural Areas) Zoning District, the requirements
for buffer and screening shall be provided in accordance with §165- 402.07 of this chapter.
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Landscaping Revisions - Business Friendly Recommendations
(6) The Zoning Administrator may waive any or all of the requirements for the zoning district buffers
on a particular site plan when all uses shown on the site plan are allowed in the zoning district in
which the development is occurring and in the adjoining zoning districts.
(7) The Zoning Administrator may waive, reduce and /or modify buffer yard requirements (distance
and landscaping) if in his opinion the topography of the lot providing the buffer yard and the lot
being protected is such that the required yard would not be effective. The buffer may also be
modified to maintain highway sight distances.
(8) Land proposed to be developed in the OM (Office- Manufacturing Park), the M1 Light Industrial
District and the M2 Industrial General District may be permitted to have a reduced buffer
distance that is consistent with the required side or rear building setback line, provided that the
following requirements are met:
(a) The property to be developed with a reduced buffer distance is part of an approved master
planned industrial park.
(b) There are no primary or accessory uses within the reduced buffer distance area, including
driveways, access drives, outdoor storage areas, parking areas, staging areas, loading areas
and outdoor dumpster areas. All- weather surface fire lanes necessary to meet the
requirements of Chapter 90, Fire Prevention, of the Code of Frederick County, Virginia, shall
be exempt from this performance standard.
(c) A full screen is required to be created within the reduced buffer distance area which shall be
comprised of a continuous earth berm that is six feet higher in elevation than the highest
elevation within the reduced buffer distance area and a double row of evergreen trees that
are a minimum of six feet in height and planted a maximum of eight feet from center to
center.
(9) Proposed developments required to provide buffers and screening as determined by § 165 -
203.02D(1)(b) of this chapter may be permitted to establish a common shared buffer and
screening easement with the adjoining property. The common shared buffer and screening
easement shall include all components of a full screen which shall be clearly indicated on a site
design plan. A legal agreement signed by all appropriate property owners shall be provided to the
Department of Planning and Development and shall be maintained with the approved site design
plan. This agreement shall describe the location of the required buffer within each property, the
number and type of the plantings to be provided and a statement regarding the maintenance
responsibility for this easement. The required buffer distance may be reduced by 50% for a
common shared buffer easement if existing vegetation achieves the functions of a full screen.
(10) When a flex -tech development is split by a zoning district line, the Zoning Administrator may
allow for a reduction of the distance buffer and the relocation of the screening requirements.
Such modifications shall be allowed at the Zoning Administrators discretion, provided that all of
the following conditions are met:
(a) The zoning district boundary line for which the modification is requested is internal to the
land contained within the master development plan.
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Landscaping Revisions - Business Friendly Recommendations
(b) The required landscape screen is relocated to the perimeter of the flex -tech development.
This relocated landscape screen shall contain the same plantings that would have been
required had the screen been placed along the zoning district boundary line.
(11) Whenever land is to be developed in the 131, 132, 133, OM, M1 or M2 Zoning District that is
adjacent to a railroad right -of -way that has property zoned 131, 132, 133, OM, M1 or M2 on the
opposite side, zoning district buffers shall not be required. In the event that residential uses are
located on the opposite side of the railroad right -of -way, a zoning district buffer as required by
§ 165- 203.02D shall be provided. In the event that a zoning district buffer is required, the width
of the railroad right -of -way may be counted towards the required zoning district buffer
distance.
E. Road efficiency buffers.
(1) Road efficiency buffers. The purpose of these requirements are to provide protection for
residential structures from any street classified as a collector road or higher while still
providing an attractive view of the residential neighborhoods from major roadways. It is not
the intent of these regulations to provide uniform linear strips of completely opaque
screening but to provide an attractive view of residential neighborhoods from major streets
and ensure adequate buffering for the residential neighborhood from the street.
Distance Buffer Required
Road Classification
Inactive
(minimum)
(feet)
Active
(maximum)
(feet)
Total
(feet)
Screen
Type
Interstate/ arterial/
limited access
Full- distance buffer
50
50
100
Landscape Screen
Reduced - distance
buffer
40
40
80
Full Screen
Major collector
Full- distance buffer
40
40
80
Landscape Screen
Reduced - distance
buffer
40
10
50
Full Screen
(2) All road efficiency buffers shall begin at the edge of the road right -of -way, with the inactive
portion abutting the road right -of -way. All required elements of the full- distance buffer or the
reduced - distance buffer shall be located within the inactive portion of the road efficiency
buffer. Maintenance of the road efficiency buffer shall be in accordance with § 165-
203.0113(3). The inactive portion of the road efficiency buffer is permitted to count towards
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Landscaping Revisions - Business Friendly Recommendations
the required percentage of common open space; however, no portion of a residential lot shall
be located within the inactive portion of the road efficiency buffer. The active portion of the
road efficiency buffer may be permitted to be located within a residential lot, provided that
the primary structure is not located within the buffer area. Accessory structures may be
located within the active portion of the road efficiency buffer, provided that the structures
meet all applicable setback requirements. Access roads serving as the primary means of
vehicular travel to residential subdivisions are permitted to traverse road efficiency buffers.
(3) All road efficiency buffers shall contain landscaping evergreen trees intended to reach a
minimum height of 20 feet at maturity.
(4) The Zoning Administrator may allow alternative landscaping near entrance drives to ensure
safe sight distances.
(5) The Zoning Administrator may waive, reduce and /or modify the road efficiency buffer yard
requirements if in his opinion the topography of the lot providing the buffer yard and the lot
being protected is such that the required buffer yard would not be effective.
(6) When existing mature woodland, when supplemented by new vegetation if needed, is located
within the entire buffer area and meets the intent of this section, preservation of that
woodland will be allowed to substitute for the required plant material and the opaque
screening.
Business Friendly Suggestions — Road Efficiency Buffers:
Road efficiency buffers need to be clearly identified if they are intended for commercial, industrial
or residential uses.
Staff Note: The ordinance clearly specifies that road efficiency buffers only apply to residential
developments.
17
n 0
Draft Landscaping Revisions - DRRC Recommendations
Part 202 — Off - Street Parking, Loading and Access
§ 165 - 202.01 Off - street parking; parking lots.
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Draft Landscaping Revisions - DRRC Recommendations
Part 203 — Buffers and Landscaping
§ 165 - 203.01 Landscaping requirements.
The requirements of this section are intended to enhance the appearance, environment, and general
welfare of Frederick County by providing minimum landscaping standards and encouraging tree
preservation for developments. The provisions of this section shall apply to all site plan and subdivision
design plan applications, including the revision or expansion of any site or development.
A. Residential Developments and Parking Lots in all Zoning Districts.
(1) Residential developments. Residential developments which require a master development plan,
subdivision design plan or site plan shall provide at least one of the three types of landscaping
identified below.
(a) Street tree landscaping. Street tree landscaping shall require one street tree for every 40 feet of
street frontage in a residential development, with the exception of frontage on roads which
require a road efficiency buffer. Street trees shall be planted no more than 20 feet from rights -
of -way. Planting street trees on the property lines of building lots should be avoided. Two or
more street trees shall be planted on each building lot. The Zoning Administrator may allow
fewer than two street trees for an individual building lot if topographical features, utilities,
easements, or the width of the lot makes it impractical to do so. All street trees shall comply
with the requirements of § 165 - 203.019 C, with the exception that street trees must be at least
two - and - one - half -inch caliper at the time of planting.
(b) Ornamental landscaping.
(i) Ornamental landscaping shall be provided for residential developments based on the
following index and matrix:
Index of Lot Types
Lot Type
Description
A
Single - Family Detached Rural Traditional
B
Single - Family Detached Traditional
C
Single - Family Detached Urban
D
Single - Family Detached Cluster
E
Single - Family Detached Zero Lot Line
PA
Draft Landscaping Revisions - DRRC Recommendations
F
Single - Family Small Lot
G
Multiplex
H
Townhouse, Back -to -Back Townhouse
I
Garden Apartment, Multifamily Residential Buildings
Age Restricted Multifamily Housing
Required Landscaping Per Dwelling Unit
Lot Type
Ornamental Shrubs
Ornamental Trees
A
None
10 per 1 unit
B
10 per 1 unit
5 per 1 unit
C
10 per 1 unit
5 per 1 unit
D
10 per 1 unit
5 per 1 unit
E
10 per 1 unit
5 per 1 unit
F
15 per 1 unit
5 per 1 unit
G
3 per 3 units*
1 per 3 units*
H
6 per 5 units*
2 per 5 units*
1
3 per 2 units*
1 per 2 units*
Note: *Required ornamental trees and shrubs are in addition to all trees and
shrubs elsewhere required in the Zoning Ordinance.
ii Ornamental trees and shrubs shall comply with the requirements of § 165- 203.01B. The
Zoning Administrator may allow some of the required ornamental trees and ornamental
shrubs to be planted in areas of common open space so long as the intent of this section is
met.
(c) Tree preservation landscaping. An area with a tree canopy coverage, of at least 25% of the entire
site area, shall be preserved within dedicated open space. In no case shall individual building lots
be located within the open space. Canopy coverage shall be calculated from the cumulative total
of existing tree canopies. Preserved trees shall be clustered together to maintain a contiguous
canopy; and shall be protected from construction activity. These areas of open space may be
counted towards the total required open space, as specified in § 165- 402.07. Residential
developments which are not required to have open space by § 165- 402.07 are not exempt from
creating open space for the required canopy coverage. The calculation of tree canopy shall be
based on either the individual tree standards of the "Manual of Woody Landscape Plants,"
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Draft Landscaping Revisions - DRRC Recommendations
written by Michael A. Dirr, or through a comprehensive analysis of existing tree drip lines,
conducted by a Virginia certified engineer, land surveyor, or landscape architect.
(2) Parking lots. Parking spaces shared by more than one dwelling or use, required for any use in the
business or industrial zoning district or required for any institutional, commercial or industrial use
in any zoning district shall meet the following requirements:
(a) Landscaping. Parking lots in the RP Residential Performance District, the R4
Residential Planned Community District, the R5 Residential Recreational Community
District, the MH1 Mobile Home Community District, the B1 Neighborhood Business
District, the B2 Business General District, the B3 Industrial Transition District, the OM
Office - Manufacturing Park District, the M1 Light Industrial District, the M2 Industrial
General District, the MS Medical Support District, and the HE (Higher Education)
District shall be landscaped to reduce the visual impact of glare and headlights on
adioining properties and rights -of -way. Parking lots shall be adequately shaded to
reduce reflected heat. In the RA (Rural Areas) District, parking lot landscaping shall
not be required for parking lots with 10 or fewer spaces. Landscaping shall also be
provided to reduce the visual expansiveness of parking lots. Landscaping shall be
provided in such parking lots as follows:
(i) Perimeter landscaping. The perimeter of all impervious areas shall be
landscaped with shade trees and other landscaping. One tree shall be provided
for every 2,000 square feet of impervious area for the first 100,000 square feet of
the entire site. One tree shall be provided for every 5,000 square feet in excess
of the first 100,000 square feet of the entire site. Self- service storage facilities
shall provide one tree per 10,000 square feet of impervious area of the entire
site, in addition to the trees required in § 165 - 204.18, Storage facilities. The
Perimeter landscaping trees shall be reasonably dispersed throughout the
parking lot. A three - foot -high evergreen hedge, fence, berm or wall shall be
provided to prevent headlights from shining on public rights -of -ways and
adioining properties. All perimeter landscaping shall comply with the
requirements of §165 - 203.018, Plant selection, planting procedure and
maintenance.
ii) Interior landscapina. A minimum of 5% of the interior portions of parkina lots
shall be landscaped for the purpose of providing shade trees. Such interior
landscaping shall be provided on raised islands and in continuous raised strips
extending the length of a parking bay. Within the parking lot, raised islands and
landscaped areas should be uses to delineate traffic and pedestrian circulation
patterns. No less than one shade tree shall be provided in the interior of the
parking lot for each 10 parking spaces. The Zoning Administrator may waive the
requirement for interior landscaping for parcels located outside of the Sewer and
Water Service Area when curb and gutter is not proposed. The Zoning
Administrator may approve alternative locations for interior landscaping for
Draft Landscaping Revisions - DRRC Recommendations
parking lots used for truck parking, as well as other parking lots, when it would
improve the overall quality of the landscape plan. All interior landscaping shall
comply with the requirements of 4 165 - 203.018, Plant selection, planting
procedure and maintenance.
B. Plant selection, planting procedure, and maintenance.
(1) Plant selection. Based on the type of landscaping, required trees and shrubs shall be selected
from the table of acceptable trees and shrubs shown below.
Types of Landscaping
Street tree landscaping (street) Ornamental landscaping (ornamental) Tree preservation landscaping
(canopy) Interior and perimeter landscaping (shade), Buffer screening and parking lot screening (screen),
Deciduous buffer element (street, canopy, shade), buffer shrub element (shrub or screen)
Acceptable Trees and Shrubs
Types of Landscaping
Common Name
Scientific Name
Permitted
Amur Maple
Acer ginnala
Street, shade, canopy,
ornamental
European Hornbeam
Carpinus betulus
Street, shade, canopy,
ornamental
Hop Hornbeam
Ostrya virginiana
Street, shade, canopy,
ornamental
Katsura Tree
Cercidiphyllum japonicum
Street, shade, canopy,
ornamental
Ginkgo (male)
Ginkgo biloba
Street, shade, canopy,
ornamental
Thornless Honey Locust
Gleditsia triacanthos inermis
Street, shade, canopy,
ornamental
Golden -Rain Tree
Koelreuteria paniculata
Street, shade, canopy,
ornamental
Flowering Crabapple
Malus (disease resistant varieties)
Street, shade, canopy,
ornamental
Chinese Pistache
Pistacia chinensis
Street, shade, canopy,
ornamental
Draft Landscaping Revisions - DRRC Recommendations
Linden
Tilia (all varities)
Street, shade, canopy,
ornamental
Lacebark Elm
Ulmus parvifolia
Street, shade, canopy,
ornamental
Japanese Zelkova
Zelkova serrata
Street, shade, canopy,
ornamental
Red Oak
Quercus rubra
Street, shade, canopy,
ornamental
White Oak
Quercus alba
Street, shade, canopy,
ornamental
Scarlet Oak
Quercus coccinea
Street, shade, canopy,
ornamental
Sawtooth Oak
Quercus acutissima
Street, shade, canopy,
ornamental
Kentucky Coffeetree
Gymnocladus diocus
Street, shade, canopy,
ornamental
Dawn Redwood
Metasequoia glyptostroboides
Street, shade, canopy
Swamp Chestnut Oak
Quercus michauxii
Street, shade, canopy
Willow Oak
Quercus phellos
Shade, canopy, ornamental
Bald Cypress
Taxodium distichum
Street, shade, canopy
Red Maple
Acer rubrum
Shade, canopy, ornamental
Freeman Maple
Acer freemanii
Shade, canopy, ornamental
Sugar Maple
Acer saccharum
Shade, canopy, ornamental
Paperbark Maple
Acer griseum
Shade, canopy, ornamental
American Sycamore
Platanus occidentallis
Shade, canopy, ornamental
London Plane Tree
Platanus acerifolia
Shade, canopy, ornamental
Sweetgum
Liquidambar styraciflua
Shade, canopy, ornamental
Copper Beech
Fagus sylvatica 'Riversii'
Shade, canopy, ornamental
Weeping Beech
Fagus pendula
Shade, canopy, ornamental
Draft Landscaping Revisions - DRRC Recommendations
European Beech
Fagus sylvatica
Shade, canopy, ornamental
River Birch
Betula nigra
Shade, canopy, ornamental
Star Magnolia
Magnolia stellata
Shade, canopy, ornamental
Saucer Magnolia
Magnolia x soulangiana
Shade, canopy, ornamental
Black Gum
Nyssa sylvatica
Shade, canopy, ornamental
Yellowwood
Cladrastis kentukea
Shade, canopy, ornamental
Downy Serviceberry
Amelanchier arborea
Shade, canopy, ornamental
Hawthorn
Crataegus plaenopyrum, Crataegus
viridis
Shade, canopy, ornamental
Sourwood
Oxydendrum arboreum
Shade, canopy, ornamental
Tuliptree
Liriodendron tulipifera
Shade, canopy, ornamental
Paw Paw
Asimina triloba
Shade, canopy, ornamental
Dogwood
Cornus florida, Cornus kousa, Cornus
hybrid
Shade, ornamental
Flowering Cherry
Prunus (all varieties of Flowering
Cherry)
Shade, ornamental
Cornelian Cherry
Cornus mas
Shade, ornamental
Eastern Redbud
Cercis canadensis
Shade, ornamental
American Plum
Prunus americana
Shade, ornamental
Japanese Maple
Acer palmatum
Shade, ornamental
Douglas Fir
Pseudotsuga menziesii
Screen, ornamental
White Fir
Abies concolor
Screen, ornamental
Spruce
Picea (all varieties)
Screen, ornamental
Japanese Umbrella Pine
Sciadopitys verticillata
Screen, ornamental
Hinoki False Cypress
Chamaecyparis obtusa
Screen, ornamental
White Pine
Pinus strobus
Screen, canopy
Draft Landscaping Revisions - DRRC Recommendations
Western Arborvitae
Thuja plicata
Screen, ornamental
Eastern Arborvitae
Thuja occidentalis (all varieties)
Screen, ornamental
Leyland Cypress
Cupressocyparis x leylandi
Screen, ornamental
Japanese Cedar
Cryptomeria japonica
Screen, ornamental
Viburnum (Evergreen)
(all evergreen /semi- evergreen
varieties)
Screen, ornamental, shrub
Yew
Taxus (all varieties)
Screen, ornamental, shrub
Holly
Ilex (all varieties)
Screen, ornamental, shrub
Common Boxwood
Buxus sempervirens
Screen, ornamental, shrub
Juniper
Juniperus (all varieties)
Screen, ornamental, shrub
Abelia
(All varieties)
Screen, ornamental, shrub
Witchhazel
Hamamelis vernalis
Ornamental, shrub
White Fringetree
Chionanthus virginicus
Ornamental, shrub
Slender Deutzia
Deutzia gracilis
Ornamental, shrub
Althea
Hibiscus syriacus
Ornamental, shrub
Vicary privet
Ligustrum x vicaryi
Ornamental, shrub
Sweet Mockorange
Philadelphus coronarius
Ornamental, shrub
Japanese pieris
Pieris japonica
Ornamental, shrub
Cotoneaster
(All varieties)
Ornamental, shrub
Spirea
(All varieties)
Ornamental, shrub
Weigela
(All varieties)
Ornamental, shrub
Forsythia
(All varieties)
Ornamental, shrub
Dwarf Fothergilla
Fothergilla gardenii
Ornamental, shrub
Buttonbush
Cephalanthus occidentalis
Ornamental, shrub
Japanese pagodatree
Sophora japonica
Ornamental, shrub
Draft Landscaping Revisions - DRRC Recommendations
Chastetree
Vitex agnus - castus
Ornamental, shrub
Standard Nandina
Nandina domestica
Ornamental, shrub
Purple Plum
Prunus cerasifera
Ornamental
Crape Myrtle
Lagerstroemia indica
Ornamental
Persian parrotia
Parrotia persica
ornamental
Hydrangea
(all varieties)
Ornamental
Mugo pine
Pinus mugo
Ornamental
Itea
(All varieties)
Ornamental
Aronia
(All varieties)
Ornamental
Clethra
(All varieties)
Ornamental
Azalea
Rhododendron (All varieties)
Ornamental
Rhododendron
(All varieties)
Ornamental
Northern Bayberry
Myrica pensylvanica
Ornamental
Meyer Lilac
Syringa meyeri 'Palibin'
Ornamental
(2) Planting procedure. All required trees and shrubs shall meet the specifications and procedures
established by the American Nursery and Landscape Association.
a) All trees shall be planted no closer than three feet to the edge of sidewalks, curb or other
pavement.
b) Deciduous trees shall be a minimum of two -inch caliper at the time of planning.
c) Only single stem trees shall be planted as street trees.
d) Evergreen trees shall be a minimum of four feet in height at the time of planting. Shrubs
shall be a minimum three - gallon container at the time of planting. In addition to the three -
gallon container requirement, parking lot screening shrubs shall be a minimum of 36" in
height at time of planting and buffer shrubs shall be a minimum of 18" in height at time of
planting. Spacing of parking lot screening shrubs shall be no greater than four (4) feet on
center.
e) Only trees having a mature height of less than 20 feet shall be located under overhead
utility lines.
f) Measurement of Size. Caliper is measured six (6) inches above the ground up to and
including four (4) inch caliper size, and twelve (12) inches above the ground for larger sizes.
Diameter at breast height (dbh) will be measured at the height of 54 inches from the base
of the trunk or as otherwise allowed in the Guide for Plant Appraisal.
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Draft Landscaping Revisions - DRRC Recommendations
(3) Maintenance. The owner, developer, and /or builder who is responsible for planting required
landscaping shall be responsible for maintaining it in a state of good health for one year after
planting. After one year, from the date occupancy is approved, the individual property owner
and /or homeowner's association shall become responsible for maintenance. As long as the intent
of this section is met, the Zoning Administrator may waive the requirement for landscaping on
individual building lots when a hazard or nuisance exists.
C. Existing tree credits. If the intent of § 165- 203.01 is satisfied, including species type and location,
existing trees that are preserved may be counted towards the total number of required trees for
residential developments. Commercial and industrial developments may utilize existing tree credits
when calculating the required number of parking lot trees, as required in § 1 65 292
203.01(A), if the preserved trees are shown on an approved site plan and serve the intent of interior
and perimeter landscaping. The following table shows the credit given for each preserved tree, based
on the tree's caliper:
Caliper (inches)
Tree Credit
4to6
1
7to12
2
13 to 18
3
19 to 29
4
Greater than 30
5
D. Enforcement procedures. The Zoning Administrator may require a bond with surety or other
acceptable guaranties to insure the completion of required improvements. Such guaranties shall be
in the estimated amount of the required improvements. Such guaranties shall be for a period of
completion set by the Zoning Administrator with consultation with the applicant. Such guaranties
shall be released when the required improvements have been completed.
ARTICLE I
GENERAL PROVISIONS, AMENDMENTS, AND CONDITIONAL USE PERMITS
§ 165 - 101.02 Definitions & word usage.
SITE PLAN - A s peeifie @Ad detai plan of development which contains detailed engineering drawings
of the proposed uses and improvements required in the development of a given parcel or use e#
de� meet th- . eq�e+�e.atsof this- ehapte.. In all Articles of this Chapter, where the term
'site plan' is used, it shall also include the term 'minor site plan'.
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Draft Landscaping Revisions - DRRC Recommendations
ARTICLE VIII
DEVELOPMENT PLANS AND APPROVALS
§ 165 - 802.03 Site plan contents.
The site plan shall be clearly legible and shall be drawn at a scale acceptable to the Zoning
Administrator. The site plan shall include three general sections, the project information section, the
calculations section, and the site plan and details section. The information required for each section is
listed below:
A. Project information section.
(1) A title that includes the name of the proposed or existing business and a subtitle which describes
the proposed development.
(2) The name, address, and phone number of the landowner, developer, and designer.
(3) The Frederick County Property Identification Number (PIN) of all lots included on the site plan.
(4) The number and type of dwelling units included on the site plan for residential uses.
(5) The total land area and total developed land area of all lots included on the site plan.
(6) A detailed description of the proposed use or uses of the development, as well as a description of
the existing use or uses.
(7) A reference to any other site plan or master development plan approved by the County for the
site.
(8) The date the site plan was prepared and a list of all revisions made, including the date and a
description of why the site plan was revised.
(9) A table of contents including all pages of the site plan.
(10) A list of all proposed utility providers, with their address, name and phone number.
(11) An inset map showing the location of the site, along with the location of streets, roads and land
uses within 500 feet of the property.
(12) A statement listing all requirements and conditions placed on the land included in the site plan
resulting from approval of conditional zoning or a conditional use permit.
(13) A description of setbacks or conditions placed on the site as a result of an approved variance.
(14) The name of the Magisterial District within which property is located.
B. Calculations section.
(1) Calculations showing the floor area ration (FAR) of the site, including the maximum allowed FAR,
total ground floor area, total floor area, and total lot area.
(2) Calculations showing the total number of required and proposed parking spaces, including the
total number of existing and proposed spaces.
(3) Calculations showing the total number of required handicap spaces, including the total number of
existing and proposed spaces.
(4) Calculations showing the total number of required loading spaces, including the total number of
existing and proposed spaces.
(5) Calculations showing the total number of required perimeter and interior trees required,
including the number of provided trees.
(6) Calculations showing the percentage of the property that will be landscaped and the percentage
of woodlands disturbed.
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Draft Landscaping Revisions - DRRC Recommendations
C. Site plan and details section.
(1) The location of all adjoining lots with the owner's name, specific use, zoning, and zoning
boundaries shown.
(2) The location of all existing or planned rights -of -way and easements that adjoin the property, with
street names, widths, and speed limits shown.
(3) All nearby entrances that are within 200 feet of any existing or proposed entrances to the site.
(4) All existing and proposed driveways, parking and loading spaces, parking lots and a description of
surfacing material and construction details to be used. The size and angle of parking spaces,
aisles, maneuvering areas, and loading spaces shall be shown.
(5) A North arrow.
(6) A graphic scale and statement of scale.
(7) A legend describing all symbols and other features that need description.
(8) A boundary survey of the entire parcel and all lots included with distances described at least to
the nearest hundredth of a foot.
(9) The present zoning of all portions of the site, with the location of zoning boundaries.
(10) The location of all existing and proposed structures, with the height, specific use, ground floor
area, and total floor area labeled.
(11) The location of all existing and proposed outdoor uses, with the height, specific use, and land
area labeled.
(12) Existing topographic contour lines at intervals acceptable to the Zoning Administrator. Proposed
finished grades shall be shown by contour.
(13) The location of the front, side, and rear yard setback lines required by the applicable zoning
district.
(14) The location and boundaries of existing environmental features, including streams, floodplains,
lakes and ponds, wetlands, natural stormwater retention areas, steep slopes, and woodlands.
(15) The location of outdoor trash receptacles.
(16) The location of all outdoor lighting fixtures.
(17) The location, dimensions, and height of all signs.
(18) The location of required buffers, landscaping buffers, and landscaped screens, including
examples, typical cross sections or diagrams of screening to be used. The location and
dimensions of required fencing, berms, and similar features shall be specified.
(19) The location of recreational areas and common open space.
(20) The location of all proposed landscaping with a legend; the caliper, scientific name, and
common name of all deciduous trees; the height at planting, scientific name, and common name
of all evergreen trees and shrubs.
(21) The height at planting, caliper, scientific name, and common name shall be provided for all
proposed trees. The height at planting, scientific name and common name shall be provided for
all shrubs.
(22) The location of sidewalks and walkways.
(23) The location and width of proposed easements and dedications.
(24) A stormwater management plan describing the location of all stormwater management facilities
with design calculations and details.
(25) A soil erosion and sedimentation plan describing methods to be used.
(26) The location and size of sewer and water mains and laterals serving the site.
(27) Facilities necessary to meet the requirements of the Fire Code.
(28) A signed seal of the certified Virginia land surveyor, architect, or engineer who prepared the
plan.
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Draft Landscaping Revisions - DRRC Recommendations
(29) A space labeled "Approved by the Frederick County Zoning Administrator" for the signature of
the Zoning Administrator, approval date, and a statement that reads "site plan valid for five years
from approval date."
D. Minor Site Plans. A minor site plan may be submitted in lieu of a full site plan for additions to
existing sites. A minor site plan shall constitute a revision that increases an existing structure area
bV 20% or less and does not exceed 5,000 square feet of disturbed area. Minor site plans, at a
minimum shall include the following information:
(1) A title that includes the name of the proposed or existing business and a subtitle which
describes the proposed development.
(2) The name, address, and phone number of the landowner, developer, and designer.
(3) The Frederick County Property Identification Number (PIN) of all lots included on the site plan.
(4) The total land area and total developed land area of all lots included on the site plan.
(5) A detailed description of the proposed use or uses of the development, as well as a description
of the existing use or uses.
(6) A reference to any other site plan or master development plan approved by the County for the
site.
(7) The date the site plan was prepared and a list of all revisions made, including the date and a
description of why the site plan was revised.
(8) A table of contents including all pages of the site plan.
(9) An inset map showing the location of the site, along with the location of streets, roads and land
uses within 500 feet of the property.
(10) A statement listing all requirements and conditions placed on the land included in the site plan
resulting from approval of conditional zoning or a conditional use permit.
(11) A description of setbacks or conditions placed on the site as a result of an approved variance.
(12) The name of the Magisterial District within which property is located.
(13) Calculations showing the total number of required and proposed parking and loading spaces,
including the total number of existing and proposed spaces.
(14) Calculations showing the total number of required perimeter and interior trees required,
including the number of provided trees. The Zoning Administrator shall determine the number
of landscaping plants required, proportional to the additions shown on the minor site plan.
(15) A signed seal of the certified Virginia land surveyor, architect, or engineer who prepared the
plan.
(16) Any other information determined bV the Zoning Administrator necessary for the review of the
minor site plan.
(17) The Zoning Administrator may eliminate any of the above requirements on a minor site plan, if
it is determined not to be warranted.
-14. E. Other information or statements may be required on the site plan by the Zoning Administrator to
ensure that all requirements of the Frederick County Code are met.
€. F. All site plans shall conform with master development plans that have been approved for the land
in question.
.9. G. When required, deed restrictions, deeds of dedication, agreements, contracts, guaranties or other
materials shall be submitted with the site plan.
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Draft Landscaping Revisions - DRRC Recommendations
§ 165 - 802.04 Required improvements.
A. All improvements and construction on the site shall conform with the approved site plan and the
requirements of the Frederick County Code.
B. The Zoning Administrator may require a bond with surety or other acceptable guaranties to insure
the completion of required improvements. Such guaranties shall be in the estimated amount of the
required improvements. Such guaranties shall be for a period of completion set by the Zoning
Administrator with consultation with the applicant. Such guaranties shall be released when the
required improvements have been completed.
14
X n
OR
DRRC Meeting — 01/23/2014
Members present: Greg Unger, Jay Banks, Kevin Kenney, Larry Ambrogi, Tim Stowe, Dwight
Shenk, June Wilmot
Absent: Whit Wagner, Gary Oates, Eric Lowman, Roger Thomas
Staff: Candice Perkins
Item 1: Election of Chairman and Vice Chairman. Greg Unger was reelected chairman and
Kevin Kenney was reelected vice chairman.
Item 2: Landscaping Requirements. Continued discussion on potential revisions to the
landscaping requirements contained in the Zoning Ordinance pursuant to the Business Friendly
Committee recommendations.
Staff stated that the text from the suggested change memo was inserted into the current
landscaping requirements so that each suggestion could be seen in context with the current
ordinance. The DRRC acknowledged that the landscaping requirements were recently discussed
by the DRRC and a number of changes were made and that those changes were adopted by the
Board in January of 2013.
• The DRRC acknowledged that the landscaping requirements should be contained in one
section and suggested the parking lot landscaping be moved to the overall landscaping
section. Staff stated that they would make this change and bring it back to the
committee at their next meeting.
• The suggestion that tree maturity be acknowledged was questioned. The committee
stated that most trees used for landscaping don't grow to their maturity height (removal
by owner, topping, dying out). Looking at the mature height reduces the number of
trees a site would reduce the landscaping up front, but wouldn't provide adequate
buffers for neighbors or parking lot shading.
• The DRRC stated that the ordinance already clearly differentiates between residential
and commercial sites in regards to the landscaping requirements and no changes are
necessary.
• The DRRC was satisfied with the current on lot landscaping and acknowledged that the
Rural Areas landscaping requirement was removed a number of years ago.
• The DRRC stated that a Tree Commission is usually something a larger locality or city
would have and that adding one would only create another hurdle for development.
• The DRRC discussed tree preservation and stated that it is a landscaping option (you can
preserve or remove and replant).
• The DRRC discussed the buffers and the comment about infill. The committee was
satisfied with the current requirements and stated that infill should be cohesive with
adjacent uses or else they need to provide buffers.
1
Item 3: Master Development Plans. Continued discussion on potential revisions to the Master
Development Plan requirements contained in the Zoning Ordinance pursuant to the Business
Friendly Committee recommendations.
Staff stated that at the DRRC's October meeting the committee wanted to see an additional
waiver added to the MDP requirements that allowed an applicant to process a detailed site
plan in lieu of a MDP. Staff stated that text stating "A MDP may also be waived if the applicant
chooses to process a site plan in lieu of a MDP. The site plan must contain all information
generally required on a MDP and a site plan. Once the site plan is in an administratively
approvable form the plan will be presented to the Planning Commission and the Board of
Supervisors per § 165 - 801.06." was added to all zoning districts. The DRRC was satisfied with
the changes and sent the revision forward for discussion by the Planning Commission.
Item 4: Height Exemptions. Discussion on potential revisions to the allowances for exemptions
to the structure height maximums currently contained in the Zoning Ordinance.
Staff stated that in September of 2013 the DRRC discussed EM and M1 /M2 Height increases
and forwarded recommendations to the Board of Supervisors. Ultimately the Board approved
height waivers in those districts, but directed the DRRC to review the existing height exceptions
for possible eliminations. The Board of Supervisors felt that some of the existing exceptions
should be removed and the items be brought forward as waivers.
Committee members asked if there were corresponding definitions for the items specified in
the height exemptions. Staff stated that some were defined and others were not. The
committee expressed confusion over certain exemptions and wanted staff to provide
definitions for all items and bring the text back to the DRRC at a later meeting.
Item 5: Floodplain Overlay District. Discussion on revisions to Part 702 of the Frederick County
Zoning Ordinance, Floodplain Districts.
Staff stated that this change to the floodplain overlay districts was in response to the Virginia
Department of Conservation and Recreation changing their model floodplain ordinance. Those
changes resulted in necessary revisions to the County's ordinance to meet the minimum
regulatory standards required in a fully compliant floodplain ordinance. The DRRC
acknowledged the changes and understood that this was a necessary change to be compliant.
The committee had no changes and sent the amendments forward for discussion by the
Planning Commission.
Other: The commission requested to look at outdoor storage requirements in industrial parks
on their work program.
2
DRRC Meeting — 02/27/2014
Members present: Greg Unger, Kevin Kenney, Larry Ambrogi, Tim Stowe, Dwight Shenk, Whit
Wagner, Gary Oates, Eric Lowman
Absent: June Wilmot, Jay Banks, Roger Thomas
Staff: Candice Perkins
Item 1: Landscaping Requirements. Continued discussion on potential revisions to the
landscaping requirements contained in the Zoning Ordinance pursuant to the Business Friendly
Committee recommendations.
Staff stated that the DRRC discussed the landscaping ordinance at the October 2013 and
January 2014 ordinance. At the January meeting the DRRC recommended that the parking lot
landscaping section be relocated to the primary landscaping section. The DRRC was satisfied
with the presented ordinance amendment and sent it forward for discussion by the Planning
Commission.
Item 2: Height Exemptions. Continued discussion on potential revisions to the allowances for
exemptions to the structure height maximums currently contained in the Zoning Ordinance.
Staff stated that at the DRRC's January meeting, potential revisions to the current height
exceptions were discussed. Ultimately the DRRC had concerns with many of the exemptions
and requested additional information. Staff stated that definitions for each item in the height
exemption list have been provided.
• The committee wanted different sections for agricultural barns and silos and industrial
silos
• The committee wanted to see regaining walls possibly added as an exemption
• The committee was concerned about height exemptions being allowed within the
Airport Support Area.
• The committee wanted to see parapet walls higher if they are needed to provide
screening for mechanical equipment.
1
MEETING MINUTES
OF THE
DEVELOPMENT REVIEW AND REGULATIONS COMMITTEE (DRRC)
Held in the First Floor Conference Room of the Frederick County Administration Building, 107 N. Kent
Street, Winchester, Virginia, on April 24, 2014.
DRRC MEMBERS PRESENT Greg Unger, Whitt Wagner, Tim Stowe, Kevin Kenney, Jay Banks, June
Wilmot, Gary Oats, Larry Ambrogi, Eric Lowman, Dwight Schenk
DRRC MEMBERS ABSENT Roger Thomas
STAFF PRESENT Candice Perkins
OTHERS PRESENT John Goode, Bruce Carpenter, Ty Lawson
CALL TO ORDER
The Development Review and Regulations Committee (DRRC) meeting was called to order at
7:00 p.m.
Item 1: Landscaping Requirements. Continued discussion on potential revisions to the landscaping
requirements contained in the Zoning Ordinance pursuant to the Business Friendly Committee
recommendations.
Staff provided an overview and turned the meeting over to John Goode who was a member of the
Business Friendly Committee (land use). Mr. Goode stated that landscaping is cosmetic and that it's
hard to put the requirement into an ordinance. Homeowners aren't subjected to this requirement, only
business owners. He further stated that he has never seen public support for landscaping. The
ordinance isn't flexible enough, if you have a small site change you may have to upgrade an entire site.
The requirements only benefit landscapers, not property owners. Property owners have to cram in
trees to get a specific required number and the ordinance assumes that business owners will not make
their site look good. Mr. Goode stated that business owners should be able to choose their own
landscaping; should be a private issue and covered under the covenants or left up to the owner. Need
to stop debating over beauty and eliminate the entire ordinance. Ty Lawson stated that the Business
Friendly Committee stated that the entire landscaping ordinance should be rescinded. Owners should be
able to do whatever they want. At the end of the day the committee stated that the ordinance went too
far. Bruce Carpenter - by putting requirements in by number instead of quality you don't wind up with a
good project. When doing an expansion the upgrades should be proportional to the expansion.
Page 1
Development Review and Regulations Committee (DRRC)
Meeting Minutes
April 24, 2014
DRRC committee members stated that the County can't legislate the individual values of business
owners, and that the ordinance can only provide a minimum. Mr. Wagner stated that new security
requirements for industrial properties can sometimes be counterproductive to the landscaping
ordinance and that snow removal can be an issue. On the other hand the County is getting new
stormwater regulations that are going to require more pervious area. The new stormwater regulations
are going to require more plants and infiltration. The committee stated that they understood where the
business friendly group is coming from, but the DRRC has a challenge.
DRRC committee members questioned whether or not property owners would plant landscaping if it
were not required by ordinance. If the ordinance didn't place any restrictions, you don't know what you
will get; you need some type of continuity and aesthetics. Also, buffers are necessary to protect
adjacent land owners. It was also stated that Frederick County's ordinance is much easier to understand
and requires far fewer plantings than other localities. Mr. Oates stated that he had not encountered a
site where the plants didn't fit. Mr. Banks further stated that there is enough space on sites to
accommodate trees and shrubs and regarding damage to plants, that's an issue with poor placement of
the plants. Moving shrubs and trees back from the curb is will eliminate plants being damaged because
of snow removal equipment. Poor placement seems to be the issue, the cost isn't that much.
Landscaping is pennies compared to the total site work and the DRRC questioned why the Business
Friendly Committee didn't look at pavement and curb and other site work that constitute the majority of
the site cost. The DRRC requested staff to look at a proportional upgrade waiver; sites that are
increasing 10 -20 percent may request a waiver of the landscaping requirements. It was further stated
that that trees aren't simply provided for aesthetic reasons; they help shade parking which is necessary
because of the heat that comes off them and the air pollution that comes from that.
The DRRC questioned whether the Business Friendly Committee was primarily concerned about
residential or commercial /industrial. Mr. Lawson replied that they also wanted to eliminate all
residential landscaping requirements. He further stated that it isn't about trying to save money; it's
about trying to deliver a quality product. Mr. Lawson stated that home builders are already going above
the ordinance and therefore minimums are unnecessary. DRRC members stated that residential
builders will cut costs where they can and providing flexibility can be a slippery slope and that the
ordinance needs to have minimum standards.
DRRC members acknowledged that the landscaping costs for commercial and residential are different.
Commercial landscaping is much more expensive because of the amount of damage that can occur;
however, business budget for repair and replacement of the landscaping.
Page 2
Development Review and Regulations Committee (DRRC)
Meeting Minutes
April 24, 2014
The DRRC requested time to think about the existing ordinance and would meet further discuss the
ordinance at the next meeting. The DRRC stated that while changes may be appropriate, minimums are
necessary. The DRRC will further discuss waiver options at the next meeting.
Next meeting of the DRRC is May 22, 2014
The meeting adjourned at 8:30 p.m.
Page 3
Development Review and Regulations Committee (DRRC)
Meeting Minutes
April 24, 2014
MEMORANDUM
TO:
Board of Supervisors
FROM:
Jay E. Tibbs, Deputy County Administrator
Roderick B. Williams, County Attorney
SUBJECT:
Conflict of Interest Act Changes
DATE:
October 27, 2014
Attached for your information, please find a copy of the 2014 -2015 edition of Virginia
Freedom of Information Act, Virginia Conflict of Interest Act, and the Virginia Public
Records Act Guide for Local Government Leaders. A copy of these documents is being
provided to you for your information and reference.
The 2014 General Assembly passed the Ethics Reform Bill (i.e. HB 1211 and SB 649), which
made changes to the Conflict of Interests Act (COLA). The changes that most directly affect
board members pertain to personal interests, gifts, and disclosures.
Personal Interests
Under the previous version of the COLA, board members were required to disclose personal
interests valued at $10,000 or more per year. Under the 2014 legislation, the amount
requiring reporting has been reduced to $5,000. This new reporting requirement applies to
salary earned from a business and the value of an ownership interest. In addition, this
$5,000 limit applies to personal liabilities, which includes money owed to a bank or a creditor
for such things as student loans and /or credit card debt. You are not required to report
debts owed to any government, car loans, or mortgages.
In addition to the changes to the disclosure amount, the definition of immediate family has
been modified. The current definition still includes spouse, but is now limited to a "child
who resides in the same household who is a dependent of the officer/ employee." The old
provision was very broad in definition and applied to "any other person" residing in the
house and who was a dependent. The new language limits the definition of immediate
family and applicability of this provision for reporting purposes.
Gifts
Gifts have been redefined into two categories — tangible gifts and intangible gifts. Tangible
gifts are defined as gifts that do not lose their value upon the happening of an event or a
given date (e.g. clothing, artwork, etc.). Tangible gifts are capped at $250 per gift or
cumulatively per calendar year from lobbyists, lobbyists' principals, and people /entities with
a contract or seeking a contract with an official's locality. Exceptions to these rules include:
- Campaign contributions reported as such.
- Gifts related to the private profession of the official/ employee.
- Gifts from relatives and personal friends. For purposes of this article, relatives are
defined as spouse, child, uncle, aunt, niece, nephew, fiance, parent, grandparent,
grandchild, brother, sister, and their spouses. There is a note ofcaution with this
exemption. If the personal friend is a lobbyist, lobbyist's principal, or is
seeking a contract with the agency then this exception does not apply and the
,$2501imit applies to the gift.
- Honorary degree or need, athletic or merit based scholarship or aid, if the procedures
for obtaining are applicable to the general public.
Certain reporting requirements apply to tangible gifts. Intangible gifts are defined as things
of a temporary value or that upon the happening of an event lose their value. Examples
include trips, entertainment, lodging, meals, or transportation. There are no limits on
intangible gifts, but the reporting requirements apply. Reportable gifts are to be reported on
the Statement of Economic Interests.
Disclosures
There are new rules governing the filing of the Statement of Economic Interests forms.
Previously these forms were filed annually with the Clerk of the governing body. Under the
changes to the COLA, you will make the 2014 filing in December with the Clerk of the
governing body. Beginning in 2015, those officers required to file the Statement of
Economic Interests forms will file semi - annually, June 15 and December 15 for the
preceding six months.
Beginning July 1, 2015, the Statement of Economic Interests forms are to be filed with the
Conflict of Interest and Ethics Advisory Council. By December 15, 2015 these forms will be
filed electronically with this agency.
There are new reporting rules for the Statement of Economic Interests forms. You must
disclose payments, that combined, exceed $200 for registration, lodging, meals,
transportation, or other payments for attending any meetings, conferences, or events, if
attendance educates or enhances the knowledge and skill of attendees on matters related to
their role in the government agency. These payments should be listed on Schedule D,
except if the payments are made by the government agency. If the government agency pays
then only payments for out of state events must be listed. If the event has no educational
value then it must be listed as a gift.
The official must disclose gifts to the official and gifts to members of the official's
immediate family when their value exceeds $50 each or the total value exceeds $100. If the
gift falls into one of the exceptions listed above then no reporting is required. Again the
exceptions apply to campaign contributions, gifts related to the official's private profession,
gifts from relatives, and gifts from personal friends. However, if the personal friend is a
lobbyist or a lobbyist's principal or an entity that has or is seeking a contract with the
government agency, you cannot use the personal friend exemption.
We are providing this memo to you as a means of highlighting some of the changes to the
Conflict of Interest Act and filing requirements. The entirety of the act has been included in
the attachment for your additional reference.
Should you have any questions, please do not hesitate to contact us.
Virginia Freedom of Information Act,
Virginia Conflict of Interest Act
and the
Virginia Public Records Act
2014 -2015 Edition
Guide for Local Government Leaders
VIRGINIA MUNICIPAL LEAGUE
July 2014
1 2014 -2015 Virginia Freedom of ' Information Act I Conflict of ' Interests Act I Virginia Public Records Act
Introduction
July 2014
THIS UPDATED GUIDE IS DESIGNED to help
local government officials understand their responsibili-
ties under the Virginia Freedom of Information Act
(FOIA), Virginia Conflict of Interests Act (COIA) and
Virginia Public Records Act.
Each of the acts requires council members and cer-
tain other elected and appointed officials to read and
familiarize themselves with the three sets of laws.
This 2014 Virginia Municipal League publication
explains all three laws in non -legal terms as much as
possible. It is not written for lawyers, though we hope it
will be useful for attorneys, too.
VML appreciates the contributions of Roger Wiley
and Jeff Gore of the law firm Hefty & Wiley, P.C. in
Richmond for writing the chapter on the Public Re-
cords Act. Contact Roger at: roger @heftywiley.com or
804/780 -3143.
Updates throughout this publication, including
those explaining changes in the law made by the 2014
Table of contents
General Assembly, were written by
VML legal intern Emma Buck, a
third year student at the T.C. Wil-
liams School of Law at the Univer-
sity of Richmond.
If you have questions about
these laws or comments about this
publication, contact Mark Flynn,
VML general counsel, at: 804/523-
8525 or mflynn @vml.org. Mark Flynn
While FOIA and COIA constitute a large part of
the rules of conduct for state and local government
officials, local officials might also want to consult a pub-
lication produced by VML and George Mason Uni-
versity on ethical conduct. The Ethical CPS, Navigating
Everyday Dilemmas is a comprehensive guide to ethics.
VML encourages city and town council members to
consult it when questions arise about the propriety of a
course of action.
Freedom of Information Act explanation ......................................................................... ............................... 3
Freedomof Information Act text .................................................................................... ............................... 17
Conflict of Interest Act explanation ................................................................................ ............................... 53
Conflictof Interest Act text ............................................................................................. ............................... 63
PublicRecords Act explanation ........................................................................................ .............................99
PublicRecords Act text ................................................................................................ ............................... 103
2 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
Virginia Freedom of
Information Act
Guide for Local Government Officials
Introduction
The Virginia Freedom of Information Act was
enacted by the General Assembly in 1968. In the years
since, the law has undergone major revisions and has
been modified annually to address new situations. The
2014 version of the act is included following this section
of the guide.
Local public officials are required to read and
familiarize themselves with the law. § 2.2- 3702(ii). This
guide provides useful assistance in meeting that obliga-
tion. Many provisions of the act address state agencies
and other matters that do not concern local govern-
ments. Those provisions are not discussed. This guide
will help local officials become familiar with their
obligations under the law.
The Freedom of Information Act Advisory Coun-
cil, through its staff, provides local officials with timely
information about the act that will assist in compliance.
Contact information for the staff is found later in this
report.
This guide has two major sections — meetings of a
public body and records of a public body. The term
"public body" will be used to generally describe any
locally elected public body, such as city and town
councils, as well as county boards and committees of
all such bodies. Where a difference exists in the act's
requirements for a specific type of local elected public
body, the difference is noted.
Purpose of the act
FOIA generally determines how local public bodies
must conduct their meetings, from city council sessions
to a citizen advisory committee recommending where
to locate a new sidewalk. The act also regulates the
public's access to local government records.
The guiding principle of FOIA is openness. The
act aims to "[ensure] the people of the Commonwealth
ready access to records in the custody of public officials
and free entry to meetings of public bodies wherein
the business of the people is being conducted." § 2.2-
3700(B). The section further declares that "the affairs
of government are not intended to be conducted in an
atmosphere of secrecy since at all times the public is to
be the beneficiary of any action taken at any level of
government." Id.
Thus, FOIA attempts to ensure that Virginia's citi-
zens have the ability to observe how their elected public
officials are conducting public business.
What's New
The General Assembly passed one major revision to
FOIA in the 2014 session, dealing with remote partici-
pation in meetings.
Public bodies that wish to allow their members to
participate in meetings remotely, in case of a personal
matter or medical condition, must establish a policy
governing electronic participation that complies with
§ 2.2- 3708.1. Members will be allowed to participate
as long as the reason for their absence does not violate
the established policy. This legislation also removes
the requirement added last session that the member's
participation be approved by a majority vote of the
present members. HB 193. The effect is that if the
council adopts the policy, it must allow any member to
participate electronically as long as they comply with
the policy.
I. Meetings.
The basic principle of FOIA is that all meetings
of public bodies are open to the public. Section 2.2-
3700(B) makes this clear:
All public records and meetings shall be presumed
open, unless an exemption is properly invoked. The
provisions of this chapter shall be liberally construed
to promote an increased awareness by all persons of
governmental activities and afford every opportunity
to citizens to witness the operations of governments.
Any exemption from public access to ... meetings shall
be narrowly construed and no ... meeting closed to the
public unless specifically made exempt pursuant to this
chapter or other specific provision of law.
2014 -2015 Virginia Freedom of Information Act I Conflict of ' Aterests Act I Virginia Public Records Act
Nevertheless, the act contains numerous excep-
tions to the open meeting requirement. Some issues
may be discussed in a meeting closed to the public. For
instance, public bodies may hold a closed meeting if an
open discussion will lead to the release of information
that certain other state laws require to be kept secret.
See § 2.2- 3711(A)(26), (33), (34). Still, the fact that a
meeting may be closed does not mean that it must be or
even should be closed. Furthermore, any exceptions are
to be narrowly construed.
A. Public body.
The open meeting requirements apply whenever
a public body holds or participates in a meeting. The
definition of "public body" is very broad. See § 2.2-
3701. City and town councils and county boards of
supervisors obviously are included. All committees and
subcommittees are included, whether any members
of the local governing body serve on the committee.
Citizen committees are included if the committee is
charged with either carrying out some function for the
public body or advising it. FOIA specifically states that
having citizen members does not exempt the body from
the act. Id. Accordingly, a citizens' committee formed
by the city or town to advise where a park or school
should be located would be a public body subject to
FOIA.
A committee of a council is a public body, as noted
above. Whether the committee is a standing commit-
tee or an ad hoc committee, it is subject to the act. If
the chair of a four - member finance committee ap-
points two members to negotiate a contract or to carry
out -some other role, that subcommittee of the finance
committee is also subject to the act.
B. What is a meeting?
City and town council meetings, county board
meetings and committee meetings of a public body are
certainly meetings regulated by the act. Like the defini-
tion of public body, the definition of meeting is broadly
construed under § 2.2 -3701, intending to capture any
meeting where public business is transacted or dis-
cussed. A council work session is also a meeting, as is
any other "informal assemblage" of as many as three
members of a public body (or a quorum, if quorum is
less than three members) where public business of the
locality is discussed.
FOIA typically applies to public body gatherings
irrespective of the meeting's location. It doesn't mat-
ter if a meeting is held in the council chambers or at a
council retreat held out of the locality.
Attendance at a VML Annual Conference or a Na-
tional League of Cities meeting is sometimes a touchy
subject. Because of the broad definition of public meet-
ing, some councils and boards consider attendance at
a state or national conference to be a meeting, and will
comply with the notice requirements of the act (dis-
cussed below) to be on the safe side, even though there
is no plan to discuss the locality's public business. This
action sometimes invokes a negative response from
the media or citizens who complain that they can-
not attend the out of town meeting. Conversely, if the
council doesn't consider attendance at a conference to
be a meeting, then the complaint becomes one that the
council has sneaked out of town on a private meeting.
The best solution is to announce the conference at a
council meeting, but not describe it as a meeting of the
locality, and to strictly avoid deliberating on the local-
ity's public business while attending the conference.
A gathering of council does not create a meeting
if public business is not discussed or carried out and
the gathering was not called for the purpose of doing
public business. § 2.2 -3707. This section is aimed at
allowing participation in community events or parties.
Without this section, a citizen could criticize a council
for holding a meeting if three members of council show
up at a community forum. Similarly, attending a public
forum, debate, or candidate's forum does not count as
a meeting if the gathering is held to inform the elector-
ate and no public business is being transacted. Finally,
a meeting of employees for business purposes does not
constitute a meeting, under the § 2.2 -3701 definition.
Number of public officials needed
to constitute a meeting
Obviously, any meeting of a council qualifies as
a public meeting. For the purposes of the act, such a
council meeting is created if a majority of council, or
three members, regardless of how many are needed for
a majority, get together and discuss public business. §
2.2 -3701. Therefore, if three members of a council meet
to discuss or act on government business, that creates a
council meeting for purposes of FOIA, even if it is not a
meeting per the locality's rules.
In contrast, if the three members are on a com-
mittee and meet as the committee, that meeting is a
committee meeting, not a council meeting. If addi-
tional council members attend a committee meeting,
that does not necessarily convert the meeting from a
committee meeting to a council meeting. This was
established in a Winchester Circuit Court opinion in
Shenandoah Publishing House, Inc. v. Winchester City
Council, 37 Va. Cir 149 (1995).
4 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
Notice provisions
General notice requirements that are spelled out in
the act must be followed in order to hold any meeting
of a public body. The state code also contains numer-
ous specific notice and advertising requirements for
particular types of public business. Examples include
notice of zoning actions (§ 15.2 -2204) and adopting
budgets (§ 15.2 - 2506). In all cases, the more general
requirements in FOIA need to be followed in addition
to any other requirements. The state code's specific,
subject matter requirements apply only if the public
body is discussing the relevant type of public business.
For all regular meetings of a council, committee, board,
or other agency, notice must be posted on the body's
public bulletin board and in the council clerk's office, or,
if there is none, the office of the chief administrator. The
notice must state the date, time and location of the meet-
ing and must be posted at least three days before the date
the meeting is to take place. § 2.2- 3707(0).
For regular meetings, a simple way to comply with
this requirement is to post a single notice listing the
information for all meetings of the next year. This way,
nobody will forget to give notice of a regularly scheduled
meeting. For special or emergency meetings, the notice
must be reasonable given the circumstances. The notice
must be given to the public no later than when it is given
to the members being called to attend. § 2.2- 3707(D).
Any person may file an annual request for notice of
all meetings. In that case, the public body must notify
the person making the request of all meetings. Sending
the annual schedule of all regular meetings will assist in
complying with this obligation. If the requester supplies
an e -mail address, all notices may be sent via e -mail,
unless the person objects. § 2.2- 3707(E).
If a citizen submits an e -mail address and other
personal information, such as a home address to the
locality for the purpose of being notified of meetings
and other events, that e -mail address and other infor-
mation need not be disclosed to others by the locality,
pursuant to § 2.2- 3705.1(10), but only if the person who
has submitted the e -mail address requests the non-
disclosure. Localities that are interested in keeping
e -mail addresses private may want to send an e -mail to
all e -mail recipients asking them to advise whether they
want to have their e -mail address withheld and should
have a check -box asking if the person wants to opt out
of disclosure on the webpage where citizens sign up.
Meeting minutes
Minutes of council meetings must be taken at all
open meetings. § 2.2- 3707(I). Minutes must be writ-
ten and include the meeting's date, time, and location,
along with attendance, a summary of discussed mat-
ters, and any votes taken. Minutes of council commit-
tee meetings are required to be taken only if a majority
of the members of the council serve on the committee.
Accordingly, localities are advised to avoid creating
committees that include a majority of the council.
Draft minutes and any audio or video record-
ing made of a meeting are available to the public for
inspection and copying. § 2.2- 3707(I). This means that
draft minutes must be disclosed if requested.
The agenda packet and all materials furnished to
the members of the council (except documents that are
exempt from disclosure, such as advice of the town or
city attorney) must be made available for public inspec-
tion at the same time it is distributed to the members.
§ 2.2- 3707(F). Any records that are exempt from disclo-
sure do not need to be made available. The practical
problem is for staff to remember to cull any exempt
documents when making the public copy of the agenda.
The better practice is to not include exempt documents
as a part of the agenda, but to send them separately.
Recording meetings
Citizens have an absolute right to photograph and
make video or audiotapes of public meetings. While the
council may establish rules for where the equipment may
be set up so meetings are not disrupted, the recording
equipment may not be excluded altogether. § 2.2- 3707(H).
Council may not meet in a location where recordings are
prohibited. If a courtroom, for example, has a standing
order forbidding any form of recordation, public body
meetings must be held elsewhere. § 2.2- 3707(H).
Electronic meetings
Generally, council may not hold a meeting via elec-
tronic media, including a conference call, pursuant to
§§ 2.2 -3707 & 3708. There are two exceptions:
First, if the governor declares an emergency, the
council may hold an electronic meeting, where mem-
bers phone in or participate by other electronic means,
solely to address the emergency. Council must give
notice to the public to the extent possible and must pro-
vide public access to the meeting. § 2.2- 3708(G).
Second, a member of council may participate
electronically if he or she has an emergency or personal
matter and identifies the emergency or personal matter,
or if he or she has a medical condition that prevents at-
tendance. The minutes should record the reason for the
member's absence and the remote location from which
2014 -2015 Virginia Freedom of Information Act I Conflict of ' Aterests Act I Virginia Public Records Act 5
the member participated. Each public body must
develop a written policy regulating electronic partici-
pation by its members. Once this policy is adopted, it
must be applied uniformly to all members. A member's
participation from a remote location may be disap-
proved if it violates the established policy. The disap-
proval must be noted in the body's minutes. An indi-
vidual may participate electronically in no more than
two meetings per year or 25% of the year's meeting,
whichever is less. The body must maintain a physical
quorum for the meeting. § 2.2- 3708.1.
In addition to these exceptions, council members have
some flexibility in communicating through e -mail. A
2004 Virginia Supreme Court opinion, Beck v. Shelton,
267 Va. 482; 593 S.E.2d 195, ruled that council members
e- mailing each other did not create a meeting for pur-
poses of FOIA. In Beck, multiple e -mails were sent by an
individual council member to all other members; some
e -mails were in a reply to all members, and in one or two
of the e- mails, the reply was made more than 24 hours
after the e -mail to which it replied. The court found that
no meeting had occurred, although the opinion noted
that the outcome may have been different had the e -mails
been part of instant messaging or a chat room discussion.
The Virginia Supreme Court reinforced its Beck
reasoning in Hill v. Fairfax County School Board, No.
111805 (June 7, 2012). Hill involved e -mails between
members of a school board that were exchanged over
an even shorter interval than in Beck. Back - and -forth
communications only occurred between two board
members (not the three required for a meeting un-
der FOIA). Any e -mail that was received by three or
more members was found to be of an informational
or unilateral nature and did not create any discussion
among members. Following Beck, the court reiterated
that e -mails between council members must be suffi-
ciently simultaneous to create a meeting for the pur-
poses of FOIA. Hill affirmed the lower court's finding
that the school board members' communications did
not create a meeting because the e -mails did not show
the simultaneity or group discussion required under
FOIA. Thus, responsive e -mails between at least three
council members must occur within quick succession to
constitute an assembly of members (though the precise
responsive speed that would be necessary is unclear).
Beck and Hill indicate that e -mail communication
between more than two council members may com-
prise a meeting under FOIA if consisting of mutual
discussion within a time frame short enough to be con-
sidered an assemblage. In light of these cases, council
members have some discretion to send e -mails to other
members if over an extended timeframe or if non -con-
versational (however, these e -mails will almost always
be public records and subject to FOIA's disclosure
provisions; see Part II of this guide). Nonetheless, coun-
cil members should be cautious when communicating
public business over e -mail because the courts have not
clearly stated where responsive e -mails are considered
an assemblage. Furthermore, this vagueness will only
become amplified as technology improves and e -mail
communication becomes ever more instantaneous. If a
series of e -mails is found to be sufficiently analogous to
an assembly of three or more council members, then all
of FOIA's requirements apply. In that case, demonstrat-
ing how a group of e -mails between council members
was open to the public may prove difficult.
Voting
All votes must be made publicly. Secret ballots are
not allowed, unless permitted by some other provision
of law. § 2.2- 3710(A). This section, however specifically
authorizes each member of council to contact other
members of a council or other body "for the purpose
of ascertaining a member's position" on public business
without making the position public. § 2.2- 3710(B).
C. Closed meetings
A closed meeting is a meeting of a council or other
public body from which the public is excluded. It may
be held only for specific reasons, which are delineated
in the act. A closed meeting must be entered into dur-
ing an open meeting of the public body (the specific
procedures are described below). After the closed por-
tion of a meeting, the council must reconvene in open
session to certify that the closed meeting portion was
carried out legally. There are exceptions to the require-
ment that a closed meeting be held as a part of an open
meeting. They are discussed below.
Purposes for closed meetings
Section 2.2 -3711 sets out 45 reasons for holding a
closed meeting. A city or town council will generally
need to hold a closed meeting for one of six of the pos-
sibilities:
• Personnel matters - subsection 1;
• Real property - subsection 3;
• Privacy of individuals unrelated to public business
- subsection 4;
• Prospective business - subsection 5;
• Consultation with legal counsel - subsection 7; and
• Terrorism- subsection 19.
6 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
1. Personnel matters. Section 2.2- 3711(A)(1)
authorizes a closed meeting for: "[d]iscussion, con-
sideration or interviews of prospective candidates for
employment; assignment, appointment, promotion,
performance, demotion, salaries, disciplining or resig-
nation of specific public officers, appointees or employ-
ees of any public body."
The most significant requirement in the subsection
is that the discussion be about one or more specific
people. This means that the council may not discuss
general personnel issues in a closed meeting. For
example, the council would not be authorized to meet
behind closed doors to discuss a pay plan or set salaries
for all employees. The council could, however, meet to
discuss the pay increase to be given an employee or ap-
pointee, based on the council's discussion in the meet-
ing of the employee's performance.
Note that the section applies to three classes of pub-
lic officials: public officers, public appointees and em-
ployees of the public body. Therefore, the council could
discuss the performance of a specific planning commis-
sion member in closed meeting since that person is an
appointee of the council.
Two Virginia attorney general opinions have cloud-
ed the use of the section for a closed meeting discussion
of most employees and some other public officials. In
an opinion issued Dec. 16, 1998, the attorney general
opined that a council may not hold a closed meeting
to discuss employees who are not directly employed by
the council. The opinion states that only the manager,
clerk, and city attorney could be discussed in a closed
meeting, because the city charter stated that only those
three employees are under the "full supervisory author-
ity" of the council. The attorney general confirmed
the opinion in a second opinion dated May 18, 2000,
which was written in response to a request for reconsid-
eration. 2000 WL 8752.
Many local government attorneys, as well as VML,
disagree with this opinion. The specific language of
the subsection allowing a closed meeting for personnel
matters states that the individual must be an employee
of the public body. The opinion limits the term "em-
ployee of the public body" in a manner that is inconsis-
tent with the common understanding of the authority
of a city or town council over all employees, not just
those who report directly to the council. If a council
directs the manager to fire an employee for a problem
it discussed in a closed meeting, the manager would
be expected to fire the individual. Direct supervisory
control by council may not exist, but the council retains
the ultimate responsibility for the operation of the city
or town; hence, the council should logically retain the
ability to confidentially discuss the employee. The
FOIA Council does advise that, even accepting the at-
torney's general opinion, the council could convene in
closed session to discuss the manager's handling of the
personnel matter, since the manager is a direct employ-
ee of the council.
The other opinion that has cast a cloud on the use
of the exemption was issued April 5, 1999. It states
that a school board cannot meet in closed session to
discuss choosing a chairman and vice chairman. The
rationale was that the chairman and vice chairman
are not appointed or employed by the public body. The
specific words of the section, however, make personnel
matters apply to "specific public officers, appointees or
employees" of the public body. Certainly, the chairman
is a public officer and appointee of the school board,
since the board makes the appointment or election in
the case in the opinion, and the chair is the leader of
the board.
Opinions of the attorney general do not have the
effect of a court decision. They are only opinions that
may be considered for guidance. Courts will give
some weight to such opinions, but are not bound by
them. Localities are cautioned in this area. It is always
possible that a judge will simply follow an opinion
without evaluating its merits. In that case, a locality
could find itself losing a case in court over either of
these two issues.
2. Real property. A closed session for discussion
of real property issues is allowed for the acquisition of
land for a public purpose or disposition of publicly held
land, but only if discussing the matter in open session
would harm the council's bargaining position. § 2.2-
3711(A)(3).
The council does not need to state why an open dis-
cussion would harm its position in the motion to hold
a closed meeting. Still, a council should be prepared to
defend the closed meeting if challenged.
3. Privacy of individuals unrelated to public
business. Local governments do not use this sec-
tion very often because a council meeting is generally
limited to discussing public business. However, if as a
part of public business a matter arises that affects the
privacy of an individual unrelated to public business,
the meeting may be carried out in private.
This provision's usefulness can be illustrated
through discussion of routing a new street. If a land-
owner who could be displaced has a medical condi-
tion that would make condemning his home a life
threatening situation, that would be a privacy issue for
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 7
the citizen not related to public business. It would be
appropriate for the council to avoid discussion in the
public view, in order to protect the individual's privacy.
§ 2.2- 3711(A)(4).
4. Prospective business and business retention. In
today's competitive market for recruiting and retain-
ing businesses, much negotiation goes on between the
council and a company, often involving tax benefits,
land deals, employment incentives and similar matters.
If that kind of information is discussed in public ses-
sion, competing localities from other states will gain a
competitive advantage, since they will know how much
must be offered to take the business away from the
Virginia locality. Section 2.2- 3711(A)(5) allows a closed
meeting to protect these negotiations.
In order to enter into a closed meeting, there must
have been no "announcement" of the interest of
business in the community. Whether a local newspa-
per's report of the business interest may constitute an
announcement of the interest is an unresolved question.
One circuit court has ruled that a news report with-
out any statement by the government qualifies as an
announcement. The state FOIA office, however, takes
the position that an announcement is something more
than a newspaper report speculating about business.
If a public official or official of the business makes the
statement about the business in an official capacity, that
clearly constitutes an announcement and the section
could not be invoked.
The section not only authorizes a meeting for the lo-
cation of a business, but also the expansion of an existing
business. In the case of an expansion, there must have
been no announcement of the interest in expanding.
A locality may also go into closed session to discuss
the retention of an existing business. The code autho-
rizes this when the retention discussion relies on pro-
prietary information from the business, or memoranda
and /or working papers from the public body that, if
publicized, would be adverse to the financial interests
of the locality. §§ 2.2- 3711(40) & 2.2- 3705.6(3).
5. Consultation with legal counsel. This
important provision is limited to three types of legal
matters:
1. Actual litigation;
2. Probable litigation; and,
3. Specific legal matters requiring the advice of
counsel. § 2.2- 3711(A)(7).
In actual or probable litigation, a closed meeting
can be held only if holding a discussion in the open
"adversely affect[s] the negotiating or litigating pos-
ture" of the council. § 2.2- 3711(A)(7). For example,
there is no need to hold a closed meeting to simply
explain to council that the locality had been sued.
The suit is a public record in the circuit court clerk's
office, therefore a briefing that the suit had been filed
should be done in open meeting. In contrast, a brief-
ing by the city attorney on the strategy for defending
the suit would be appropriate for a closed meeting
because open discussion would obviously hinder the
defense. Again, the council does not need to identify
why a closed meeting is needed; it only has to be able to
defend the decision if later challenged.
Actual litigation refers to existing litigation. Prob-
able litigation is defined to mean that a suit has been
"specifically threatened" or the council or its attorney
has a "reasonable basis" to believe a suit will be filed.
The third category is limited to "consultation with
counsel ... regarding specific legal matters" requiring
legal advice. § 2.2- 371l(A)(7). This category, like the two
litigation categories, is limited to consulting the attorney
(or other staff members or consultants) about an ap-
propriate matter for a closed meeting. The section may
not be used to hold a discussion among the members of
a council, even if the attorney is present. Nonetheless,
discussion among members for the purpose of consulting
an attorney is allowed. Simply having an attorney pres-
ent does not allow a closed meeting and does not allow a
general discussion among the members. If non - attorney
staff members participate, the attorney should still be
present and participating in the consultation. This was
reinforced by language added in 1999: "Nothing in this
subdivision shall be construed to permit the closure of a
meeting merely because an attorney ... is in attendance
or is consulted on a matter." Id.
This rule was demonstrated in the March 2000
Richmond Circuit Court opinion Colonial Downs, L.P
v. Virginia Racing Commission, (2000 WL 305986).
In that case, the racing commission went into a closed
meeting for consultation with counsel, but spent the
time holding a general discussion of Colonial Downs'
application for licensing. The court held that the meet-
ing was a violation of the act.
6. Terrorism. After the Sept. 11 terrorist attacks,
it became clear that some provisions of the act made it
easy for a terrorist to gain security information through
a FOIA request. One step in response was a change to
§ 2.2- 3711(A)(19) that allows a meeting in closed session
to discuss planning for terrorist activity. The public
body may meet to be briefed by staff, attorneys or
law- enforcement or emergency personnel to respond to
terrorist or "a related threat to public safety."
8 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
Procedures for closed meetings
Getting into closed meetings. In order to go
from an open meeting to a closed meeting, there must
be a recorded vote in open meeting. The motion must
include the following elements:
1. The subject must be identified (example: new
park in east end of city);
2. A statement of the purpose of the meeting (ac-
quiring land for park); and,
3. A reference to the code section authorizing the
meeting. § 2.2- 3712(A).
The degree of specificity in the statement of the sub-
ject and purpose of a meeting varies with the nature of
the issue. A discussion about a pending lawsuit should
name the suit. After all, the pleadings are public and
the suit may well have been the subject of a newspaper
article. On the other hand, a discussion of a sensitive
personnel matter should not contain much specificity
in the motion, so as to not embarrass the employee who
is the subject of the meeting. The council will need to
exercise discretion in the motion's specificity.
Nonetheless, in no case will it be sufficient to make a
general statement to satisfy the first and second require-
ments above. "Personnel matters, pursuant to FOIA"
is inadequate for a motion for a closed meeting. The
Virginia Supreme Court opinion in White Dog Pub-
lishing, Inc. v. Culpeper County Board of Supervisors,
made this clear.
During a closed meeting, only the topics identified
in the motion may be discussed. § 2.2- 3712(0). In order
to discuss more than one topic, the council should
either include both topics in one motion, which is the
preferred method, or come out of closed meeting and
re -enter after making a motion on the second topic.
The council may record minutes, but that is not re-
quired. In almost every case, it is not a good idea. The
minutes serve little purpose, since the council must take
any action in open meeting, and there will be a record
of the open meeting. § 2.2- 3712(I).
Va. Code § 2.2- 3712(H) states that any official vote
or action must he held in open session. Many local
governments, therefore, take no more than a straw poll
during a closed meeting, or take no votes at all, no mat-
ter how informal.
Getting out of closed meeting. At the conclusion
of each closed meeting, the public body must certify in
open session that it complied with the act by a roll call
vote. The vote must confirm that the meeting was held
for purposes allowed by the act and that while in the
closed session, only those matters identified in the mo-
tion to hold a closed meeting were discussed. If a mem-
ber disagrees, he must state how the closed meeting did
not satisfy the requirements of the act before the vote is
taken. § 2.2- 3712(D). A record of the vote must be kept
in the public body's records.
Interviewing chief administrative officer
candidates. Most closed meetings must be held as a
part of an open meeting, so the public knows the time
and place of it. The act contains an important exception
for local governments in § 2.2- 3712(B). If a public body
is to hold interviews for its chief administrative officer, it
may make a single announcement in open meeting that
it will hold interviews. It need not identify the location
of the interviews or the names of the interviewees. The
interviews must be held within 15 days of the motion.
Annexation agreements - no FOIA require-
ments. Independent of FOIA, Va. Code § 15.2 -
2907(D) allows a council or board to hold meetings
on matters concerning annexation or a voluntary
settlement agreement with no FOIA implications. This
means notice need not be given, the public need not
be invited, and minutes need not be taken. No other
FOIA requirements need to be followed. The section
does not prohibit a public body from following the
FOIA requirements, but they are not mandatory.
II. Records
The second major purpose of FOIA is to set out
the rules for public record disclosure. The general rule
in FOIA concerning records is that they are open to
public inspection and copying. However, more than
80 categories of records are exempt from public access.
Most do not apply to local governments. The fact that a
record may be exempt from disclosure does not require
it to be withheld. Each exemption section states in the
opening sentence that the records "may be disclosed
by the custodian in his discretion, except where such
disclosure is prohibited by law." § 2.2- 3705.1, 2, 3, 4, 5,
6, 7. Some records, however, are prohibited from being
disclosed at all. The custodian has no discretion to
permit their disclosure. The main examples are certain
tax records that Va. Code § 58.1 -3 requires to be kept
confidential, and matters for which the Privacy Protec-
tion Act prohibits disclosure. The act applies to records
of the public body, whether the records are on paper,
or in an electronic form, such as e- mails, databases and
other electronic formats.
A. Responding to disclosure requests
Custodian of records. The records provisions
of the act use the term "custodian of the records" as
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 9
the person who has the responsibility to respond. Some
sections mention the obligation of the public body, but
the responsibility is clearly with the custodian. If suit is
brought over a violation, however, the public body can
expect to be named as a defendant.
One temptation is to deny a request because it was
made to the wrong public official. If another public of-
ficial who works in the same local government has the
records, the request should not be denied just because it
was directed to the wrong official if the recipient knows
or should know that the records are available from
another official. In this case, the official should respond
to the request with the contact information for the
other public body or just work with the other official to
provide the records. § 2.2- 3704(B)(3).
If the locality stores archived records off -site, and
the records are in control of a third party, it is still the
public body's responsibility to retrieve those records
if they are requested. § 2.2-3704j). The Library of
Virginia is the custodian of the records if the locality
properly archives records with the state library.
Procedures for handling requests. Any citizen
or member of the media may request an opportunity to
inspect and /or copy public records. The request does
not have to refer to the act, but only needs to identify
the records with reasonable specificity. § 2.2- 3704(B).
There is no authority to require the request to be in
writing, nor may the custodian of the records refuse
to reply to a request if the requester refuses to put a
request in writing. Some government offices ask for the
request to be reduced to writing. This is a useful policy
because it helps the custodian better understand what
is being requested. That helps the requester, since the
custodian can shorten the time researching records,
thereby reducing the cost to the individual. If the
individual declines to reduce the request to writing, a
helpful option is to confer with the individual and write
down the request, allowing the person to see the note
and hopefully sign it, so no confusion will exist.
The custodian may require the person asking to see
or copy records for his name and legal address. § 2.2-
3704(A). This 2002 amendment is part of the terrorism
bill, but is not limited to requests relating to terrorism.
The act is not clear on what happens if the requester
refuses. VML suggests that if the requester does refuse,
the language that the custodian "may require" the
information necessarily implies that the custodian may
refuse to allow access to the records.
The act does not give any rights to people who are
not residents of Virginia, or to media representatives
if the media entity does not publish or broadcast into
the state. § 2.2 -3704. As a practical matter, however,
many government agencies don't discriminate based
on where the requester is from. It is generally easy
for an out -of -state person or media representative to
find a Virginia individual to make the request. There-
fore, there is little point in denying a request based on
residency. Still, there is nothing that prohibits denying
the request, so a locality is certainly free to follow the
statute. Last year, a federal court upheld this law.
B. Types of responses
There are three possible responses to a request:
1. Provide the records;
2. Obtain seven additional days to respond; or,
3. Claim an exemption to all or a portion of the
request.
The initial response must be made within five busi-
ness days of the receipt of the request, pursuant to §
2.2 -3704, regardless of which response is used. If the
custodian fails to respond within the times required,
§ 2.2 -3704 considers that to be a denial of the request
and makes it a violation of the act.
Notably, the custodian is not required to create
records if they do not exist. § 2.2- 3704(D). For example,
if a request is for a list of trash collectors who do busi-
ness in a locality, and the locality does not have such
information, there is no requirement to create that list.
Subsection D does encourage public bodies to abstract
or summarize information in a manner agreed to with
the requester.
1. Provide the records. The first response, pro-
viding the records, is straightforward. The custodian
simply makes them available. If the individual asks to
receive copies, the copies need to be made within the
five days, if possible, or at such time the custodian and
requester agree.
In a June 1, 1999 opinion, the attorney general
opined that a local commissioner of the revenue is not
required to make a copy of the personal property book
for a citizen. The personal property book is a large,
computer - generated bound book that every commis-
sioner maintains. The attorney general reasoned that
the act allows the commissioner to put the burden of
copying on the citizen if the office has no means to
copy the document. The same reasoning would apply
to other local government agencies where the agency is
incapable of providing requested information stored on
electronic databases. § 2.2- 3704(G).
2. Obtain seven additional days to respond.
10 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
Similarly, if it is "not practically possible to provide the
... records or to determine whether they are available,"
§ 2.2- 3704(B)(4), within the five days, the custodian
may send a written response to the person explaining
the conditions that make the response impractical.
Upon compliance with this requirement, the custodian
will have an additional seven workdays to respond. The
added seven days does not begin until the end of the
fifth day of the initial period. For example, if the custo-
dian sends a letter on the second day after receipt of the
request, he or she will still have a total of 12 workdays
to respond.
One unanswered question is whether the custodian
may claim more time to respond based on the time it
takes to determine whether an exemption applies. The
quoted language above uses the term "available." It
is not clear whether deciding if an exemption applies
is included in determining whether records are avail-
able. In discussions with the Virginia Press Association
during the 2000 committee meetings on changes to the
act, the VPA spokesman represented that the associa-
tion would not contest a custodian's obtaining extra
time to determine if exemptions apply. No court has
answered the issue.
In addition to the 12 days to reply, a public body
may petition a court for even more time to respond to
a request. The additional time will likely be granted
if the public body can demonstrate that the volume of
records requested is so large that it would disrupt its
operations to respond in the prescribed time and that it
is unable to reach an agreement for a time to respond
with the requester. § 2.2- 3704(0).
3. Claim a partial or full exemption to the
request. If one or more of the many exemptions ap-
ply, the custodian may, within the five workday limit,
send the requester a written explanation of why all or
some of the records are exempt. The explanation must
identify the subject matter of the records (example:
performance evaluations) and must cite the section of
FOIA that authorizes the exemption. § 2.2- 3704(B)(2).
If only a portion of the requested records is exempt, the
non - exempt parts must be made available within the
five days, unless additional time is properly invoked.
In 1999, the Virginia Supreme Court decided Law-
rence v. Jenkins, 258 Va. 598, a case in which a county
zoning administrator failed to supply the code section
he was relying on to exempt certain information in
response to a FOIA request. The act required the code
sections to be identified in the written response to the
requester. Long after the time to respond had passed,
the administrator sent the individual a letter identify-
ing the code section. The court ruled that the violation
still did not permit the individual to see the records and
ruled that the records were exempt. Even though the
zoning administrator did fail to meet FOIA require-
ments, the court determined the violation did not harm
the requestor because he would not have been allowed
to see the records if the act had been complied with.
VML does not recommend relying on Lawrence.
Charges for responding to a request
The public body may charge the requester for
searching and copying records. The costs must be
reasonable, not to exceed the actual cost "incurred in
accessing, duplicating, supplying, or searching for the
requested records." § 2.2- 3704(F). A public body may
not charge for overhead items, such as utilities, debt
payments and the like. The hourly salary rate of any lo-
cal employee who spends time researching and assem-
bling records for the request may be charged, as may
actual copying costs.
In responding to a request for duplication of part of
a geographic information system database by making
copies of GIS maps, the locality may base its charge on
a per acre cost if the area requested exceeds 50 acres.
§ 2.2- 3704(F).
If the custodian determines that the cost of re-
sponding will be more than $200, he may demand the
requester to agree to pay a deposit in the amount of
the projected costs before any information is disclosed.
The time limits are tolled until payment of the deposit.
The custodian is not required to send the estimate in
writing, though providing a written estimate is the bet-
ter practice, in order to avoid a claim by the individual
that no deposit was requested. § 2.2- 3704(H).
Format of records
Confusingly, the custodian must provide computer
records in any "tangible medium identified by the request-
er," except that it need not produce the material found in
an electronic database in "a format not regularly used by
the public body." § 2.2- 3704(G). The subsection is further
confused by a statement that provides not withstanding
this limitation — the public body is to attempt to come to
an agreement with the requester regarding the format of
the documents to be supplied. Thus, a public body does
not have to disclosure electronic records in a format it does
not regularly use, but must comply with any request for
records maintained in a medium the public body uses in
the regular course of business.
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 11
E -mails
E -mails have generated much controversy since
they began being used in government business opera-
tion. E -mails that deal with public business are public
records. E -mails kept on the home computer of a coun-
cil member or local government employee that relate to
the transaction of public business are public and subject
to inspection and copying by a citizen who makes a
request to see the records.
Draft documents
Draft documents are records. The specific mention of
draft records is to the minutes of a public body. Section
§ 2.2 -3707 specifically states that draft minutes are avail-
able for inspection. Some local governments once had
policies that denied the public viewing of draft minutes.
The act prohibits such policies. Some draft documents
fall into the working papers exemption. In that case, or
if any other exemption applies, the draft documents are
not required to be made available for inspection.
C. Exemptions list.
The list of records that may be held exempt from
disclosure by the custodian is set out in seven separate,
lengthy sections. Fortunately, the sections are arranged
by subject area in order to make it easier to find the
exemptions that may apply.
The current sections are:
• Exclusions of general application to public bodies:
§ 2.2- 3705.1.
• Exclusions; records relating to public safety: § 2.2-
3705.2.
• Exclusions; records relating to administrative
investigations: § 2.2- 3705.3.
• Exclusions; educational records and certain re-
cords of educational institutions: § 2.2- 3705.4.
• Exclusions; health and social services_ records:
§ 2.2- 3705.5.
• Exclusions; proprietary records and trade secrets:
§ 2.2- 3705.6.
• Exclusions; records of specific public bodies and
certain other limited exemptions: § 2.2- 3705.7.
Most local governments will only use 20 or so of
the exemptions, and only 10 will apply frequently. The
exemptions that most often apply to local government
are:
• "State income, business, and estate tax returns,
personal property tax returns, scholastic and
confidential records held pursuant to § 58.1 -3."
§ 2.2- 3705.7(1).
• "Personnel records containing information con-
cerning identifiable individuals, except that access
shall not be denied to the person who is the subject
thereof" § 2.2- 3705.1.(1). Any adult subject may
waive confidentiality, in which case the govern-
ment may release information on the person.
• "Working papers and correspondence of the ...
mayor or chief executive officer of any political
subdivision of the Commonwealth .... However,
no record which is otherwise open to inspection
under this chapter shall be deemed exempt by
virtue of the fact that it has been attached to or
incorporated within any working paper or corre-
spondence. § 2.2- 3705.7(2).
As used in this subdivision: "Working papers"
means those records prepared by or for an above
named public official for his personal or delibera-
tive use. Generally, once the records have been
shared by the chief administrative officer (county
administrator or city or town manager), the
records lose the working papers status, unless the
records are collected from the council members or
other people who have accessed them at the end of
a meeting where the records were distributed.
• Consultants' reports as working papers: Working
papers, by the above definition, applies to records
prepared by or for a manager or mayor for his
personal or deliberative use. Once a consultant's
report is distributed or disclosed to council or
the council has scheduled any action on a matter
that is the subject of the consultant's report, the
report loses its exempt status as a working paper.
§ 2.2- 3705.8(B). Therefore, until either of the two
conditions occur, the report may be withheld as
a working paper. Once either event occurs, the
working paper's status ceases to exist. If the report
is exempt for other reasons, it remains exempt.
• "Written advice of legal counsel to state, regional
or local public bodies or public officials, and any
other records protected by the attorney client
privilege." § 2.2- 3705.1(2).
• "Legal memoranda and other work product com-
piled specifically for use in litigation or for use in
an active administrative investigation concerning
a matter which is properly the subject of a closed
meeting under § 2.2- 3711." § 2.2- 3705.1(3).
Subsections 2 and 3 of § 2.2- 3705.1 are the classic
attorney client and attorney's work product rules.
• "Library records which can be used to identify
12 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
both (i) any library patron who has borrowed
material from a library and (ii) the material such
patron borrowed." § 2.2- 3705.7(3).
• "Any test or examination used, administered
or prepared by any public body for purposes
of evaluation of (i) any student or any student's
performance, (ii) any employee or employment
seeker's qualifications or aptitude for employment,
retention, or promotion, or (iii) qualifications for
any license or certificate issued by a public body."
§ 2.2- 3705.1(4). This subsection includes exemp-
tions for test keys and any information that would
defeat the usefulness of the test.
• "Records recorded in or compiled exclusively for
use in closed meetings lawfully held pursuant to
§ 2.1 -344. However, no record which is otherwise
open to inspection under this chapter shall be
deemed exempt by virtue of the fact that it has
been reviewed or discussed in a closed meeting."
§ 2.2- 3705.1(5).
• "Computer software developed by or for a ... political
subdivision of the Commonwealth." § 2.2- 705.1(7).
• "Customer account information of a public util-
ity affiliated with a political subdivision of the
Commonwealth, including the customer's name
and service address, but excluding the amount of
utility service provided and the amount of money
paid for such utility service." § 2.2- 3705.7(7). Note
that under this subsection, anyone has access to
the volume of service used by a customer and the
price paid, even though the name and address of a
customer need not be given. A typical example of
how this works: An individual could not demand
a listing of the names of customers, but could de-
mand to know how much water, gas, or electricity
a customer has used and the amount paid for the
same, where the person names the customer.
• "Appraisals and cost estimates of real property
subject to a proposed purchase, sale or lease, prior
to the completion of such purchase, sale or lease."
§ 2.2- 3705.1(8).
This section has been modified by Va. Code
§ 25 -248. Local governments are now in the list
of agencies that must follow the Uniform Reloca-
tion Assistance Act. One of the obligations, in
subsection (b) requires that: "real property shall be
appraised before the initiation of negotiations, and
the owner or his designated representative shall be
given an opportunity to accompany the appraiser
during his inspection of the property." Therefore,
in any purchase of land to which the URAA ap-
plies, the landowner must be allowed to see a copy
of the appraisal, and the appraisal must be done
before beginning negotiations for the land.
• "Confidential information designated as provided
in (submitting a bid in procurement regulated by
the Procurement Act) as trade secrets or propri-
etary information by any person who has submit-
ted to a public body an application for prequali-
fication to bid on public construction projects
in accordance with subsection B of § 11 -46."
§ 2.2- 3705.6(10). Language in the Procurement
Act supports this exemption.
• Plans to prevent or respond to terrorist activity, to
the extent such records set forth specific tactics,
or specific security or emergency procedures, the
disclosure of which would jeopardize the safety of
governmental personnel or the general public, or
the security of any governmental facility, building,
structure, or information storage system. § 2.2-
3705.2(4).
• Engineering and architectural drawings, opera-
tional, procedural, tactical planning or training
manuals, staff meeting minutes or other records,
the disclosure of which would reveal surveillance
techniques, personnel deployments, alarm or se-
curity systems or technologies, or operational and
transportation plans or protocols, to the extent
such disclosure would jeopardize the security of
any governmental facility, building or structure or
the safety of persons using such facility, building or
structure. § 2.2- 3705.2(6).
These two subsections help localities maintain
security without having a risk of terrorists or other
people gaining access to the security information.
• Personal information, as defined in § 2.2 -3801,
including electronic mail addresses, furnished to a
public body for the purpose of receiving electronic
mail from the public body, provided that the elec-
tronic mail recipient has requested that the public
body not disclose such information. However,
access shall not be denied to the person who is the
subject of the record. § 2.2- 3705.1(10).
• The name, address and phone number of a person
complaining about another person on a zoning,
building code or Fire Prevention Code complaint
are exempt from disclosure. The new provision
is not limited to criminal complaints: it applies
in any investigation of the complaints. § 2.2-
3705.3(10). Building Code and Fire Prevention
Codes complaints were added in 2009.
2014 -2015 Virginia Freedom of Information Act I Conflict of ' Interests Act I Virginia Public Records Act 13
D. Criminal incident information.
The majority of the rules for criminal incident in-
formation are set out in § 2.2 -3706. The section's basic
requirement is that "criminal incident information" has
to be made available only if it applies to a felony. This
means that local law enforcement officials do not have
to make misdemeanor criminal incident information
available. The policy behind the distinction between
misdemeanors and felonies is based on the prob-
able burden that would be shouldered by local police
departments and sheriff's offices if required to make
public information about every misdemeanor.
There are several exemptions that allow a law enforce-
ment agency to withhold information in order to promote
public safety and to not hinder ongoing criminal investiga-
tions. If release would hinder an investigation or be likely
to cause the criminal to flee or destroy evidence, it need
not be released. Once the reason for concern has ended,
the exemption no longer applies. However, § 2.2- 3706(A)
(1)(b),(c) requires the names of adult arrestees and the
status of charges or arrests to be released.
The identities of crime victims and confidential
informants do not need to be released. There is no time
limit on this exemption. Thus, unlike other informa-
tion, the exemption continues even after the reason for
concern ceases to exist.
Various other criminal records are exempt:
• complaints, memos, correspondence and evidence
that is not "criminal incident information;"
• photos of adult arrestees, if release would harm an
investigation or prosecution;
• confidential reports made to the police or sheriffs
personnel;
• local crime commission information identifying
persons providing information about criminal
activity; and,
• neighborhood watch program information that
contains the names, addresses or schedules of the
watch participants, if the information is provided
under a promise of anonymity.
The provision exempting law- enforcement records
containing police and other tactical plans that need
to be kept secure for safety reasons is set out in § 2.2-
3706(A)(2)(e).
Section 15.2 -1722 obligates each police chief and
sheriff to maintain records about arrests, investigations
and incidents to promote efficient law enforcement
operation. Section 2.2- 3706(A)(3) clarifies that those
records are subject to FOIA, except information of a
"personal, medical or financial nature," if the release
would jeopardize the safety or privacy of a person. Also
exempt are undercover operation plans, background
checks of law enforcement job applicants and confiden-
tial administrative investigations.
Section 2.2- 3706(A)(2)(g) exempts from disclosure
the mobile phone and pager numbers of police officers
for devices provided by the police department to assist
the officers in carrying out their duties. This arose from
attempts by reporters to obtain the cell phone numbers
of police officers, then calling while the officers were on
a call.
Rights of penal institution inmates under FOIA
Section 2.2- 3703(0) denies people who are in a local
jail or state or federal penitentiary any rights under
FOIA. The only rights are those guaranteed by the
Constitution, such as the right to subpoena evidence.
Enforcement provisions
Any person who feels a public body or public official
has violated the act may file suit in the general district
or circuit court of the locality where the body or official
operates. § 2.2- 3713(A). A FOIA action may commence
in the name of a person, even if the plaintiff's attorney,
acting on his or her behalf, made the original FOIA
request. The case must be heard within seven days of
filing. § 2.2- 3713(0). As a practical matter, this rocket
docket provision inconveniences judges greatly, as their
court schedules are usually very busy. Saturday hear-
ings are common for FOIA cases.
The petitioner must state a claim of a violation with
reasonable specificity, pursuant to subsection D. Even
though a suit is filed by the complaining citizen, the
public body must put on its evidence first and must
prove that it has complied with the act. It is not the
petitioner's obligation to prove the violation. § 2.2 -3713.
The court may award an injunction against re-
peated violations, or even for a single occurrence of
noncompliance. Further, if the petitioner wins the case,
he may be awarded attorney's fees by the court. If the
court determines that an official willfully or knowingly
violated the law, it is required to impose a civil penalty
against him or her in an amount between $500 and
$2,000 for a first offense and $2,000 to $5,000 for sub-
sequent offenses. The penalties are to be paid into the
Literary Fund. § 2.2 -3714.
14 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
Freedom of Information
Advisory Council
The Freedom of Information Advisory Council
serves primarily as an office to answer questions about
FOIA made by government agencies, the public, and
the media. An attorney who staffs the office makes
the opinions of the council. The opinions are to be
informal, advisory, and nonbinding. If a government
agency submits records for a review and advice by the
FOIA officer, the officer may not release the submitted
information without the permission of the agency that
submitted them.
The office has a toll free number (866) 448 -4100
for requests, and has a website: http: / /dls.state.va.us/
foiacouncil.htm. The council has lists of written
opinions on the website.
In addition to issuing opinions, which may be made
via telephone, letter or e -mail, the office conducts
FOIA training for government agencies. Because pub-
lic officials must read and familiarize themselves with
the act, the training sessions are an important opportu-
nity to learn the act's requirements. § 30 -179.
Summary
The Freedom of Information Act includes many
requirements and restrictions pertaining to public
access of government information. The basic policy
woven throughout the act makes clear that the public
is to have free access to government information and
meetings. The act sets out the types of meetings that
can be closed. The exemptions protect the operation of
government reasonably well.
FOIA will continue to evolve to meet the changing
expectations of the public and government agencies.
In the area of electronic information, expect to see
significant changes as the General Assembly makes the
act more relevant in the fast changing electronic age.
For example, application of the act to the use of e -mail,
instant messaging and other social media software will
likely be revisited.
We hope this guide will help local governments
serve the public more effectively. Questions or com-
ments for future editions should be sent to the author,
Mark K. Flynn, VML general counsel, at (804) 523-
8525 or mflynn @vml.org.
2014 -2015 Virginia Freedom of Information Act I Conflict of ' Interests Act I Virginia Public Records Act 15
16 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
Title 2.2. Administration of Government
Subtitle II. Administration of State Government
Part B. Transaction of Public Business
Chapter 37. Virginia Freedom of Information Act
§ 2.2 -3700
Short title; policy .................................................................................................. ...............................
18
§ 2.2 -3701
Definitions ........................................................................................................... ...............................
18
§ 2.2 -3702
Notice of chapter ................................................................................................. ...............................
19
§ 2.2 -3703
Public bodies and records to which chapter inapplicable; voter registration and election
records; access by persons incarcerated in a state, local, or federal correctional facility ...................
19
§ 2.2- 3703.1
Disclosure pursuant to court order or subpoena ................................................. ...............................
19
§ 2.2 -3704
Public records to be open to inspection; procedure for requesting records
and responding to request; charges; transfer of records for storage, etc ............. ...............................
19
§ 2.2- 3704.1
Posting of notice of rights and responsibilities by state public bodies;
assistance by the Freedom of Information Advisory Council ............................. ...............................
21
§ 2.2- 3705.1
Exclusions to application of chapter; exclusions of general application to public bodies ...................
22
§ 2.2- 3705.2
Exclusions to application of chapter; records relating to public safety ............... ...............................
23
§ 2.2- 3705.3
Exclusions to application of chapter; records relating to administrative investigations ....................
26
§ 2.2- 3705.4
Exclusions to application of chapter; educational records and certain records
ofeducational institutions .................................................................................... ...............................
28
§ 2.2- 3705.5
Exclusions to application of chapter; health and social services records ............ ...............................
29
§ 2.2- 3705.6
Exclusions to application of chapter; proprietary records and trade secrets ...... ...............................
31
§ 2.2- 3705.7
Exclusions to application of chapter; records of specific public bodies and certain
otherlimited exemptions ..................................................................................... ...............................
35
§ 2.2- 3705.8
Limitation on record exclusions .......................................................................... ...............................
39
§ 2.2 -3706
Disclosure of criminal records; limitations ............................................................ .............................40
§ 2.2 -3707
Meetings to be public; notice of meetings; recordings; minutes .......................... ...............................
41
§ 2.2- 3707.01
Meetings of the General Assembly ...................................................................... ...............................
42
§ 2.2- 3707.1
Posting of minutes for state boards and commissions ......................................... ...............................
42
§ 2.2 -3708
Electronic communication meetings; applicability; physical quorum required;
exceptions; notice; report ....................................................................................... .............................43
§ 2.2- 3708.1
Participation in meetings in event of emergency or personal matter; certain disabilities;
distance from meeting location for certain bodies ............................................... .............................44
§ 2.2 -3710
Transaction of public business other than by votes at meetings prohibited ........ ...............................
45
§ 2.2 -3711
Closed meetings authorized for certain limited purposes ..................................... .............................45
§ 2.2 -3712
Closed meetings procedures; certification of proceedings .................................. ...............................
49
§ 2.2 -3713
Proceedings for enforcement of chapter .............................................................. ...............................
50
§ 2.2 -3714
Violations and penalties ....................................................................................... ...............................
51
17 2014 -2015 Virginia Freedom of ' Information Act I Conflict of ' Interests Act I Virginia Public Records Act
§ 2.2 -3700 Short title; policy
A. This chapter may be cited as "The Virginia
Freedom of Information Act"
B. By enacting this chapter, the General Assembly
ensures the people of the Commonwealth ready access
to public records in the custody of a public body or
its officers and employees, and free entry to meetings
of public bodies wherein the business of the people is
being conducted. The affairs of government are not
intended to be conducted in an atmosphere of secrecy
since at all times the public is to be the beneficiary of
any action taken at any level of government. Unless
a public body or its officers or employees specifically
elect to exercise an exemption provided by this chap-
ter or any other statute, every meeting shall be open
to the public and all public records shall be available
for inspection and copying upon request. All public
records and meetings shall be presumed open, unless
an exemption is properly invokedThe provisions of
this chapter shall be liberally construed to promote an
increased awareness by all persons of governmental
activities and afford every opportunity to citizens to
witness the operations of government. Any exemp-
tion from public access to records or meetings shall
be narrowly construed and no record shall be with-
held or meeting closed to the public unless specifically
made exempt pursuant to this chapter or other specific
provision of law. This chapter shall not be construed to
discourage the free discussion by government officials
or employees of public matters with the citizens of the
Commonwealth.
All public bodies and their officers and employees
shall make reasonable efforts to reach an agreement
with a requester concerning the production of the
records requested.
Any ordinance adopted by a local governing body
that conflicts with the provisions of this chapter shall
be void.
§ 2.2 -3701 Definitions
As used in this chapter, unless the context requires a
different meaning:
"Closed meeting" means a meeting from which the
public is excluded.
"Electronic communication" means any audio or
combined audio and visual communication method.
"Emergency" means an unforeseen circumstance
rendering the notice required by this chapter impos-
sible or impracticable and which circumstance requires
immediate action.
"Meeting" or "meetings" means the meetings
including work sessions, when sitting physically, or
through telephonic or video equipment pursuant to
§ 2.2 -3708 or 2.2- 3708.1, as a body or entity, or as an
informal assemblage of (i) as many as three members or
(ii) a quorum, if less than three, of the constituent mem-
bership, wherever held, with or without minutes being
taken, whether or not votes are cast, of any public body.
The gathering of employees of a public body shall not
be deemed a "meeting" subject to the provisions of this
chapter.
"Open meeting" or "public meeting" means a
meeting at which the public may be present.
"Public body" means any legislative body, author-
ity, board, bureau, commission, district or agency of
the Commonwealth or of any political subdivision of
the Commonwealth, including cities, towns and coun-
ties, municipal councils, governing bodies of counties,
school boards and planning commissions; boards of
visitors of public institutions of higher education; and
other organizations, corporations or agencies in the
Commonwealth supported wholly or principally by
public funds. It shall include (i) the Virginia Birth -Re-
lated Neurological Injury Compensation Program and
its board of directors established pursuant to Chapter
50 (§ 38.2 -5000 et seq.) of Title 38.2 and (ii) any com-
mittee, subcommittee, or other entity however desig-
nated, of the public body created to perform delegated
functions of the public body or to advise the public
body. It shall not exclude any such committee, subcom-
mittee or entity because it has private sector or citizen
members. Corporations organized by the Virginia
Retirement System are "public bodies" for purposes of
this chapter.
For the purposes of the provisions of this chapter
applicable to access to public records, constitutional
officers shall be considered public bodies and, except
as otherwise expressly provided by law, shall have the
same obligations to disclose public records as other
custodians of public records.
"Public records" means all writings and record-
ings that consist ofletters ' words or numbers, or their
equivalent, set down by handwriting, typewriting,
printing, photostatting, photography, magnetic im-
pulse, optical or magneto - optical form, mechanical or
electronic recording or other form of data compilation,
however stored, and regardless of physical form or
characteristics, prepared or owned by, or in the posses-
sion of a public body or its officers, employees or agents
in the transaction of public business. Records that are
not prepared for or used in the transaction of public
18 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
business are not public records.
"Regional public body means a unit of government
organized as provided by law within defined boundar-
ies, as determined by the General Assembly, whose
members are appointed by the participating local
governing bodies, and such unit includes two or more
counties or cities.
"Scholastic records" means those records contain-
ing information directly related to a student or an
applicant for admission and maintained by a public
body that is an educational agency or institution or by
a person acting for such agency or institution.
§ 2.2 -3702 Notice of chapter
Any person elected, reelected, appointed or reap-
pointed to any body not excepted from this chapter
shall (i) be furnished by the public body>s administrator
or legal counsel with a copy of this chapter within two
weeks following election, reelection, appointment or
reappointment and (ii) read and become familiar with
the provisions of this chapter.
§ 2.2 -3703 Public bodies and records to
which chapter inapplicable; voter registration
and election records; access by persons
incarcerated in a state, local, or federal
correctional facility
A. The provisions of this chapter shall not apply to:
1. The Virginia Parole Board, except that (i)
information from the Virginia Parole Board
providing the number of inmates considered by
such Board for discretionary parole, the number
of inmates granted or denied parole, and the
number of parolees returned to the custody of
the Department of Corrections solely as a result
of a determination by such Board of a violation
of parole shall be open to inspection and avail-
able for release, on a monthly basis, as provided
by § 2.2 -3704 and (ii) all records concerning the
finances of the Virginia Parole Board shall be
public records and subject to the provisions of
this chapter. The information required by clause
(i) shall be furnished by offense, sex, race, age of
the inmate, and the locality in which the convic-
tion was obtained, upon the request of the party
seeking the information;
2. Petit juries and grand juries;
3. Family assessment and planning teams estab-
lished pursuant to § 2.2 -5207;
4. The Virginia State Crime Commission; and
5. The records required by law to be maintained
by the clerks of the courts of record, as defined
in §1 -212, and courts not of record, as defined in
§ 16.1 -69.5. However, other records maintained
by the clerks of such courts shall be public records
and subject to the provisions of this chapter.
B. Public access to voter registration and election
records shall be governed by the provisions of Title
24.2 and this chapter. The provisions of Title 24.2 shall
be controlling in the event of any conflict.
C. No provision of this chapter or Chapter 21 (§ 30-
178 et seq.) of Title 30 shall be construed to afford any
rights to any person (i) incarcerated in a state, local or
federal correctional facility, whether or not such facil-
ity is (a) located in the Commonwealth or (b) operated
pursuant to the Corrections Private Management Act
(§ 53.1 -261 et seq.) or (ii) civilly committed pursuant to
the Sexually Violent Predators Act (§ 37.2 -900 et seq.).
However, this subsection shall not be construed to
prevent such persons from exercising their constitution-
ally protected rights, including, but not limited to, their
right to call for evidence in their favor in a criminal
prosecution.
§ 2.2- 3703.1 Disclosure pursuant to court order
orsubpoena
Nothing contained in this chapter shall have any
bearing upon disclosures required to be made pursuant
to any court order or subpoena. No discretionary ex-
emption from mandatory disclosure shall be construed
to make records covered by such discretionary exemp-
tion privileged under the rules of discovery, unless
disclosure is otherwise prohibited by law.
§ 2.2 -3704 Public records to be open to
inspection; procedure for requesting records
and responding to request; charges; transfer of
records for storage, etc
A. Except as otherwise specifically provided by law,
all public records shall be open to inspection and copy-
ing by any citizens of the Commonwealth during the
regular office hours of the custodian of such records.
Access to such records shall not be denied to citizens of
the Commonwealth, representatives of newspapers and
magazines with circulation in the Commonwealth, and
representatives of radio and television stations broad-
casting in or into the Commonwealth. The custodian
may require the requester to provide his name and
legal address. The custodian of such records shall take
2014 -2015 Virginia Freedom of Information Act I Conflict of ' Interests Act I Virginia Public Records Act 19
all necessary precautions for their preservation and
safekeeping.
B. A request for public records shall identify the
requested records with reasonable specificity. The re-
quest need not make reference to this chapter in order
to invoke the provisions of this chapter or to impose the
time limits for response by a public body. Any public
body that is subject to this chapter and that is the custo-
dian of the requested records shall promptly, but in all
cases within five working days of receiving a request,
provide the requested records to the requester or make
one of the following responses in writing:
1. The requested records are being entirely withheld
because their release is prohibited by law or the
custodian has exercised his discretion to withhold
the records in accordance with this chapter. Such
response shall identify with reasonable particu-
larity the volume and subject matter of withheld
records, and cite, as to each category of withheld
records, the specific Code section that authorizes
the withholding of the records.
2. The requested records are being provided in
part and are being withheld in part because the
release of part of the records is prohibited by law
or the custodian has exercised his discretion to
withhold a portion of the records in accordance
with this chapter. Such response shall identify
with reasonable particularity the subject matter
of withheld portions, and cite, as to each category
of withheld records, the specific Code section that
authorizes the withholding of the records. When
a portion of a requested record is withheld, the
public body may delete or excise only that portion
of the record to which an exemption applies and
shall release the remainder of the record.
3. The requested records could not be found or
do not exist. However, if the public body that
received the request knows that another public
body has the requested records, the response
shall include contact information for the other
public body.
4. It is not practically possible to provide the re-
quested records or to determine whether they are
available within the five - work -day period. Such
response shall specify the conditions that make
a response impossible. If the response is made
within five working days, the public body shall
have an additional seven work days in which to
provide one of the four preceding responses.
C. Any public body may petition the appropriate
court for additional time to respond to a request for
records when the request is for an extraordinary vol-
ume of records or requires an extraordinarily lengthy
search, and a response by the public body within the
time required by this chapter will prevent the public
body from meeting its operational responsibilities. Be-
fore proceeding with the petition, however, the public
body shall make reasonable efforts to reach an agree-
ment with the requester concerning the production of
the records requested.
D. Subject to the provisions of subsection G, no pub-
lic body shall be required to create a new record if the
record does not already exist. However, a public body
may abstract or summarize information under such
terms and conditions as agreed between the requester
and the public body.
E. Failure to respond to a request for records shall
be deemed a denial of the request and shall constitute a
violation of this chapter.
F. A public body may make reasonable charges not
to exceed its actual cost incurred in accessing, duplicat-
ing, supplying, or searching for the requested records.
No public body shall impose any extraneous, interme-
diary or surplus fees or expenses to recoup the general
costs associated with creating or maintaining records
or transacting the general business of the public body.
Any duplicating fee charged by a public body shall
not exceed the actual cost of duplication. The public
body may also make a reasonable charge for the cost
incurred in supplying records produced from a geo-
graphic information system at the request of anyone
other than the owner of the land that is the subject of
the request. However, such charges shall not exceed the
actual cost to the public body in supplying such re-
cords, except that the public body may charge, on a pro
rata per acre basis, for the cost of creating topographi-
cal maps developed by the public body, for such maps
or portions thereof, which encompass a contiguous area
greater than 50 acres. All charges for the supplying of
requested records shall be estimated in advance at the
request of the citizen.
G. Public records maintained by a public body in
an electronic data processing system, computer data-
base, or any other structured collection of data shall be
made available to a requester at a reasonable cost, not
to exceed the actual cost in accordance with subsection
F. When electronic or other databases are combined
or contain exempt and nonexempt records, the public
body may provide access to the exempt records if not
otherwise prohibited by law, but shall provide access to
the nonexempt records as provided by this chapter.
Public bodies shall produce nonexempt records
20 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
maintained in an electronic database in any tangible
medium identified by the requester, including, where
the public body has the capability, the option of post-
ing the records on a website or delivering the records
through an electronic mail address provided by the
requester, if that medium is used by the public body
in the regular course of business. No public body shall
be required to produce records from an electronic
database in a format not regularly used by the public
body. However, the public body shall make reasonable
efforts to provide records in any format under such
terms and conditions as agreed between the requester
and public body, including the payment of reasonable
costs. The excision of exempt fields of information from
a database or the conversion of data from one available
format to another shall not be deemed the creation,
preparation or compilation of a new public record.
H. In any case where a public body determines
in advance that charges for producing the requested
records are likely to exceed $200, the public body may,
before continuing to process the request, require the
requester to agree to payment of a deposit not to exceed
the amount of the advance determination. The deposit
shall be credited toward the final cost of supplying the
requested records. The period within which the public
body shall respond under this section shall be tolled
for the amount of time that elapses between notice of
the advance determination and the response of the
requester.
1. Before processing a request for records, a public
body may require the requester to pay any amounts
owed to the public body for previous requests for re-
cords that remain unpaid 30 days or more after billing.
J. In the event a public body has transferred posses-
sion of public records to any entity, including but not
limited to any other public body, for storage, main-
tenance, or archiving, the public body initiating the
transfer of such records shall remain the custodian of
such records for purposes of responding to requests for
public records made pursuant to this chapter and shall
be responsible for retrieving and supplying such public
records to the requester. In the event a public body has
transferred public records for storage, maintenance,
or archiving and such transferring public body is no
longer in existence, any public body that is a succes-
sor to the transferring public body shall be deemed
the custodian of such records. In the event no succes-
sor entity exists, the entity in possession of the public
records shall be deemed the custodian of the records
for purposes of compliance with this chapter, and
shall retrieve and supply such records to the requester.
Nothing in this subsection shall be construed to apply
to records transferred to the Library of Virginia for
permanent archiving pursuant to the duties imposed
by the Virginia Public Records Act (§ 42.1 -76et seq.). In
accordance with § 42.1 -79, the Library of Virginia shall
be the custodian of such permanently archived records
and shall be responsible for responding to requests for
such records made pursuant to this chapter.
§ 2.2- 3704.1 Posting of notice of rights
and responsibilities by state public bodies;
assistance by the Freedom of Information
Advisory Council
A. All state public bodies created in the executive
branch of state government and subject to the provisions
of this chapter shall make available the following informa-
tion to the public upon request and shall post such infor-
mation on their respective public government websites:
1. A plain English explanation of the rights of a
requester under this chapter, the procedures to
obtain public records from the public body, and
the responsibilities of the public body in comply-
ing with this chapter. For purposes of this section,
"plain English" means written in nontechnical,
readily understandable language using words
of common everyday usage and avoiding legal
terms and phrases or other terms and words of
art whose usage or special meaning primarily is
limited to a particular field or profession;
2. Contact information for the person designated by
the public body to (i) assist a requester in making
a request for records or (ii) respond to requests for
public records;
3. A general description, summary, list, or index of
the types of public records maintained by such
state public body;
4. A general description, summary, list, or index
of any exemptions in law that permit or require
such public records to be withheld from release;
5. Any policy the public body has concerning the
type of public records it routinely withholds from
release as permitted by this chapter or other law;
and
The following statement: "A public body may
make reasonable charges not to exceed its actual
cost incurred in accessing, duplicating, supplying,
or searching for the requested records. No public
body shall impose any extraneous, intermediary,
or surplus fees or expenses to recoup the general
costs associated with creating or maintaining
records or transacting the general business of
2014 -2015 Virginia Freedom of Information Act I Conflict of ' Interests Act I Virginia Public Records Act 21
the public body. Any duplicating fee charged by
a public body shall not exceed the actual cost of
duplication. All charges for the supplying of re-
quested records shall be estimated in advance at
the request of the citizen as set forth in subsection
F of § 2.2 -3704 of the Code of Virginia. "
B. The Freedom of Information Advisory Council,
created pursuant to § 30 -178, shall assist in the develop-
ment and implementation of the provisions of subsec-
tion A, upon request.
§ 2.2- 3705.1 Exclusions to application of
chapter; exclusions of general application to
public bodies
The following records are excluded from the provi-
sions of this chapter but may be disclosed by the custo-
dian in his discretion, except where such disclosure is
prohibited by law:
1. Personnel records containing information con-
cerning identifiable individuals, except that ac-
cess shall not be denied to the person who is the
subject thereof. Any person who is the subject of
any personnel record and who is 18 years of age
or older may waive, in writing, the protections
afforded by this subdivision. If the protections
are so waived, the public body shall open such
records for inspection and copying.
2. Written advice of legal counsel to state, regional
or local public bodies or the officers or employ-
ees of such public bodies, and any other records
protected by the attorney- client privilege.
3. Legal memoranda and other work product com-
piled specifically for use in litigation or for use in
an active administrative investigation concerning
a matter that is properly the subject of a closed
meeting under § 2.2 -3711.
4. Any test or examination used, administered or
prepared by any public body for purposes of eval-
uation of (i) any student or any student's perfor-
mance, (ii) any employee or employment seeker's
qualifications or aptitude for employment, reten-
tion, or promotion, or (iii) qualifications for any
license or certificate issued by a public body.
As used in this subdivision, "test or exami-
nation" shall include (a) any scoring key for any
such test or examination and (b) any other docu-
ment that would jeopardize the security of the
test or examination. Nothing contained in this
subdivision shall prohibit the release of test scores
or results as provided by law, or limit access to
individual records as provided by law. However,
the subject of such employment tests shall be
entitled to review and inspect all records relative
to his performance on such employment tests.
When, in the reasonable opinion of such
public body, any such test or examination no
longer has any potential for future use, and the
security of future tests or examinations will not
be jeopardized, the test or examination shall be
made available to the public. However, minimum
competency tests administered to public school
children shall be made available to the public
contemporaneously with statewide release of the
scores of those taking such tests, but in no event
shall such tests be made available to the public
later than six months after the administration of
such tests.
5. Records recorded in or compiled exclusively for
use in closed meetings lawfully held pursuant to
§2.2 -3711. However, no record that is otherwise
open to inspection under this chapter shall be
deemed exempt by virtue of the fact that it has
been reviewed or discussed in a closed meeting.
6. Vendor proprietary information software that
may be in the official records of a public body.
For the purpose of this subdivision, "vendor
proprietary software" means computer programs
acquired from a vendor for purposes of process-
ing data for agencies or political subdivisions of
the Commonwealth.
7. Computer software developed by or for a state
agency, state - supported institution of higher
education or political subdivision of the Com-
monwealth.
8. Appraisals and cost estimates of real property sub-
ject to a proposed purchase, sale or lease, prior to
the completion of such purchase, sale or lease.
9. Records concerning reserves established in spe-
cific claims administered by the Department of
the Treasury through its Division of Risk Man-
agement as provided in Article 5 (§ 2.2 -1832 et
seq.) of Chapter 18 of this title, or by any county,
city, or town; and investigative notes, correspon-
dence and information furnished in confidence
with respect to an investigation of a claim or a
potential claim against a public body's insurance
policy or self - insurance plan. However, nothing
in this subdivision shall prohibit the disclosure
of information taken from inactive reports upon
expiration of the period of limitations for the fil-
ing of a civil suit.
22 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
10. Personal information, as defined in § 2.2 -3801,
including electronic mail addresses, furnished to
a public body for the purpose of receiving elec-
tronic mail from the public body, provided that
the electronic mail recipient has requested that
the public body not disclose such information.
However, access shall not be denied to the person
who is the subject of the record.
11. Communications and materials required to be
kept confidential pursuant to § 2.2 -4119 of the
Virginia Administrative Dispute Resolution Act
(§ 2.2 -4115 et seq.).
12. Records relating to the negotiation and award
of a specific contract where competition or
bargaining is involved and where the release of
such records would adversely affect the bargain-
ing position or negotiating strategy of the public
body. Such records shall not be withheld after the
public body has made a decision to award or not
to award the contract. In the case of procurement
transactions conducted pursuant to the Virginia
Public Procurement Act (§ 2.2 -4300 et seq.), the
provisions of this subdivision shall not apply, and
any release of records relating to such transac-
tions shall be governed by the Virginia Public
Procurement Act.
13. Those portions of records that contain account
numbers or routing information for any credit
card, debit card, or other account with a finan-
cial institution of any person or public body.
However, access shall not be denied to the person
who is the subject of the record. For the purposes
of this subdivision, "financial institution" means
any organization authorized to do business under
state or federal laws relating to financial institu-
tions, including, without limitation, banks and
trust companies, savings banks, savings and loan
companies or associations, and credit unions.
§ 2.2- 3705.2 Exclusions to application of
chapter; records relating to public safety
The following records are excluded from the provi-
sions of this chapter but may be disclosed by the custo-
dian in his discretion, except where such disclosure is
prohibited by law:
1. Confidential records, including victim identity,
provided to or obtained by staff in a rape crisis
center or a program for battered spouses.
2. Those portions of engineering and construc-
tion drawings and plans submitted for the sole
purpose of complying with the Building Code in
obtaining a building permit that would identify
specific trade secrets or other information, the
disclosure of which would be harmful to the com-
petitive position of the owner or lessee. However,
such information shall be exempt only until the
building is completed. Information relating to the
safety or environmental soundness of any build-
ing shall not be exempt from disclosure.
Those portions of engineering and construc-
tion drawings and plans that reveal critical struc-
tural components, security equipment and sys-
tems, ventilation systems, fire protection equip-
ment, mandatory building emergency equip-
ment or systems, elevators, electrical systems,
telecommunications equipment and systems, and
other utility equipment and systems submitted
for the purpose of complying with the Uniform
Statewide Building Code (§ 36 -97 et seq.) or the
Statewide Fire Prevention Code (§ 27 -94 et seq.),
the disclosure of which would jeopardize the
safety or security of any public or private com-
mercial office, multifamily residential or retail
building or its occupants in the event of terrorism
or other threat to public safety, to the extent that
the owner or lessee of such property, equipment
or system in writing (i) invokes the protections of
this paragraph; (ii) identifies the drawings, plans,
or other materials to be protected; and (iii) states
the reasons why protection is necessary.
Nothing in this subdivision shall prevent the
disclosure of information relating to any building
in connection with an inquiry into the perfor-
mance of that building after it has been subjected
to fire, explosion, natural disaster or other cata-
strophic event.
3. Documentation or other information that de-
scribes the design, function, operation or access
control features of any security system, whether
manual or automated, which is used to control
access to or use of any automated data processing
or telecommunications system.
4. Plans and information to prevent or respond to
terrorist activity, the disclosure of which would
jeopardize the safety of any person, including (i)
critical infrastructure sector or structural compo-
nents; (ii) vulnerability assessments, operational,
procedural, transportation, and tactical planning
or training manuals, and staff meeting minutes
or other records; and (iii) engineering or architec-
tural records, or records containing information
derived from such records, to the extent such re-
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 23
cords reveal the location or operation of security
equipment and systems, elevators, ventilation,
fire protection, emergency, electrical, telecom-
munications or utility equipment and systems
of any public building, structure or information
storage facility, or telecommunications or utility
equipment or systems. The same categories of
records of any governmental or nongovernmental
person or entity submitted to a public body for
the purpose of antiterrorism response planning
may be withheld from disclosure if such person
or entity in writing (a) invokes the protections of
this subdivision, (b) identifies with specificity the
records or portions thereof for which protection
is sought, and (c) states with reasonable particu-
larity why the protection of such records from
public disclosure is necessary to meet the objec-
tive of antiterrorism planning or protection. Such
statement shall be a public record and shall be
disclosed upon request. Nothing in this subdivi-
sion shall be construed to prohibit the disclosure
of records relating to the structural or environ-
mental soundness of any building, nor shall it
prevent the disclosure of information relating to
any building in connection with an inquiry into
the performance of that building after it has been
subjected to fire, explosion, natural disaster or
other catastrophic event.
5. Information that would disclose the security
aspects of a system safety program plan ad-
opted pursuant to 49 C.F.R. Part 659 by the
Commonwealth>s designated Rail Fixed Guide-
way Systems Safety Oversight agency; and
information in the possession of such agency, the
release of which would jeopardize the success
of an ongoing investigation of a rail accident or
other incident threatening railway safety.
6. Engineering and architectural drawings, opera-
tional, procedural, tactical planning or train-
ing manuals, or staff meeting minutes or other
records, the disclosure of which would reveal
surveillance techniques, personnel deployments,
alarm or security systems or technologies, or op-
erational and transportation plans or protocols,
to the extent such disclosure would jeopardize
the security of any governmental facility, build-
ing or structure or the safety of persons using
such facility, building or structure.
7. Security plans and specific assessment com-
ponents of school safety audits, as provided in
§ 22.1- 279.8.
Nothing in this subdivision shall be construed to
prohibit the disclosure of records relating to the
effectiveness of security plans after (i) any school
building or property has been subjected to fire,
explosion, natural disaster or other catastrophic
event, or (ii) any person on school property has
suffered or been threatened with any personal
injury.
8. [Expired.]
9. Records of the Commitment Review Committee
concerning the mental health assessment of an
individual subject to commitment as a sexually
violent predator under Chapter 9 (§ 37.2 -900 et
seq.) of Title 37.2; except that in no case shall re-
cords identifying the victims of a sexually violent
predator be disclosed.
10. Subscriber data, which for the purposes of this
subdivision, means the name, address, telephone
number, and any other information identifying
a subscriber of a telecommunications carrier,
provided directly or indirectly by a telecommu-
nications carrier to a public body that operates
a 911 or E -911 emergency dispatch system or an
emergency notification or reverse 911 system, if
the data is in a form not made available by the
telecommunications carrier to the public gener-
ally. Nothing in this subdivision shall prevent the
release of subscriber data generated in connec-
tion with specific calls to a 911 emergency sys-
tem, where the requester is seeking to obtain pub-
lic records about the use of the system in response
to a specific crime, emergency or other event as
to which a citizen has initiated a 911 call.
11. Subscriber data, which for the purposes of this
subdivision, means the name, address, telephone
number, and any other information identifying a
subscriber of a telecommunications carrier, col-
lected by a local governing body in accordance
with the Enhanced Public Safety Telephone
Services Act (§ 56- 484.12 et seq.), and other
identifying information of a personal, medical,
or financial nature provided to a local governing
body in connection with a 911 or E -911 emer-
gency dispatch system or an emergency notifica-
tion or reverse 911 system, if such records are
not otherwise publicly available. Nothing in this
subdivision shall prevent the release of subscriber
data generated in connection with specific calls
to a 911 emergency system, where the requester
is seeking to obtain public records about the use
of the system in response to a specific crime,
24 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
emergency or other event as to which a citizen
has initiated a 911 call.
12. Records of the Virginia Military Advisory
Council or any commission created by executive
order for the purpose of studying and making
recommendations regarding preventing closure
or realignment of federal military and national
security installations and facilities located in Vir-
ginia and relocation of such facilities to Virginia,
or a local or regional military affairs organiza-
tion appointed by a local governing body, to
the extent such records (i) contain information
relating to strategies under consideration or
development by the Council or such commis-
sion or organizations to prevent the closure or
realignment of federal military installations
located in Virginia or the relocation of national
security facilities located in Virginia, to limit
the adverse economic effect of such realign-
ment, closure, or relocation, or to seek additional
tenant activity growth from the Department of
Defense or federal government or (ii) disclose
trade secrets, as defined in the Uniform Trade
Secrets Act (§ 59.1 -336 et seq.), provided to the
Council or such commission or organizations in
connection with their work. In order to invoke
the trade secret protection provided by clause (ii),
the submitting entity shall, in writing and at the
time of submission (a) invoke this exclusion, (b)
identify with specificity the information for which
such protection is sought, and (c) state the reason
why such protection is necessary. Nothing in this
subdivision shall be construed to authorize the
withholding of all or part of any record, other
than a trade secret that has been specifically
identified as required by this subdivision, after
the Department of Defense or federal agency has
issued a final, unappealable decision, or in the
event of litigation, a court of competent jurisdic-
tion has entered a final, unappealable order con-
cerning the closure, realignment, or expansion
of the military installation or tenant activities, or
the relocation of the national security facility, for
which records are sought.
13. Documentation or other information as de-
termined by the State Comptroller that de-
scribes the design, function, operation, or
implementation of internal controls over the
Commonwealth>s financial processes and sys-
tems, and the assessment of risks and vulner-
abilities of those controls, including the annual
assessment of internal controls mandated by the
State Comptroller, the disclosure of which would
jeopardize the security of the Commonwealth>s
financial assets. However, records relating to
the investigation of and findings concerning the
soundness of any fiscal process shall be disclosed
in a form that does not compromise internal
controls. Nothing in this subdivision shall be con-
strued to prohibit the Auditor of Public Accounts
or the Joint Legislative Audit and Review Com-
mission from reporting internal control deficien-
cies discovered during the course of an audit.
14. Documentation or other information relating to
the Statewide Agencies Radio System (STARS)
or any other similar local or regional public
safety communications system that (i) describes
the design, function, programming, operation,
or access control features of the overall system,
components, structures, individual networks, and
subsystems of the STARS or any other similar
local or regional communications system or (ii)
relates to radio frequencies assigned to or utilized
by STARS or any other similar local or regional
communications system, code plugs, circuit
routing, addressing schemes, talk groups, fleet
maps, encryption, programming maintained by
or utilized by STARS or any other similar local
or regional public safety communications system;
those portions of engineering and construction
drawings and plans that reveal critical structural
components, interconnectivity, security equip-
ment and systems, network monitoring, network
operation center, master sites, ventilation systems,
fire protection equipment, mandatory building
emergency equipment, electrical systems, and
other utility equipment and systems related to
STARS or any other similar local or regional
public safety communications system; and special
event plans, operational plans, storm plans, or
other pre- arranged programming, the disclosure
of which would reveal surveillance techniques,
personnel deployments, alarm or security sys-
tems or technologies, or operational and trans-
portation plans or protocols, to the extent such
disclosure would jeopardize the security of any
governmental facility, building, or structure or
the safety of any person.
15. Records of a salaried or volunteer Fire /EMS
company or Fire /EMS department, to the extent
that the records disclose the telephone numbers for
cellular telephones, pagers, or comparable portable
communication devices provided to its personnel for
use in the performance of their official duties.
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 25
16. Records of hospitals and nursing homes regu-
lated by the Board of Health pursuant to Chapter
5 (§ 32.1 -123 et seq.) of Title 32.1 provided to
the Department of Health, to the extent such
records reveal the disaster recovery plans or the
evacuation plans for such facilities in the event of
fire, explosion, natural disaster, or other cata-
strophic event. Nothing in this subdivision shall
be construed to prohibit the disclosure of records
relating to the effectiveness of executed evacua-
tion plans after the occurrence of fire, explosion,
natural disaster, or other catastrophic event.
§ 2.2- 3705.3 Exclusions to application of
chapter; records relating to administrative
investigations
The following records are excluded from the provi-
sions of this chapter but may be disclosed by the custo-
dian in his discretion, except where such disclosure is
prohibited by law:
1. Confidential records of all investigations of appli-
cations for licenses and permits, and of all licens-
ees and permittees, made by or submitted to the
Alcoholic Beverage Control Board, the Virginia
Lottery, the Virginia Racing Commission, the
Department of Agriculture and Consumer Ser-
vices relating to investigations and applications
pursuant to Article 1.1:1 (§ 18.2- 340.15 et seq.) of
Chapter 8 of Title 18.2, or the Private Security
Services Unit of the Department of Criminal
Justice Services.
2. Records of active investigations being conducted
by the Department of Health Professions or by any
health regulatory board in the Commonwealth.
3. Investigator notes, and other correspondence
and information, furnished in confidence with
respect to an active investigation of individual
employment discrimination complaints made to
the Department of Human Resource Manage-
ment, to such personnel of any local public body,
including local school boards, as are responsible
for conducting such investigations in confidence,
or to any public institution of higher education.
However, nothing in this section shall prohibit
the disclosure of information taken from inactive
reports in a form that does not reveal the iden-
tity of charging parties, persons supplying the
information, or other individuals involved in the
investigation.
4. Records of active investigations being conducted
by the Department of Medical Assistance Ser-
vices pursuant to Chapter 10 (§ 32.1 -323 et seq.)
of Title 32.1.
5. Investigative notes and other correspondence and
information furnished in confidence with respect
to an investigation or conciliation process involv-
ing an alleged unlawful discriminatory practice
under the Virginia Human Rights Act (§ 2.2-
3900 et seq.) or under any local ordinance adopt-
ed in accordance with the authority specified in
§ 2.2 -524, or adopted pursuant to § 15.2 -965, or
adopted prior to July 1, 1987, in accordance with
applicable law, relating to local human rights or
human relations commissions. However, nothing
in this section shall prohibit the distribution of
information taken from inactive reports in a form
that does not reveal the identity of the parties
involved or other persons supplying information.
6. Records of studies and investigations by the
Virginia Lottery of (i) lottery agents, (ii) lot-
tery vendors, (iii) lottery crimes under §§ 58.1-
4014 through 58.1 -4018, (iv) defects in the law or
regulations that cause abuses in the administra-
tion and operation of the lottery and any evasions
of such provisions, or (v) the use of the lottery
as a subterfuge for organized crime and illegal
gambling where such official records have not
been publicly released, published or copyrighted.
All studies and investigations referred to under
clauses (iii), (iv), and (v) shall be open to inspec-
tion and copying upon completion of the study or
investigation.
7. Investigative notes, correspondence and informa-
tion furnished in confidence, and records other-
wise exempted by this chapter or any Virginia
statute, provided to or produced by or for (i) the
Auditor of Public Accounts; (ii) the Joint Legisla-
tive Audit and Review Commission; (iii) an ap-
propriate authority as defined in § 2.2 -3010 with
respect to an allegation of wrongdoing or abuse
under the Fraud and Abuse Whistle Blower
Protection Act (§ 2.2 -3009 et seq.); (iv) the Office
of the State Inspector General with respect to an
investigation initiated through the Fraud, Waste
and Abuse Hotline or an investigation initiated
pursuant to Chapter 3.2 (§ 2.2 -307 et seq.); (v)
internal auditors appointed by the head of a state
agency or by any public institution of higher edu-
cation; (vi) the committee or the auditor with re-
spect to an investigation or audit conducted pur-
26 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
suant to §15.2 -825; or (vii) the auditors, appointed
by the local governing body of any county, city,
or town or a school board, who by charter, ordi-
nance, or statute have responsibility for conduct-
ing an investigation of any officer, department,
or program of such body. Records of completed
investigations shall be disclosed in a form that
does not reveal the identity of the complainants
or persons supplying information to investigators.
Unless disclosure is prohibited by this section, the
records disclosed shall include, but not be limited
to, the agency involved, the identity of the person
who is the subject of the complaint, the nature of
the complaint, and the actions taken to resolve
the complaint. If an investigation does not lead to
corrective action, the identity of the person who
is the subject of the complaint may be released
only with the consent of the subject person. Local
governing bodies shall adopt guidelines to govern
the disclosure required by this subdivision.
8. Information furnished in confidence to the
Department of Human Resource Management
with respect to an investigation, consultation, or
mediation under § 2.2- 1202.1, and memoranda,
correspondence and other records resulting from
any such investigation, consultation or media-
tion. However, nothing in this section shall pro-
hibit the distribution of information taken from
inactive reports in a form that does not reveal the
identity of the parties involved or other persons
supplying information.
9. The names, addresses and telephone numbers
of complainants furnished in confidence with
respect to an investigation of individual zoning
enforcement complaints or complaints relating to
the Uniform Statewide Building Code (§ 36 -97 et
seq.) or the Statewide Fire Prevention Code (§ 27-
94 et seq.) made to alocal governing body.
10. Records of active investigations being conducted
by the Department of Criminal justice Services
pursuant to Article 4 (§ 9.1 -138 et seq.), Article
4.1 (§ 9.1 -150.1 et seq.), Article 11 (§ 9.1 -185 et
seq.), and Article 12 (§ 9.1 -186 et seq.) of Chapter
1 of Title 9.1.
11. Records furnished to or prepared by the Board
of Education pursuant to subsection D of § 22.1-
253.13:3 in connection with the review or inves-
tigation of any alleged breach in security, unau-
thorized alteration, or improper administration
of tests by local school board employees respon-
sible for the distribution or administration of the
tests. However, this section shall not prohibit the
disclosure of records to (i) a local school board or
division superintendent for the purpose of permit-
ting such board or superintendent to consider or to
take personnel action with regard to an employee
or (ii) any requester; after the conclusion of a
review or investigation, in a form that (a) does not
reveal the identity of any person making a com-
plaint or supplying information to the Board on a
confidential basis and (b) does not compromise the
security of any test mandated by the Board.
12. Investigator notes, and other correspondence
and information, furnished in confidence with
respect to an active investigation conducted by or
for the Board of Education related to the denial,
suspension, or revocation of teacher licenses.
However, this subdivision shall not prohibit the
disclosure of records to a local school board or
division superintendent for the purpose of per-
mitting such board or superintendent to consider
or to take personnel action with regard to an
employee. Records of completed investigations
shall be disclosed in a form that does not reveal
the identity of any complainant or person sup-
plying information to investigators. The records
disclosed shall include information regarding
the school or facility involved, the identity of the
person who was the subject of the complaint, the
nature of the complaint, and the actions taken to
resolve the complaint. If an investigation fails to
support a complaint or does not lead to correc-
tive action, the identity of the person who was
the subject of the complaint may be released
only with the consent of the subject person. No
personally identifiable information in the records
regarding a current or former student shall be re-
leased except as permitted by state or federal law.
13. Records, notes and information provided in
confidence and related to an investigation by the
Attorney General under Article 1 (§ 3.2 -4200 et
seq.) or Article 3 (§ 3.2 -4204 et seq.) of Chapter
42 of Title 3.2, Article 10 (§ 18.2 -246.6 et seq.)
of Chapter 6 or Chapter 13 (§ 18.2 -512 et seq.) of
Title 18.2, or Article 1 (§ 58.1 -1000 ) of Chapter
10 of Title 58.1. However, records related to an
investigation that has been inactive for more
than six months shall, upon request, be disclosed
provided such disclosure is not otherwise pro-
hibited by law and does not reveal the identity of
charging parties, complainants, persons supply-
ing information, witnesses, or other individuals
involved in the investigation.
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 27
§ 2.2- 3705.4 Exclusions to application of
chapter; educational records and certain
records of educational institutions
The following records are excluded from the provi-
sions of this chapter but may be disclosed by the custo-
dian in his discretion, except where such disclosure is
prohibited by law:
1. Scholastic records containing information con-
cerning identifiable individuals, except that such
access shall not be denied to the person who is
the subject thereof, or the parent or legal guard-
ian of the student. However, no student shall
have access to (i) financial records of a parent or
guardian or (ii) records of instructional, super-
visory, and administrative personnel and edu-
cational personnel ancillary thereto, that are in
the sole possession of the maker thereof and that
are not accessible or revealed to any other person
except a substitute.
The parent or legal guardian of a student
may prohibit, by written request, the release of
any individual information regarding that stu-
dent until the student reaches the age of 18 years.
For scholastic records of students under the age of
18 years, the right of access may be asserted only
by his legal guardian or parent, including a non-
custodial parent, unless such parent >s parental
rights have been terminated or a court of com-
petent jurisdiction has restricted or denied such
access. For scholastic records of students who
are emancipated or attending a state - supported
institution of higher education, the right of access
may be asserted by the student.
Any person who is the subject of any scholas-
tic record and who is 18 years of age or older may
waive, in writing, the protections afforded by this
subdivision. If the protections are so waived, the
public body shall open such records for inspec-
tion and copying.
2. Confidential letters and statements of recom-
mendation placed in the records of educational
agencies or institutions respecting (i) admission
to any educational agency or institution, (ii) an
application for employment or promotion, or (iii)
receipt of an honor or honorary recognition.
3. Records of the Brown v. Board of Education
Scholarship Awards Committee relating to
personally identifiable information, including
scholarship applications, personal financial in-
formation, and confidential correspondence and
letters of recommendation.
4. Data, records or information of a proprietary
nature produced or collected by or for faculty
or staff of public institutions of higher educa-
tion, other than the institutions> financial or
administrative records, in the conduct of or as a
result of study or research on medical, scientific,
technical or scholarly issues, whether sponsored
by the institution alone or in conjunction with a
governmental body or a private concern, where
such data, records or information has not been
publicly released, published, copyrighted or
patented.
5. All records of the University of Virginia or the
University of Virginia Medical Center or East-
ern Virginia Medical School, as the case may
be, that contain proprietary, business- related
information pertaining to the operations of the
University of Virginia Medical Center or Eastern
Virginia Medical School, as the case may be,
including business development or marketing
strategies and activities with existing or future
joint venturers, partners, or other parties with
whom the University of Virginia Medical Center
or Eastern Virginia Medical School, as the case
may be, has formed, or forms, any arrangement
for the delivery of health care, if disclosure of
such information would be harmful to the com-
petitive position of the Medical Center or Eastern
Virginia Medical School, as the case may be.
6. Personal information, as defined in § 2.2 -3801,
provided to the Board of the Virginia College
Savings Plan or its employees by or on behalf
of individuals who have requested information
about, applied for, or entered into prepaid tuition
contracts or savings trust account agreements
pursuant to Chapter 4.9 (§ 23 -38.75 et seq.) of
Title 23. Nothing in this subdivision shall be
construed to prohibit disclosure or publication
of information in a statistical or other form that
does not identify individuals or provide personal
information. Individuals shall be provided access
to their own personal information.
7. Records maintained in connection with fund-
raising activities by or for a public institution of
higher education to the extent that such records
reveal (i) personal fundraising strategies relating
to identifiable donors or prospective donors or (ii)
wealth assessments; estate, financial, or tax plan-
ning information; health - related information;
employment, familial, or marital status infor-
mation; electronic mail addresses, facsimile or
28 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
telephone numbers; birth dates or social security
numbers of identifiable donors or prospective
donors. Nothing in this subdivision, however,
shall be construed to authorize the withholding
of records relating to the amount, date, purpose,
and terms of the pledge or donation, or the iden-
tity of the donor unless the donor has requested
anonymity in connection with or as a condition
of making a pledge or donation. The exclusion
provided by this subdivision shall not apply to
protect from disclosure (i) the identities of spon-
sors providing grants to or contracting with
the institution for the performance of research
services or other work or (ii) the terms and condi-
tions of such grants or contracts.
8. Records of a threat assessment team established
by a public institution of higher education pursu-
ant to § 23- 9.2:10 relating to the assessment or in-
tervention with a specific individual. However, in
the event an individual who has been under as-
sessment commits an act, or is prosecuted for the
commission of an act that has caused the death
of, or caused serious bodily injury, including any
felony sexual assault, to another person, the re-
cords of such threat assessment team concerning
the individual under assessment shall be made
available as provided by this chapter, with the ex-
ception of any criminal history records obtained
pursuant to § 19.2 -389or 19.2 - 389.1, health
records obtained pursuant to § 32.1 - 127.1:03, or
scholastic records as defined in § 22.1 -289. The
public body providing such records shall remove
information identifying any person who provided
information to the threat assessment team under
a promise of confidentiality.
§ 2.2- 3705.5 Exclusions to application of
chapter; health and social services records
The following records are excluded from the provi-
sions of this chapter but may be disclosed by the custo-
dian in his discretion, except where such disclosure is
prohibited by law:
1. Health records, except that such records may be
personally reviewed by the individual who is the
subject of such records, as provided in subsection
F of § 32.1 - 127.1:03.
Where the person who is the subject of health
records is confined in a state or local correctional
facility, the administrator or chief medical officer
of such facility may assert such confined person's
right of access to the health records if the admin-
istrator or chief medical officer has reasonable
cause to believe that such confined person has
an infectious disease or other medical condition
from which other persons so confined need to be
protected. Health records shall only be reviewed
and shall not be copied by such administrator
or chief medical officer. The information in the
health records of a person so confined shall con-
tinue to be confidential and shall not be disclosed
by the administrator or chief medical officer of
the facility to any person except the subject or
except as provided by law.
Where the person who is the subject of health
records is under the age of 18, his right of access
may be asserted only by his guardian or his par-
ent, including a noncustodial parent, unless such
parent's parental rights have been terminated, a
court of competent jurisdiction has restricted or
denied such access, or a parent has been denied
access to the health record in accordance with
§ 20- 124.6. In instances where the person who
is the subject thereof is an emancipated minor,
a student in a public institution of higher educa-
tion, or is a minor who has consented to his own
treatment as authorized by § 16.1 -338 or 54.1-
2969, the right of access may be asserted by the
subject person.
For the purposes of this chapter, statisti-
cal summaries of incidents and statistical data
concerning abuse of individuals receiving ser-
vices compiled by the Commissioner of Behav-
ioral Health and Developmental Services shall
be open to inspection and copying as provided
in § 2.2 -3704. No such summaries or data shall
include any information that identifies specific
individuals receiving services.
2. Applications for admission to examinations or for
licensure and scoring records maintained by the
Department of Health Professions or any board
in that department on individual licensees or
applicants. However, such material may be made
available during normal working hours for copy-
ing, at the requester's expense, by the individual
who is the subject thereof, in the offices of the
Department of Health Professions or in the of-
fices of any health regulatory board, whichever
may possess the material.
3. Reports, documentary evidence and other in-
formation as specified in §§ 51.5 -122, 51.5 -141,
and63.2 -104.
4. Investigative notes; proprietary information not
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 29
published, copyrighted or patented; informa-
tion obtained from employee personnel records;
personally identifiable information regarding
residents, clients or other recipients of services;
other correspondence and information furnished
in confidence to the Department of Social Ser-
vices in connection with an active investigation
of an applicant or licensee pursuant to Chapters
17 (§ 63.2 -1700 et seq.) and 18 (§ 63.2 -1800 et
seq.) of Title 63.2; and records and information
furnished to the Office of the Attorney General
in connection with an investigation or litigation
pursuant to Article 19.1 (§ 8.01 -216.1 et seq.) of
Chapter 3 of Title 8.01 and Chapter 9 (§ 32.1-
310 et seq.) of Title 32.1. However, nothing in this
section shall prohibit disclosure of information
from the records of completed investigations in
a form that does not reveal the identity of com-
plainants, persons supplying information, or
other individuals involved in the investigation.
5. Information and records collected for the des-
ignation and verification of trauma centers and
other specialty care centers within the Statewide
Emergency Medical Services System and Ser-
vices pursuant to Article 2.1 (§ 32.1 -111.1 et seq.)
of Chapter 4 of Title 32.1.
6. Reports and court documents relating to involun-
tary admission required to be kept confidential
pursuant to § 37.2 -818.
7. Data formerly required to be submitted to the
Commissioner of Health relating to the establish-
ment of new or the expansion of existing clinical
health services, acquisition of major medical
equipment, or certain projects requiring capital
expenditures pursuant to former § 32.1- 102.3:4.
8. Information required to be provided to the
Department of Health Professions by certain
licensees pursuant to § 54.1 - 2506.1.
9. Information and records acquired (i) during a
review of any child death conducted by the State
Child Fatality Review team established pursuant
to § 32.1 -283.1 or by a local or regional child fatal-
ity review team to the extent made confidential by
§ 32.1 - 283.2; (ii) during a review of any death con-
ducted by a family violence fatality review team
to the extent made confidential by § 32.1 - 283.3; or
(iii) during a review of any adult death conducted
by the Adult Fatality Review Team to the extent
made confidential by § 32.1 - 283.5.
10. Patient level data collected by the Board of
Health and not yet processed, verified, and
released, pursuant to § 32.1- 276.9, to the Board
by the nonprofit organization with which the
Commissioner of Health has contracted pursuant
to § 32.1- 276.4.
11. Records of the Health Practitioners' Monitor-
ing Program Committee within the Department
of Health Professions, to the extent such records
may identify any practitioner who may be, or
who is actually, impaired to the extent disclosure
is prohibited by § 54.1 -2517.
12. Records submitted as a grant application, or
accompanying a grant application, to the Com-
monwealth Neurotrauma Initiative Advisory
Board pursuant to Article 12 (§ 51.5 -178 et seq.)
of Chapter 14 of Title 51.5, to the extent such
records contain (i) medical or mental health
records, or other data identifying individual
patients or (ii) proprietary business or research -
related information produced or collected by the
applicant in the conduct of or as a result of study
or research on medical, rehabilitative, scientific,
technical or scholarly issues, when such informa-
tion has not been publicly released, published,
copyrighted or patented, if the disclosure of such
information would be harmful to the competitive
position of the applicant.
13. Any record copied, recorded or received by the
Commissioner of Health in the course of an ex-
amination, investigation or review of a managed
care health insurance plan licensee pursuant to
§§ 32.1 -137.4 and 32.1 - 137.5, including books,
records, files, accounts, papers, documents, and
any or all computer or other recordings.
14. Records, information and statistical registries
required to be kept confidential pursuant to
§ §63.2 -102 and 63.2 -104.
15. All data, records, and reports relating to the
prescribing and dispensing of covered substances
to recipients and any abstracts from such data,
records, and reports that are in the possession of
the Prescription Monitoring Program pursuant
to Chapter 25.2 (§ 54.1 -2519 et seq.) of Title 54.1
and any material relating to the operation or
security of the Program.
16. Records of the Virginia Birth- Related Neuro-
logical Injury Compensation Program required
to be kept confidential pursuant to § 38.2- 5002.2.
17. Records of the State Health Commissioner relat-
ing to the health of any person or persons subject
to an order of quarantine or an order of isolation
30 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
pursuant to Article 3.02 (§ 32.1 -48.05 et seq.) of
Chapter 2 of Title 32.1; this provision shall not,
however, be construed to prohibit the disclosure
of statistical summaries, abstracts or other infor-
mation in aggregate form.
18. Records containing the names and addresses or
other contact information of persons receiving
transportation services from a state or local public
body or its designee under Title II of the Ameri-
cans with Disabilities Act, (42 U.S.C. § 12131
et seq.) or funded by Temporary Assistance for
Needy Families (TANF) created under § 63.2 -600
§ 2.2- 3705.6 Exclusions to application of
chapter; proprietary records and trade secrets
The following records are excluded from the provi-
sions of this chapter but may be disclosed by the custo-
dian in his discretion, except where such disclosure is
prohibited by law:
1. Proprietary information gathered by or for the
Virginia Port Authority as provided in § 62.1-
132.4 or 62.1- 134.1.
2. Financial statements not publicly available filed
with applications for industrial development fi-
nancings in accordance with Chapter 49 (§ 15.2-
4900 et seq.) of Title 15.2.
3. Confidential proprietary records, voluntarily pro-
vided by private business pursuant to a promise
of confidentiality from a public body, used by
the public body for business, trade and tour-
ism development or retention; and memoranda,
working papers or other records related to busi-
nesses that are considering locating or expanding
in Virginia, prepared by a public body, where
competition or bargaining is involved and where,
if such records are made public, the financial
interest of the public body would be adversely
affected.
4. Information that was filed as confidential under
the Toxic Substances Information Act (§ 32.1-
239 et seq.), as such Act existed prior to July 1
1992.
5. Fisheries data that would permit identification
of any person or vessel, except when required by
court order as specified in § 28.2 -204.
6. Confidential financial statements, balance sheets,
trade secrets, and revenue and cost projections
provided to the Department of Rail and Public
Transportation, provided such information is
exempt under the federal Freedom of Informa-
tion Act or the federal Interstate Commerce
Act or other laws administered by the Surface
Transportation Board or the Federal Railroad
Administration with respect to data provided in
confidence to the Surface Transportation Board
and the Federal Railroad Administration.
7. Confidential proprietary records related to inven-
tory and sales, voluntarily provided by private
energy suppliers to the Department of Mines,
Minerals and Energy, used by that Department
for energy contingency planning purposes or for
developing consolidated statistical information on
energy supplies.
8. Confidential proprietary information furnished
to the Board of Medical Assistance Services
or the Medicaid Prior Authorization Advisory
Committee pursuant to Article 4 (§ 32.1- 331.12 et
seq.) of Chapter 10 of Title 32.1.
9. Proprietary, commercial or financial information,
balance sheets, trade secrets, and revenue and
cost projections provided by a private transpor-
tation business to the Virginia Department of
Transportation and the Department of Rail and
Public Transportation for the purpose of con-
ducting transportation studies needed to obtain
grants or other financial assistance under the
Transportation Equity Act for the 21st Century
(P.L. 105 -178) for transportation projects, pro-
vided such information is exempt under the fed-
eral Freedom of Information Act or the federal
Interstate Commerce Act or other laws adminis-
tered by the Surface Transportation Board or the
Federal Railroad Administration with respect
to data provided in confidence to the Surface
Transportation Board and the Federal Railroad
Administration. However, the exemption pro-
vided by this subdivision shall not apply to any
wholly owned subsidiary of a public body.
10. Confidential information designated as provided
in subsection F of § 2.2 -4342 as trade secrets or
proprietary information by any person who has
submitted to a public body an application for
prequalification to bid on public construction
projects in accordance with subsection B of § 2.2-
4317.
11. a. Memoranda, staff evaluations, or other re-
cords prepared by the responsible public entity,
its staff, outside advisors, or consultants exclusive-
ly for the evaluation and negotiation of proposals
filed under the Public- Private Transportation Act
of 1995 (§ 56 -556 et seq.) or the Public Private
2014 -2015 Virginia Freedom of Information Act I Conflict of ' Interests Act I Virginia Public Records Act 31
Education Facilities and Infrastructure Act of
2002 (§ 56 -575.1 et seq.), where (i) if such records
were made public prior to or after the execution
of an interim or a comprehensive agreement,
§ 56- 573.1:1 or 56- 575.17 notwithstanding, the
financial interest or bargaining position of the
public entity would be adversely affected, and (ii)
the basis for the determination required in clause
(i) is documented in writing by the responsible
public entity; and
b. Records provided by a private entity to a re-
sponsible public entity, affected jurisdiction, or
affected local jurisdiction pursuant to the provi-
sions of the Public- Private Transportation Act of
1995 or the Public - Private Education Facilities
and Infrastructure Act of 2002, to the extent that
such records contain (i) trade secrets of the pri-
vate entity as defined in the Uniform Trade Se-
crets Act (§ 59.1 -336 et seq.); (ii) financial records
of the private entity, including balance sheets and
financial statements, that are not generally avail-
able to the public through regulatory disclosure
or otherwise; or (iii) other information submitted
by the private entity, where, if the records were
made public prior to the execution of an interim
agreement or a comprehensive agreement, the
financial interest or bargaining position of the
public or private entity would be adversely affect-
ed. In order for the records specified in clauses (i),
(ii), and (iii) to be excluded from the provisions of
this chapter, the private entity shall make a writ-
ten request to the responsible public entity:
1. Invoking such exclusion upon submission
of the data or other materials for which protec-
tion from disclosure is sought;
2. Identifying with specificity the data or
other materials for which protection is sought;
and
3. Stating the reasons why protection is neces-
sary.
The responsible public entity shall determine
whether the requested exclusion from disclo-
sure is necessary to protect the trade secrets or
financial records of the private entity. To protect
other records submitted by the private entity
from disclosure, the responsible public entity
shall determine whether public disclosure prior
to the execution of an interim agreement or a
comprehensive agreement would adversely af-
fect the financial interest or bargaining position
of the public or private entity. The responsible
public entity shall make a written determination
of the nature and scope of the protection to be
afforded by the responsible public entity under
this subdivision. Once a written determination is
made by the responsible public entity, the records
afforded protection under this subdivision shall
continue to be protected from disclosure when
in the possession of any affected jurisdiction or
affected local jurisdiction.
Except as specifically provided in subdi-
vision 11 a, nothing in this subdivision shall
be construed to authorize the withholding of
(a) procurement records as required by § 56-
573.1:1 or 56- 575.17; (b) information concern-
ing the terms and conditions of any interim or
comprehensive agreement, service contract,
lease, partnership, or any agreement of any kind
entered into by the responsible public entity and
the private entity; (c) information concerning the
terms and conditions of any financing arrange-
ment that involves the use of any public funds;
or (d) information concerning the performance
of any private entity developing or operating a
qualifying transportation facility or a qualifying
project.
For the purposes of this subdivision, the terms
"affected jurisdiction," "affected local jurisdic-
tion," "comprehensive agreement," "interim
agreement," "qualifying project," "qualifying
transportation facility," "responsible public
entity," and "private entity" shall mean the same
as those terms are defined in the Public- Private
Transportation Act of 1995 or in the Public -
Private Education Facilities and Infrastructure
Act of 2002.
12. Confidential proprietary information or trade
secrets, not publicly available, provided by a pri-
vate person or entity to the Virginia Resources
Authority or to a fund administered in connec-
tion with financial assistance rendered or to be
rendered by the Virginia Resources Authority
where, if such information were made public, the
financial interest of the private person or entity
would be adversely affected, and, after June 30,
1997, where such information was provided pur-
suant to a promise of confidentiality.
13. Trade secrets, as defined in the Uniform Trade
Secrets Act (§ 59.1 -336 et seq.), or confidential
proprietary records that are not generally avail-
able to the public through regulatory disclosure
or otherwise, provided by a (a) bidder or ap-
plicant for a franchise or (b) franchisee under
Chapter 21 ( §15.2 -2100 et seq.) of Title 15.2 to
32 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
the applicable franchising authority pursuant to
a promise of confidentiality from the franchis-
ing authority, to the extent the records relate to
the bidder's, applicant's, or franchisee's financial
capacity or provision of new services, adoption of
new technologies or implementation of improve-
ments, where such new services, technologies or
improvements have not been implemented by
the franchisee on a nonexperimental scale in the
franchise area, and where, if such records were
made public, the competitive advantage or finan-
cial interests of the franchisee would be adversely
affected.
In order for trade secrets or confidential
proprietary information to be excluded from
the provisions of this chapter, the bidder, appli-
cant, or franchisee shall (i) invoke such exclusion
upon submission of the data or other materials
for which protection from disclosure is sought,
(ii) identify the data or other materials for which
protection is sought, and (iii) state the reason why
protection is necessary.
No bidder, applicant, or franchisee may
invoke the exclusion provided by this subdivision
if the bidder, applicant, or franchisee is owned or
controlled by a public body or if any representa-
tive of the applicable franchising authority serves
on the management board or as an officer of the
bidder, applicant, or franchisee.
14. Documents and other information of a propri-
etary nature furnished by a supplier of charitable
gaming supplies to the Department of Agricul-
ture and Consumer Services pursuant to subsec-
tion E of § 18.2- 340.34.
15. Records and reports related to Virginia apple
producer sales provided to the Virginia State
Apple Board pursuant to § 3.2 -1215.
16. Trade secrets, as defined in the Uniform Trade
Secrets Act (§ 59.1 -336 et seq.) of Title 59.1,
submitted by CMRS providers as defined in
§ 56- 484.12 to the Wireless Carrier E -911 Cost
Recovery Subcommittee created pursuant to
§ 56- 484.15, relating to the provision of wireless
E -911 service.
17. Records submitted as a grant or loan applica-
tion, or accompanying a grant or loan applica-
tion, to the Innovation and Entrepreneurship
Investment Authority pursuant to Article 3 (§ 2.2-
2233.1 et seq.) of Chapter 22 of Title 2.2 or to the
Commonwealth Health Research Board pursu-
ant to Chapter 22 (§ 23 -277 et seq.) of Title 23 to
the extent such records contain proprietary busi-
ness or research - related information produced or
collected by the applicant in the conduct of or as
a result of study or research on medical, reha-
bilitative, scientific, technical, technological, or
scholarly issues, when such information has not
been publicly released, published, copyrighted,
or patented, if the disclosure of such information
would be harmful to the competitive position of
the applicant.
18. Confidential proprietary records and trade se-
crets developed and held by a local public body (i)
providing telecommunication services pursuant
to § 56- 265.4:4 and (ii) providing cable television
services pursuant to Article 1.1 (§ 15.2 - 2108.2 et
seq.) of Chapter 21 of Title 15.2, to the extent
that disclosure of such records would be harm-
ful to the competitive position of the locality. In
order for confidential proprietary information
or trade secrets to be excluded from the provi-
sions of this chapter, the locality in writing shall
(a) invoke the protections of this subdivision, (b)
identify with specificity the records or portions
thereof for which protection is sought, and (c)
state the reasons why protection is necessary.
19. Confidential proprietary records and trade
secrets developed by or for a local authority cre-
ated in accordance with the Virginia Wireless
Service Authorities Act (§ 15.2- 5431.1 et seq.) to
provide qualifying communications services as
authorized by Article 5.1 (§ 56- 484.7:1 et seq.) of
Chapter 15 of Tide 56, where disclosure of such
information would be harmful to the competi-
tive position of the authority, except that records
required to be maintained in accordance with
§ 15.2 -2160 shall be released.
20. Trade secrets as defined in the Uniform Trade
Secrets Act (§ 59.1 -336 et seq.) or financial
records of a business, including balance sheets
and financial statements, that are not generally
available to the public through regulatory disclo-
sure or otherwise, provided to the Department
of Small Business and Supplier Diversity as part
of an application for (i) certification as a small,
women- owned, or minority -owned business in
accordance with Chapter 16.1 (§ 2.2 -1603 et seq.)
or (ii) a claim made by a disadvantaged business
or an economically disadvantaged individual
against the Capital Access Fund for Disadvan-
taged Businesses created pursuant to § 2.2 -2311.
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 33
In order for such trade secrets or financial
records to be excluded from the provisions of this
chapter, the business shall (a) invoke such exclu-
sion upon submission of the data or other materi-
als for which protection from disclosure is sought,
(b) identify the data or other materials for which
protection is sought, and (c) state the reasons why
protection is necessary.
21. Documents and other information of a propri-
etary or confidential nature disclosed by a carrier
to the State Health Commissioner pursuant to
§§ 32.1- 276.5:1 and 32.1 - 276.7:1.
22. Trade secrets, as defined in the Uniform Trade
Secrets Act (§ 59.1 -336 et seq.), including, but not
limited to, financial records, including balance
sheets and financial statements, that are not
generally available to the public through regula-
tory disclosure or otherwise, and revenue and
cost projections supplied by a private or nongov-
ernmental entity to the State Inspector General
for the purpose of an audit, special investigation,
or any study requested by the Office of the State
Inspector General in accordance with law.
In order for the records specified in this sub-
division to be excluded from the provisions of this
chapter, the private or nongovernmental entity
shall make a written request to the State Inspec-
tor General:
1. Invoking such exclusion upon submission
of the data or other materials for which protec-
tion from disclosure is sought;
2. Identifying with specificity the data or
other materials for which protection is sought;
and
3. Stating the reasons why protection is
necessary.
The State Inspector General shall determine
whether the requested exclusion from disclo-
sure is necessary to protect the trade secrets or
financial records of the private entity. The State
Inspector General shall make a written determi-
nation of the nature and scope of the protection
to be afforded by it under this subdivision.
23. Records submitted as a grant application, or
accompanying a grant application, to the Vir-
ginia Tobacco Indemnification and Community
Revitalization Commission to the extent such
records contain (i) trade secrets as defined in the
Uniform Trade Secrets Act (§ 59.1 -336 et seq.),
(ii) financial records of a grant applicant that is
not a public body, including balance sheets and
financial statements, that are not generally avail-
able to the public through regulatory disclosure
or otherwise, or (iii) research- related information
produced or collected by the applicant in the
conduct of or as a result of study or research on
medical, rehabilitative, scientific, technical, tech-
nological, or scholarly issues, when such informa-
tion has not been publicly released, published,
copyrighted, or patented, if the disclosure of such
information would be harmful to the competi-
tive position of the applicant; and memoranda,
staff evaluations, or other records prepared by
the Commission or its staff exclusively for the
evaluation of grant applications. The exclusion
provided by this subdivision shall apply to grants
that are consistent with the powers of and in fur-
therance of the performance of the duties of the
Commission pursuant to § 3.2 -3103.
In order for the records specified in this
subdivision to be excluded from the provisions of
this chapter, the applicant shall make a written
request to the Commission:
1. Invoking such exclusion upon submission
of the data or other materials for which protec-
tion from disclosure is sought;
2. Identifying with specificity the data, re-
cords or other materials for which protection is
sought; and
3. Stating the reasons why protection is
necessary.
The Commission shall determine whether the
requested exclusion from disclosure is necessary
to protect the trade secrets, financial records or
research- related information of the applicant.
The Commission shall make a written determi-
nation of the nature and scope of the protection
to be afforded by it under this subdivision.
24. a. Records of the Commercial Space Flight
Authority relating to rate structures or charges for
the use of projects of, the sale of products of, or
services rendered by the Authority if public disclo-
sure would adversely affect the financial interest or
bargaining position of the Authority or a private
entity providing records to the Authority; or
b. Records provided by a private entity to the
Commercial Space Flight Authority, to the extent
that such records contain (i) trade secrets of the
private entity as defined in the Uniform Trade
Secrets Act (§ 59.1 -336 et seq.); (ii) financial
records of the private entity, including balance
sheets and financial statements, that are not gen-
erally available to the public through regulatory
34 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
disclosure or otherwise; or (iii) other informa-
tion submitted by the private entity, where, if the
records were made public, the financial interest
or bargaining position of the Authority or private
entity would be adversely affected.
In order for the records specified in clauses
(i), (ii), and (iii) of subdivision 24 b to be excluded
from the provisions of this chapter, the private
entity shall make a written request to the
Authority:
1. Invoking such exclusion upon submission
of the data or other materials for which protec-
tion from disclosure is sought;
2. Identifying with specificity the data or
other materials for which protection is sought;
and
3. Stating the reasons why protection is
necessary.
The Authority shall determine whether the
requested exclusion from disclosure is necessary
to protect the trade secrets or financial records of
the private entity. To protect other records sub-
mitted by the private entity from disclosure, the
Authority shall determine whether public disclo-
sure would adversely affect the financial interest
or bargaining position of the Authority or private
entity. The Authority shall make a written deter-
mination of the nature and scope of the protec-
tion to be afforded by it under this subdivision.
25. Documents and other information of a
proprietary nature furnished by an agricultural
landowner or operator to the Department of
Conservation and Recreation, the Department
of Environmental Quality, the Department
of Agriculture and Consumer Services or any
political subdivision, agency, or board of the
Commonwealth pursuant to §§ 10.1- 104.7, 10.1-
104.8, andl0.1- 104.9, other than when
required as part of a state or federal regulatory
enforcement action.
26. Trade secrets, as defined in the Uniform Trade
Secrets Act (§ 59.1 -336 et seq.), provided to the
Department of Environmental Quality pursuant
to the provisions of § 10.1 -1458. In order for such
trade secrets to be excluded from the provisions
of this chapter, the submitting party shall (i)
invoke this exclusion upon submission of the data
or materials for which protection from disclo-
sure is sought, (ii) identify the data or materials
for which protection is sought, and (iii) state the
reasons why protection is necessary.
27. Documents and other information of a propri-
etary nature furnished by a licensed public -use
airport to the Department of Aviation for fund-
ing from programs administered by the Depart-
ment of Aviation or the Virginia Aviation Board,
where if the records were made public, the
financial interest of the public -use airport would
be adversely affected.
In order for the records specified in this
subdivision to be excluded from the provisions of
this chapter, the public -use airport shall make a
written request to the Department of Aviation:
1. Invoking such exclusion upon submission
of the data or other materials for which protec-
tion from disclosure is sought;
2. Identifying with specificity the data or
other materials for which protection is sought;
and
3. Stating the reasons why protection is
necessary.
§ 2.2- 3705.7 Exclusions to application of
chapter; records of specific public bodies and
certain other limited exemptions
The following records are excluded from the provi-
sions of this chapter but may be disclosed by the custo-
dian in his discretion, except where such disclosure is
prohibited by law:
1. State income, business, and estate tax returns,
personal property tax returns, scholastic and
confidential records held pursuant to § 58.1 -3.
2. Working papers and correspondence of the Of-
fice of the Governor; Lieutenant Governor; the
Attorney General; the members of the General
Assembly, the Division of Legislative Services
or the Clerks of the House of Delegates and the
Senate of Virginia; the mayor or chief executive
officer of any political subdivision of the Com-
monwealth; or the president or other chief execu-
tive officer of any public institution of higher edu-
cation in Virginia. However, no record, which is
otherwise open to inspection under this chapter,
shall be deemed exempt by virtue of the fact that
it has been attached to or incorporated within
any working paper or correspondence.
As used in this subdivision:
"Members of the General Assembly" means
each member of the Senate of Virginia and the
House of Delegates and their legislative aides
when working on behalf of such member.
"Office of the Governor" means the Gover-
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 35
nor; his chief of staff, counsel, director of policy,
Cabinet Secretaries, and the Assistant to the
Governor for Intergovernmental Affairs; and
those individuals to whom the Governor has del-
egated his authority pursuant to § 2.2 -104.
"Working papers means those records pre-
pared by or for an above -named public official
for his personal or deliberative use.
3. Library records that can be used to identify both
(i) any library patron who has borrowed material
from a library and (ii) the material such patron
borrowed.
4. Contract cost estimates prepared for the confi-
dential use of the Department of Transportation
in awarding contracts for construction or the
purchase of goods or services, and records and
automated systems prepared for the Depart-
ment's Bid Analysis and Monitoring Program.
5. Lists of registered owners of bonds issued by
a political subdivision of the Commonwealth,
whether the lists are maintained by the political
subdivision itself or by a single fiduciary desig-
nated by the political subdivision.
6. Records and writings furnished by a member of
the General Assembly to a meeting of a standing
committee, special committee or subcommittee
of his house established solely for the purpose of
reviewing members' annual disclosure statements
and supporting materials filed under § 30 -110 or
of formulating advisory opinions to members on
standards of conduct, or both.
7. Customer account information of a public util-
ity affiliated with a political subdivision of the
Commonwealth, including the customers name
and service address, but excluding the amount of
utility service provided and the amount of money
paid for such utility service.
8. Personal information, as defined in § 2.2 -3801,
(i) filed with the Virginia Housing Development
Authority concerning individuals who have
applied for or received loans or other housing
assistance or who have applied for occupancy
of or have occupied housing financed, owned
or otherwise assisted by the Virginia Housing
Development Authority; (ii) concerning persons
participating in or persons on the waiting list for
federally funded rent - assistance programs; (iii)
filed with any local redevelopment and housing
authority created pursuant to § 36 -4 concerning
persons participating in or persons on the wait
ing list for housing assistance programs funded by
local governments or by any such authority; or (iv)
filed with any local redevelopment and housing
authority created pursuant to § 36 -4 or any other
local government agency concerning persons who
have applied for occupancy or who have occupied
affordable dwelling units established pursuant to
§ 15.2 -2304 or 15.2 -2305. However, access to one's
own information shall not be denied.
9. Records regarding the siting of hazardous waste
facilities, except as provided in § 10.1 -1441, if
disclosure of them would have a detrimental ef-
fect upon the negotiating position of a governing
body or on the establishment of the terms, condi-
tions and provisions of the siting agreement.
10. Records containing information on the site
specific location of rare, threatened, endangered
or otherwise imperiled plant and animal spe-
cies, natural communities, caves, and significant
historic and archaeological sites if, in the opinion
of the public body that has the responsibility for
such information, disclosure of the information
would jeopardize the continued existence or the
integrity of the resource. This exemption shall
not apply to requests from the owner of the land
upon which the resource is located.
11. Records, memoranda, working papers, graph-
ics, video or audio tapes, production models,
data and information of a proprietary nature
produced by or for or collected by or for the
Virginia Lottery relating to matters of a specific
lottery game design, development, production,
operation, ticket price, prize structure, manner of
selecting the winning ticket, manner of payment
of prizes to holders of winning tickets, frequency
of drawings or selections of winning tickets, odds
of winning, advertising, or marketing, where such
official records have not been publicly released,
published, copyrighted or patented. Whether re-
leased, published or copyrighted, all game - related
information shall be subject to public disclosure
under this chapter upon the first day of sales for
the specific lottery game to which it pertains.
12. Records of the Virginia Retirement System,
acting pursuant to § 51.1- 124.30, or of a local
retirement system, acting pursuant to § 51.1 -803,
or of the Rector and Visitors of the University of
Virginia, acting pursuant to § 23 -76.1, or of the
Virginia College Savings Plan, acting pursuant
to §23- 38.77, relating to the acquisition, holding
or disposition of a security or other ownership
36 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
interest in an entity, where such security or own-
ership interest is not traded on a governmentally
regulated securities exchange, to the extent that:
(i) such records contain confidential analyses
prepared for the Rector and Visitors of the Uni-
versity of Virginia, prepared by the retirement
system or the Virginia College Savings Plan, or
provided to the retirement system or the Virginia
College Savings Plan under a promise of confi-
dentiality, of the future value of such ownership
interest or the future financial performance of
the entity; and (ii) disclosure of such confidential
analyses would have an adverse effect on the
value of the investment to be acquired, held or
disposed of by the retirement system, the Rec-
tor and Visitors of the University of Virginia, or
the Virginia College Savings Plan. Nothing in
this subdivision shall be construed to prevent the
disclosure of records relating to the identity of
any investment held, the amount invested, or the
present value of such investment.
13. Names and addresses of subscribers to Virginia
Wildlife magazine, published by the Department
of Game and Inland Fisheries, provided the in-
dividual subscriber has requested in writing that
the Department not release such information.
14. Financial, medical, rehabilitative and other
personal information concerning applicants for
or recipients of loan funds submitted to or main-
tained by the Assistive Technology Loan Fund
Authority under Chapter 11 (§ 51.5 -53 et seq.) of
Title 51.5.
15. Records of the Virginia Commonwealth Uni-
versity Health System Authority pertaining to
any of the following: an individuals qualifica-
tions for or continued membership on its medi-
cal or teaching staffs; proprietary information
gathered by or in the possession of the Author-
ity from third parties pursuant to a promise of
confidentiality; contract cost estimates prepared
for confidential use in awarding contracts for
construction or the purchase of goods or ser-
vices; data, records or information of a propri-
etary nature produced or collected by or for the
Authority or members of its medical or teaching
staffs; financial statements not publicly available
that may be filed with the Authority from third
parties; the identity, accounts or account status
of any customer of the Authority; consulting or
other reports paid for by the Authority to assist the
Authority in connection with its strategic planning
and goals; the determination of marketing and op-
erational strategies where disclosure of such strate-
gies would be harmful to the competitive position
of the Authority; and data, records or information
of a proprietary nature produced or collected by
or for employees of the Authority, other than the
Authority>s financial or administrative records, in
the conduct of or as a result of study or research
on medical, scientific, technical or scholarly issues,
whether sponsored by the Authority alone or in
conjunction with a governmental body or a private
concern, when such data, records or information
have not been publicly released, published, copy-
righted or patented.
16. Records of the Department of Environmental
Quality, the State Water Control Board, State
Air Pollution Control Board or the Virginia
Waste Management Board relating to (i) active
federal environmental enforcement actions that
are considered confidential under federal law and
(ii) enforcement strategies, including proposed
sanctions for enforcement actions. Upon request,
such records shall be disclosed after a proposed
sanction resulting from the investigation has been
proposed to the director of the agency. This sub-
division shall not be construed to prohibit the dis-
closure of records related to inspection reports,
notices of violation, and documents detailing the
nature of any environmental contamination that
may have occurred or similar documents.
17. As it pertains to any person, records related to
the operation of toll facilities that identify an
individual, vehicle, or travel itinerary including,
but not limited to, vehicle identification data,
vehicle enforcement system information; video
or photographic images; Social Security or other
identification numbers appearing on driver>s
licenses; credit card or bank account data; home
addresses; phone numbers; or records of the date
or time of toll facility use.
18. Records of the Virginia Lottery pertaining to
(i) the social security number, tax identification
number, state sales tax number, home address
and telephone number, personal and lottery
banking account and transit numbers of a re-
tailer, and financial information regarding the
nonlottery operations of specific retail locations;
and (ii) individual lottery winners, except that
a winners name, hometown, and amount won
shall be disclosed.
19. Records of the Board for Branch Pilots relat-
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 37
ing to the chemical or drug testing of a person
regulated by the Board, where such person has
tested negative or has not been the subject of a
disciplinary action by the Board for a positive
test result.
20. Records, investigative notes, correspondence,
and information pertaining to the planning,
scheduling and performance of examinations of
holder records pursuant to the Uniform Disposi-
tion of Unclaimed Property Act (§ 55 -210.1 et
seq.) prepared by or for the State Treasurer, his
agents, employees or persons employed to per-
form an audit or examination of holder records.
21. Records of the Virginia Department of Emer-
gency Management or a local governing body
relating to citizen emergency response teams
established pursuant to an ordinance of a local
governing body, to the extent that such records re-
veal the name, address, including e -mail address,
telephone or pager numbers, or operating schedule
of an individual participant in the program.
22. Records of state or local park and recreation
departments and local and regional park authori-
ties to the extent such records contain informa-
tion identifying a person under the age of 18
years. However, nothing in this subdivision shall
operate to prohibit the disclosure of information
defined as directory information under regula-
tions implementing the Family Educational
Rights and Privacy Act, 20 U. S.C. § 1232g, un-
less the public body has undertaken the parental
notification and opt -out requirements provided
by such regulations. Access shall not be denied
to the parent, including a noncustodial parent,
or guardian of such person, unless the parentrs
parental rights have been terminated or a court
of competent jurisdiction has restricted or denied
such access. For records of such persons who are
emancipated, the right of access may be asserted
by the subject thereof. Any parent or emanci-
pated person who is the subject of the record may
waive, in writing, the protections afforded by this
subdivision. If the protections are so waived, the
public body shall open such records for inspec-
tion and copying.
23. Records submitted for inclusion in the Statewide
Alert Network administered by the Department
of Emergency Management, to the extent that
they reveal names, physical addresses, email
addresses, computer or internet protocol informa-
tion, telephone numbers, pager numbers, other
wireless or portable communications device in-
formation, or operating schedules of individuals
or agencies, where the release of such informa-
tion would compromise the security of the State-
wide Alert Network or individuals participating
in the Statewide Alert Network.
24. Records of the Judicial Inquiry and Review
Commission made confidential by § 17.1 -913.
25. Records of the Virginia Retirement System
acting pursuant to § 51.1 - 124.30, of a local retire-
ment system acting pursuant to § 51.1 -803 (here-
inafter collectively referred to as the retirement
system), or of the Virginia College Savings Plan,
acting pursuant to § 23 -38.77 relating to:
a. Internal deliberations of or decisions by the
retirement system or the Virginia College Savings
Plan on the pursuit of particular investment strate-
gies, or the selection or termination of investment
managers, prior to the execution of such invest-
ment strategies or the selection or termination of
such managers, to the extent that disclosure of
such records would have an adverse impact on the
financial interest of the retirement system or the
Virginia College Savings Plan; and
b. Trade secrets, as defined in the Uniform
Trade Secrets Act (§ 59.1 -336 et seq.), provided
by a private entity to the retirement system or
the Virginia College Savings Plan, to the extent
disclosure of such records would have an adverse
impact on the financial interest of the retirement
system or the Virginia College Savings Plan.
For the records specified in subdivision b to be
excluded from the provisions of this chapter, the
entity shall make a written request to the retire-
ment system or the Virginia College Savings Plan:
(1) Invoking such exclusion prior to or upon
submission of the data or other materials for which
protection from disclosure is sought;
(2) Identifying with specificity the data or other
materials for which protection is sought; and
(3) Stating the reasons why protection is necessary.
The retirement system or the Virginia College
Savings Plan shall determine whether the request-
ed exclusion from disclosure meets the require-
ments set forth in subdivision b.
Nothing in this subdivision shall be construed to
authorize the withholding of the identity or amount
of any investment held or the present value and
performance of all asset classes and subclasses.
26. Records of the Department of Corrections made
confidential by § 53.1 -233.
38 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
2 7. Records maintained by the Department of the
Treasury or participants in the Local Government
Investment Pool (§ 2.2 -4600 et seq.), to the extent
such records relate to information required to be
provided by such participants to the Department to
establish accounts in accordance with § 2.2 -4602.
28. Personal information, as defined in § 2.2 -3801,
contained in the Veterans Care Center Resident
Trust Funds concerning residents or patients of
the Department of Veterans Services Care Cen-
ters, except that access shall not be denied to the
person who is the subject of the record.
29. Records maintained in connection with fund-
raising activities by the Veterans Services Foun-
dation pursuant to § 2.2 -2716 to the extent that
such records reveal the address, electronic mail
address, facsimile or telephone number, social
security number or other identification number
appearing on a driver's license, or credit card or
bank account data of identifiable donors, except
that access shall not be denied to the person
who is the subject of the record. Nothing in this
subdivision, however, shall be construed to au-
thorize the withholding of records relating to the
amount, date, purpose, and terms of the pledge
or donation or the identity of the donor. The ex-
clusion provided by this subdivision shall not ap-
ply to protect from disclosure (i) the identities of
sponsors providing grants to or contracting with
the foundation for the performance of services
or other work or (ii) the terms and conditions of
such grants or contracts.
30. Names, physical addresses, telephone numbers,
and email addresses contained in correspondence
between an individual and a member of the
governing body, school board, or other public
body of the locality in which the individual is
a resident, unless the correspondence relates to
the transaction of public business. However, no
record that is otherwise open to inspection under
this chapter shall be deemed exempt by virtue of
the fact that it has been attached to or incorpo-
rated within any such correspondence.
31. Records of the Commonwealth>s Attorneys> Ser-
vices Council, to the extent such records are pre-
pared for and utilized by the Commonwealth>s
Attorneys> Services Council in the training of
state prosecutors or law- enforcement personnel,
where such records are not otherwise available to
the public and the release of such records would
reveal confidential strategies, methods or proce-
dures to be employed in law- enforcement activi-
ties, or materials created for the investigation and
prosecution of a criminal case.
32. Records provided to the Department of Avia-
tion by other entities of the Commonwealth in
connection with the operation of aircraft, where
the records would not be subject to disclosure by
the entity providing the records. The entity pro-
viding the records to the Department of Aviation
shall identify the specific portion of the records
to be protected and the applicable provision of
this chapter that exempts the record or portions
thereof from mandatory disclosure.
33. Records created or maintained by or on the be-
half of the judicial performance evaluation pro-
gram related to an evaluation of any individual
justice or judge made confidential by § 17.1 -100.
§ 2.2- 3705.8 Limitation on record exclusions
A. Neither any provision of this chapter nor any
provision of Chapter 38 (§ 2.2 -3800 et seq.) of this
title shall be construed as denying public access to (i)
contracts between a public body and its officers or em-
ployees, other than contracts settling public employee
employment disputes held confidential as personnel
records under § 2.2- 3705.1; (ii) records of the posi-
tion, job classification, official salary or rate of pay of,
and records of the allowances or reimbursements for
expenses paid to any officer, official or employee of a
public body; or (iii) the compensation or benefits paid
by any corporation organized by the Virginia Retire-
ment System or its officers or employees.
The provisions of this subsection, however, shall not
require public access to records of the official salaries
or rates of pay of public employees whose annual rate of
pay is $10,000 or less.
B. Nothing in this chapter shall be construed as
denying public access to the nonexempt portions of a
report of a consultant hired by or at the request of a
local public body or the mayor or chief executive or
administrative officer of such public body if (i) the con-
tents of such report have been distributed or disclosed
to members of the local public body or (ii) the local
public body has scheduled any action on a matter that
is the subject of the consultant's report.
§ 2.2 -3706 Disclosure of criminal records;
limitations
A. All public bodies engaged in criminal law -en-
forcement activities shall provide requested records in
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 39
accordance with this chapter as follows:
b. Reports submitted in confidence to (i) state
1. Records required to be released:
and local law- enforcement agencies, (ii) investiga-
a. Criminal incident information relating to
tors authorized pursuant to Chapter 3.2 (§ 2.2-
felony offenses, which shall include:
307 et seq.), and (iii) campus police departments
(1) A general description of the criminal
of public institutions of higher education estab-
activity reported;
lished pursuant to Chapter 17 (§ 23 -232 et seq.) of
(2) The date the alleged crime was
Title 23;
committed;
c. Records of local law- enforcement agen-
(3) The general location where the alleged
cies relating to neighborhood watch programs
crime was committed;
that include the names, addresses, and operating
(4) The identity of the investigating officer or
schedules of individual participants in the pro -
other point of contact; and
gram that are provided to such agencies under a
(5) A general description of any injuries
promise of anonymity;
suffered or property damaged or stolen.
d. All records of persons imprisoned in penal
A verbal response as agreed to by the
institutions in the Commonwealth provided such
requester and the public body is sufficient to
records relate to the imprisonment;
satisfy the requirements of subdivision a.
e. Records of law- enforcement agencies, to
Where the release of criminal incident
the extent that such records contain specific tacti-
information, however, is likely to jeopardize an
cal plans, the disclosure of which would jeop-
ongoing investigation or prosecution or the safety
ardize the safety or security of law- enforcement
of an individual, cause a suspect to flee or evade
personnel or the general public;
detection, or result in the destruction of evidence,
f All records of adult persons under (i) inves-
such information may be withheld until the
tigation or supervision by a local pretrial services
above - referenced damage is no longer likely to
agency in accordance with Article 5 (§ 19.2-
occur from release of the information. Nothing in
152.2 et seq.) of Chapter 9 of Title 19.2; (ii) inves-
subdivision a shall be construed to authorize the
tigation, probation supervision, or monitoring
withholding of those portions of such information
by a local community -based probation services
that are not likely to cause the above - referenced
agency in accordance with Article 9 (§ 9.1 -173 et
damage;
seq.) of Chapter 1 of Title 9.1; or (iii) investigation
b. Adult arrestee photographs taken during
or supervision by state probation and parole ser-
the initial intake following the arrest and as part
vices in accordance with Article 2 (§ 53.1 -141 et
of the routine booking procedure, except when
seq.) of Chapter 4 of Title 53.1;
necessary to avoid jeopardizing an investigation
g. Records of a law- enforcement agency to
in felony cases until such time as the release of
the extent that they disclose the telephone num-
the photograph will no longer jeopardize the
bers for cellular telephones, pagers, or compara-
investigation; and
ble portable communication devices provided to
c. Information relative to the identity of any in-
its personnel for use in the performance of their
dividual, other than a juvenile, who is arrested and
official duties;
charged, and the status of the charge or arrest;
h. Those portions of any records containing
2. Discretionary releases. The following records are
information related to undercover operations or
protective details that would reveal the staffing,
excluded from the provisions of this chapter, but
logistics, or tactical plans of such undercover
maybe disclosed by the custodian, in his discre-
operations or protective details. Nothing in this
tion except where such disclosure is prohibited
subdivision shall operate to allow the withhold -
by law:
ing of information concerning the overall costs or
a. Criminal investigative files, defined as
expenses associated with undercover operations
any documents and information, including
or protective details;
complaints, court orders, memoranda, notes,
i. Records of (i) background investigations of
diagrams, maps, photographs, correspondence,
applicants for law- enforcement agency employ -
reports, witness statements, and evidence relating
ment, (ii) administrative investigations relating to
to a criminal investigation or prosecution, other
allegations. of wrongdoing by employees. of a law -
than criminal incident information subject to
enforcement agency, and (iii) other administra-
release in accordance with subdivision 1 a;
40 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
tive investigations conducted by law- enforcement
agencies that are made confidential by law;
j. The identity of any victim, witness, or
undercover officer, or investigative techniques or
procedures. However, the identity of any victim
or witness shall be withheld if disclosure is pro-
hibited or restricted under § 19.2 -11.2; and
k. Records of the Sex Offender and Crimes
Against Minors Registry maintained by the
Department of State Police pursuant to Chapter
9 (§ 9.1 -900 et seq.) of Title 9.1, including infor-
mation obtained from state, local, and regional
officials, except to the extent that information is
required to be posted on the Internet pursuant to
§ 9.1 -913; and
3. Prohibited releases. The identity of any indi-
vidual providing information about a crime or
criminal activity under a promise of anonymity
shall not be disclosed.
B. Noncriminal records. Records (i) required
to be maintained by law- enforcement agencies
pursuant to § 15.2 -1722 or (ii) maintained by
other public bodies engaged in criminal law -
enforcement activities shall be subject to the pro-
visions of this chapter except that those portions
of noncriminal incident or other noncriminal
investigative reports or materials that contain
identifying information of a personal, medical,
or financial nature may be withheld where the
release of such information would jeopardize
the safety or privacy of any person. Access to
personnel records of persons employed by a law -
enforcement agency shall be governed by the
provisions of subdivision A 2 i of this section and
subdivision 1 of § 2.2- 3705.1, as applicable.
C. Records of any call for service or other
communication to an emergency 911 system or
communicated with any other equivalent report-
ing system shall be subject to the provisions of
this chapter.
D. Conflict resolution. In the event of conflict
between this section as it relates to requests made
under this section and other provisions of law,
this section shall control.
§ 2.2 -3707 Meetings to be public; notice
of meetings; recordings; minutes
A. All meetings of public bodies shall be open, ex-
cept as provided in §§ 2.2- 3707.01 and 2.2 -3711.
B. No meeting shall be conducted through tel-
ephonic, video, electronic or other communication
means where the members are not physically assembled
to discuss or transact public business, except as provid-
ed in § 2.2 -3708, 2.2- 3708.1 or as may be specifically
provided in Title 54.1 for the summary suspension of
professional licenses.
C. Every public body shall give notice of the date,
time, and location of its meetings by placing the notice
in a prominent public location at which notices are reg-
ularly posted and in the office of the clerk of the public
body, or in the case of a public body that has no clerk,
in the office of the chief administrator. All state public
bodies subject to the provisions of this chapter shall
also post notice of their meetings on their websites and
on the electronic calendar maintained by the Virginia
Information Technologies Agency commonly known as
the Commonwealth Calendar. Publication of meeting
notices by electronic means by other public bodies shall
be encouraged. The notice shall be posted at least three
working days prior to the meeting. Notices for meet-
ings of state public bodies on which there is at least one
member appointed by the Governor shall state whether
or not public comment will be received at the meeting
and, if so, the approximate point during the meeting
when public comment will be received.
D. Notice, reasonable under the circumstance, of
special or emergency meetings shall be given contem-
poraneously with the notice provided members of the
public body conducting the meeting.
E. Any person may annually file a written request
for notification with a public body. The request shall in-
clude the requester>s name, address, zip code, daytime
telephone number, electronic mail address, if avail-
able, and organization, if any. The public body receiv-
ing such request shall provide notice of all meetings
directly to each such person. Without objection by the
person, the public body may provide electronic notice
of all meetings in response to such requests.
F. At least one copy of all agenda packets and, un-
less exempt, all materials furnished to members of a
public body for a meeting shall be made available for
public inspection at the same time such documents are
furnished to the members of the public body.
G. Nothing in this chapter shall be construed to
prohibit the gathering or attendance of two or more
members of a public body (i) at any place or function
where no part of the purpose of such gathering or at-
tendance is the discussion or transaction of any public
business, and such gathering or attendance was not
called or prearranged with any purpose of discussing
or transacting any business of the public body or (ii) at
a public forum, candidate appearance, or debate, the
2014 -2015 Virginia Freedom of Information Act I Conflict of ' Interests Act I Virginia Public Records Act 41
purpose of which is to inform the electorate and not to
transact public business or to hold discussions relating
to the transaction of public business, even though the
performance of the members individually or collective-
ly in the conduct of public business may be a topic of
discussion or debate at such public meeting. The notice
provisions of this chapter shall not apply to informal
meetings or gatherings of the members of the General
Assembly.
H. Any person may photograph, film, record or
otherwise reproduce any portion of a meeting required
to be open. The public body conducting the meeting
may adopt rules governing the placement and use of
equipment necessary for broadcasting, photographing,
filming or recording a meeting to prevent interference
with the proceedings, but shall not prohibit or other-
wise prevent any person from photographing, filming,
recording, or otherwise reproducing any portion of
a meeting required to be open. No public body shall
conduct a meeting required to be open in any building
or facility where such recording devices are prohibited.
I. Minutes shall be recorded at all open meetings.
However, minutes shall not be required to be taken at
deliberations of (i) standing and other committees of the
General Assembly; (ii) legislative interim study com-
missions and committees, including the Virginia Code
Commission; (iii) study committees or commissions ap-
pointed by the Governor; or (iv) study commissions or
study committees, or any other committees or subcom-
mittees appointed by the governing bodies or school
boards of counties, cities and towns, except where the
membership of any such commission, committee or
subcommittee includes a majority of the governing
body of the county, city or town or school board.
Minutes, including draft minutes, and all other
records of open meetings, including audio or audiovi-
sual records shall be deemed public records and subject
to the provisions of this chapter.
Minutes shall be in writing and shall include (i)
the date, time, and location of the meeting; (ii) the
members of public body recorded as present and
absent; and (iii) a summary of the discussion on matters
proposed, deliberated or decided, and a record of any
votes taken. In addition, for electronic communication
meetings conducted in accordance with § 2.2 -3708,
minutes of state public bodies shall include (a) the iden-
tity of the members of the public body at each remote
location identified in the notice who participated in the
meeting through electronic communications means,
(b) the identity of the members of the public body who
were physically assembled at the primary or central
meeting location, and (c) the identity of the members of
the public body who were not present at the locations
identified in clauses (a) and (b), but who monitored such
meeting through electronic communications means.
§ 2.2- 3707.01 Meetings of the
General Assembly
A. Except as provided in subsection B, public access
to any meeting of the General Assembly or a portion
thereof shall be governed by rules established by the
Joint Rules Committee and approved by a majority
vote of each house at the next regular session of the
General Assembly. At least 60 days before the adoption
of such rules, the Joint Rules Committee shall (i) hold
regional public hearings on such proposed rules and (ii)
provide a copy of such proposed rules to the Virginia
Freedom of Information Advisory Council.
B. Floor sessions of either house of the General
Assembly; meetings, including work sessions, of any
standing or interim study committee of the Gen-
eral Assembly; meetings, including work sessions, of
any subcommittee of such standing or interim study
committee; and joint committees of conference of the
General Assembly; or a quorum of any such commit-
tees or subcommittees, shall be open and governed by
this chapter.
C. Meetings of the respective political party caucus-
es of either house of the General Assembly, including
meetings conducted by telephonic or other electronic
communication means, without regard to (i) whether
the General Assembly is in or out of regular or spe-
cial session or (ii) whether such caucuses invite staff or
guests to participate in their deliberations, shall not be
deemed meetings for the purposes of this chapter.
D. No regular, special, or reconvened session of the
General Assembly held pursuant to Article IV, Section
6 of the Constitution of Virginia shall be conducted
using electronic communication means pursuant § 2.2-
3708.
§ 2.2- 3707.1 Posting of minutes
for state boards and commissions.
All boards, commissions, councils, and other public
bodies created in the executive branch of state govern-
ment and subject to the provisions of this chapter shall
post minutes of their meetings on such body's website,
if any, and on the electronic calendar maintained by
the Virginia Information Technologies Agency com-
monly known as the Commonwealth Calendar. Draft
minutes of meetings shall be posted as soon as possible
but no later than ten working days after the conclusion
42 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
of the meeting. Final approved meeting minutes shall
be posted within three working days of final approval
of the minutes.
§ 2.2 -3708 Electronic communication
meetings; applicability; physical quorum
required; exceptions; notice; report
A. Except as expressly provided in subsection G of
this section or § 2.2- 3708.1, no local governing body,
school board, or any authority, board, bureau, com-
mission, district or agency of local government, any
committee thereof, or any entity created by a local
governing body, school board, or any local authority,
board, or commission shall conduct a meeting wherein
the public business is discussed or transacted through
telephonic, video, electronic or other communication
means where the members are not physically as-
sembled. Nothing in this section shall be construed to
prohibit the use of interactive audio or video means to
expand public participation.
B. Except as provided in subsection G or H of this
section or subsection D of § 2.2- 3707.01, state public
bodies may conduct any meeting wherein the public
business is discussed or transacted through electronic
communication means, provided (i) a quorum of the
public body is physically assembled at one primary or
central meeting location, (ii) notice of the meeting has
been given in accordance with subsection C, and (iii) the
remote locations, from which additional members of the
public body participate through electronic communica-
tion means, are open to the public. All persons attending
the meeting at any of the meeting locations shall be af-
forded the same opportunity to address the public body
as persons attending the primary or central location.
If an authorized public body holds an electronic
meeting pursuant to this section, it shall also hold at
least one meeting annually where members in atten-
dance at the meeting are physically assembled at one
location and where no members participate by elec-
tronic communication means.
C. Notice of any meetings held pursuant to this
section shall be provided at least three working days
in advance of the date scheduled for the meeting. The
notice shall include the date, time, place, and purpose
for the meeting; shall identify the locations for the
meeting; and shall include a telephone number that
may be used at remote locations to notify the primary
or central meeting location of any interruption in the
telephonic or video broadcast of the meeting to the
remote locations. Any interruption in the telephonic or
video broadcast of the meeting shall result in the sus-
pension of action at the meeting until repairs are made
and public access restored.
D. Agenda packets and, unless exempt, all materi-
als that will be distributed to members of the public
body and that have been made available to the staff of
the public body in sufficient time for duplication and
forwarding to all locations where public access will be
provided shall be made available to the public at the
time of the meeting. Minutes of all meetings held by
electronic communication means shall be recorded as
required by § 2.2 -3707. Votes taken during any meeting
conducted through electronic communication means
shall be recorded by name in roll -call fashion and
included in the minutes.
E. Three working days' notice shall not be required
for meetings authorized under this section held in ac-
cordance with subsection G or that are continued to
address an emergency or to conclude the agenda of the
meeting for which proper notice has been given, when
the date, time, place, and purpose of the continued
meeting are set during the meeting prior to adjourn-
ment. Public bodies conducting emergency meetings
through electronic communication means shall comply
with the provisions of subsection D requiring minutes
of the meeting. The nature of the emergency shall be
stated in the minutes.
F. Any authorized public body that meets by
electronic communication means shall make a writ-
ten report of the following to the Virginia Freedom of
Information Advisory Council and the Joint Commis-
sion on Technology and Science by December 15 of
each year:
1. The total number of electronic communication
meetings held that year;
2. The dates and purposes of the meetings;
3. A copy of the agenda for the meeting;
4. The number of sites for each meeting;
5. The types of electronic communication means by
which the meetings were held;
6. The number of participants, including members
of the public, at each meeting location;
7. The identity of members of public body
recorded as absent and those recorded as present
at each meeting location;
8. A summary of any public comment received
about the electronic communication meetings;
and
9. A written summary of the public body's experi-
ence using electronic communication meetings,
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 43
including its logistical and technical experience.
In addition, any authorized public body
shall make available to the public at any meet-
ing conducted in accordance with this section a
public comment form prepared by the Virginia
Freedom of Information Advisory Council in ac-
cordance with § 30 -179.
G. Any public body may meet by electronic commu-
nication means without a quorum of the public body
physically assembled at one location when the Gover-
nor has declared a state of emergency in accordance
with § 44- 146.17, provided (i) the catastrophic nature
of the declared emergency makes it impracticable or
unsafe to assemble a quorum in a single location and
(ii) the purpose of the meeting is to address the emer-
gency. The public body convening a meeting in accor-
dance with this subsection shall (a) give public notice
using the best available method given the nature of the
emergency, which notice shall be given contemporane-
ously with the notice provided members of the public
body conducting the meeting; (b) make arrangements
for public access to such meeting; and (c) otherwise
comply with the provisions of this section. The nature
of the emergency, the fact that the meeting was held
by electronic communication means, and the type of
electronic communication means by which the meeting
was held shall be stated in the minutes.
H. [Expired].
§ 2.2- 3708.1 Participation in meetings in
event of emergency or personal matter; certain
disabilities; distance from meeting location for
certain public bodies
A. A member of a public body may participate in a
meeting governed by this chapter through electronic
communication means from a remote location that is
not open to the public only as follows and subject to the
requirements of subsection B:
1. If, on or before the day of a meeting, a member of
the public body holding the meeting notifies the
chair of the public body that such member is un-
able to attend the meeting due to an emergency
or personal matter and identifies with specificity
the nature of the emergency or personal mat-
ter, and the public body holding the meeting
records in its minutes the specific nature of the
emergency or personal matter and the remote
location from which the member participated. If
a member>s participation from a remote location
is disapproved because such participation would
violate the policy adopted pursuant to subsec-
tion B, such disapproval shall be recorded in the
minutes with specificity.
Such participation by the member shall be limited
each calendar year to two meetings or 25 percent
of the meetings of the public body, whichever is
fewer;
2. If a member of a public body notifies the chair of
the public body that such member is unable to
attend a meeting due to a temporary or perma-
nent disability or other medical condition that
prevents the member>s physical attendance and
the public body records this fact and the remote
location from which the member participated in
its minutes; or
3. If, on the day of a meeting, a member of a re-
gional public body notifies the chair of the public
body that such member>s principal residence is
more than 60 miles from the meeting location
identified in the required notice for such meet-
ing and the public body holding the meeting
records in its minutes the remote location from
which the member participated. If a member>s
participation from a remote location is disap-
proved because such participation would violate
the policy adopted pursuant to subsection B, such
disapproval shall be recorded in the minutes with
specificity.
B. Participation by a member of a public body as
authorized under subsection A shall be only under the
following conditions:
1. The public body has adopted a written policy
allowing for and governing participation of its
members by electronic communication means,
including an approval process for such participa-
tion, subject to the express limitations imposed
by this section. Once adopted, the policy shall be
applied strictly and uniformly, without exception,
to the entire membership and without regard to
the identity of the member requesting remote
participation or the matters that will be consid-
ered or voted on at the meeting;
2. A quorum of the public body is physically assem-
bled at the primary or central meeting location;
and
The public body makes arrangements for the voice
of the remote participant to be heard by all per-
sons at the primary or central meeting location.
44 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
§ 2.2 -3710 Transaction of public business other
than by votes at meetings prohibited
A. Unless otherwise specifically provided by law,
no vote of any kind of the membership, or any part
thereof, of any public body shall be taken to authorize
the transaction of any public business, other than a vote
taken at a meeting conducted in accordance with the
provisions of this chapter. No public body shall vote by
secret or written ballot, and unless expressly provided
by this chapter, no public body shall vote by telephone
or other electronic communication means.
B. Notwithstanding the foregoing, nothing con-
tained herein shall be construed to prohibit (i) sepa-
rately contacting the membership, or any part thereof,
of any public body for the purpose of ascertaining a
member>s position with respect to the transaction of
public business, whether such contact is done in person,
by telephone or by electronic communication, provided
the contact is done on a basis that does not constitute a
meeting as defined in this chapter or (ii) the House of
Delegates or the Senate of Virginia from adopting rules
relating to the casting of votes by members of standing
committees. Nothing in this subsection shall operate to
exclude any public record from the provisions of this
chapter.
§ 2.2 -3711 Closed meetings authorized
for certain limited purposes
A. Public bodies may hold closed meetings only for
the following purposes:
1. Discussion, consideration, or interviews of pro-
spective candidates for employment; assignment,
appointment, promotion, performance, demo-
tion, salaries, disciplining, or resignation of spe-
cific public officers, appointees, or employees of
any public body; and evaluation of performance
of departments or schools of public institutions
of higher education where such evaluation will
necessarily involve discussion of the performance
of specific individuals. Any teacher shall be
permitted to be present during a closed meeting
in which there is a discussion or consideration of
a disciplinary matter that involves the teacher
and some student and the student involved in the
matter is present, provided the teacher makes a
written request to be present to the presiding of-
ficer of the appropriate board.
2. Discussion or consideration of admission or disci-
plinary matters or any other matters that would
involve the disclosure of information contained in
a scholastic record concerning any student of any
Virginia public institution of higher education
or any state school system. However, any such
student, legal counsel and, if the student is a mi-
nor, the student>s parents or legal guardians shall
be permitted to be present during the taking of
testimony or presentation of evidence at a closed
meeting, if such student, parents, or guardians so
request in writing and such request is submitted
to the presiding officer of the appropriate board.
3. Discussion or consideration of the acquisition
of real property for a public purpose, or of the
disposition of publicly held real property, where
discussion in an open meeting would adversely
affect the bargaining position or negotiating
strategy of the public body.
4. The protection of the privacy of individuals in
personal matters not related to public business.
5. Discussion concerning a prospective business or
industry or the expansion of an existing business
or industry where no previous announcement has
been made of the business> or industry>s interest
in locating or expanding its facilities in the
community.
6. Discussion or consideration of the investment of
public funds where competition or bargaining
is involved, where, if made public initially, the
financial interest of the governmental unit would
be adversely affected.
7. Consultation with legal counsel and briefings by
staff members or consultants pertaining to actual
or probable litigation, where such consultation
or briefing in open meeting would adversely
affect the negotiating or litigating posture of the
public body; and consultation with legal counsel
employed or retained by a public body regard-
ing specific legal matters requiring the provision
of legal advice by such counsel. For the purposes
of this subdivision, "probable litigation" means
litigation that has been specifically threatened
or on which the public body or its legal counsel
has a reasonable basis to believe will be com-
menced by or against a known party. Nothing in
this subdivision shall be construed to permit the
closure of a meeting merely because an attorney
representing the public body is in attendance or
is consulted on a matter.
In the case of boards of visitors of public institu-
tions of higher education, discussion or consid-
eration of matters relating to gifts, bequests and
fund - raising activities, and grants and contracts
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 45
for services or work to be performed by such
institution. However, the terms and conditions
of any such gifts, bequests, grants, and contracts
made by a foreign government, a foreign legal
entity, or a foreign person and accepted by a
public institution of higher education in Virginia
shall be subject to public disclosure upon writ-
ten request to the appropriate board of visitors.
For the purpose of this subdivision, (i) "foreign
government" means any government other than
the United States government or the govern-
ment of a state or a political subdivision thereof;
(ii) "foreign legal entity" means any legal entity
created under the laws of the United States or of
any state thereof if a majority of the ownership of
the stock of such legal entity is owned by foreign
governments or foreign persons or if a majority of
the membership of any such entity is composed
of foreign persons or foreign legal entities, or any
legal entity created under the laws of a foreign
government; and (iii) "foreign person" means any
individual who is not a citizen or national of the
United States or a trust territory or protectorate
thereof.
9. In the case of the boards of trustees of the Virgin-
ia Museum of Fine Arts, the Virginia Museum of
Natural History, the Jamestown Yorktown Foun-
dation, and The Science Museum of Virginia,
discussion or consideration of matters relating to
specific gifts, bequests, and grants.
10. Discussion or consideration of honorary degrees
or special awards.
11. Discussion or consideration of tests, examina-
tions, or other records excluded from this chapter
pursuant to subdivision 4 of § 2.2- 3705.1.
12. Discussion, consideration, or review by the ap-
propriate House or Senate committees of possible
disciplinary action against a member arising out
of the possible inadequacy of the disclosure state-
ment filed by the member, provided the member
may request in writing that the committee meet-
ing not be conducted in a closed meeting.
13. Discussion of strategy with respect to the nego-
tiation of a hazardous waste siting agreement or
to consider the terms, conditions, and provisions
of a hazardous waste siting agreement if the gov-
erning body in open meeting finds that an open
meeting will have an adverse effect upon the
negotiating position of the governing body or the
establishment of the terms, conditions and provi-
sions of siting agreement, or both. All discus-
sions with the applicant or its representatives may
be conducted in a closed meeting.
14. Discussion by the Governor and any economic
advisory board reviewing forecasts of economic
activity and estimating general and nongeneral
fund revenues.
15. Discussion or consideration of medical and
mental health records excluded from this chapter
pursuant to subdivision 1 of § 2.2- 3705.5.
16. Deliberations of the Virginia Lottery Board in
a licensing appeal action conducted pursuant
to subsection D of § 58.1 -4007 regarding the
denial or revocation of a license of a lottery sales
agent; and discussion, consideration or review
of Virginia Lottery matters related to propri-
etary lottery game information and studies or
investigations exempted from disclosure under
subdivision 6 of §2.2- 3705.3 and subdivision 11 of
§ 2.2- 3705.7.
17. Those portions of meetings by local government
crime commissions where the identity of, or in-
formation tending to identify, individuals provid-
ing information about crimes or criminal activi-
ties under a promise of anonymity is discussed or
disclosed.
18. Those portions of meetings in which the Board
of Corrections discusses or discloses the identity
of, or information tending to identify, any pris-
oner who (i) provides information about crimes
or criminal activities, (ii) renders assistance in
preventing the escape of another prisoner or in
the apprehension of an escaped prisoner, or (iii)
voluntarily or at the instance of a prison official
renders other extraordinary services, the disclo-
sure of which is likely to jeopardize the prisoner's
life or safety.
19. Discussion of plans to protect public safety as it
relates to terrorist activity and briefings by staff
members, legal counsel, or law- enforcement or
emergency service officials concerning actions
taken to respond to such activity or a related
threat to public safety; or discussion of reports or
plans related to the security of any governmental
facility, building or structure, or the safety of per-
sons using such facility, building or structure.
20. Discussion by the Board of the Virginia Retire-
ment System, acting pursuant to § 51.1- 124.30,
or of any local retirement system, acting pursu-
ant to § 51.1 -803, or of the Rector and Visitors
of the University of Virginia, acting pursuant to
46 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
§ 23 -76.1, or by the Board of the Virginia Col-
lege Savings Plan, acting pursuant to § 23- 38.80,
regarding the acquisition, holding or disposition
of a security or other ownership interest in an
entity, where such security or ownership interest
is not traded on a governmentally regulated secu-
rities exchange, to the extent that such discussion
(i) concerns confidential analyses prepared for the
Rector and Visitors of the University of Virginia,
prepared by the retirement system or by the
Virginia College Savings Plan or provided to the
retirement system or the Virginia College Sav-
ings Plan under a promise of confidentiality, of
the future value of such ownership interest or the
future financial performance of the entity, and (ii)
would have an adverse effect on the value of the
investment to be acquired, held or disposed of
by the retirement system, the Rector and Visi-
tors of the University of Virginia, or the Virginia
College Savings Plan. Nothing in this subdivision
shall be construed to prevent the disclosure of
information relating to the identity of any invest-
ment held, the amount invested or the present
value of such investment.
21. Those portions of meetings in which individual
child death cases are discussed by the State Child
Fatality Review team established pursuant to
§ 32.1- 283.1, and those portions of meetings in
which individual child death cases are discussed
by a regional or local child fatality review team
established pursuant to § 32.1 - 283.2, and those
portions of meetings in which individual death
cases are discussed by family violence fatality re-
view teams established pursuant to § 32.1- 283.3.
22. Those portions of meetings of the University
of Virginia Board of Visitors or the Eastern
Virginia Medical School Board of Visitors, as
the case may be, and those portions of meetings
of any persons to whom management respon-
sibilities for the University of Virginia Medical
Center or Eastern Virginia Medical School, as
the case may be, have been delegated, in which
there is discussed proprietary, business - related
information pertaining to the operations of the
University of Virginia Medical Center or Eastern
Virginia Medical School, as the case may be,
including business development or marketing
strategies and activities with existing or future
joint venturers, partners, or other parties with
whom the University of Virginia Medical Center
or Eastern Virginia Medical School, as the case
may be, has formed, or forms, any arrangement
for the delivery of health care, if disclosure of
such information would adversely affect the com-
petitive position of the Medical Center or Eastern
Virginia Medical School, as the case may be.
23. In the case of the Virginia Commonwealth Uni-
versity Health System Authority, discussion or
consideration of any of the following: the acquisi-
tion or disposition of real or personal property
where disclosure would adversely affect the
bargaining position or negotiating strategy of the
Authority; operational plans that could affect the
value of such property, real or personal, owned
or desirable for ownership by the Authority; mat-
ters relating to gifts, bequests and fund - raising
activities; grants and contracts for services or
work to be performed by the Authority; market-
ing or operational strategies where disclosure of
such strategies would adversely affect the com-
petitive position of the Authority; members of its
medical and teaching staffs and qualifications
for appointments thereto; and qualifications or
evaluations of other employees.
24. Those portions of the meetings of the Health
Practitioners' Monitoring Program Committee
within the Department of Health Professions to
the extent such discussions identify any practi-
tioner who may be, or who actually is, impaired
pursuant to Chapter 25.1 (§ 54.1 -2515 et seq.) of
Title 54.1.
25. Meetings or portions of meetings of the Board
of the Virginia College Savings Plan wherein
personal information, as defined in § 2.2 -3801,
which has been provided to the Board or its
employees by or on behalf of individuals who
have requested information about, applied for, or
entered into prepaid tuition contracts or savings
trust account agreements pursuant to Chapter
4.9 (§ 23 -38.75 et seq.) of Title 23 is discussed.
26. Discussion or consideration, by the Wireless
Carrier E -911 Cost Recovery Subcommittee cre-
ated pursuant to § 56- 484.15, of trade secrets, as
defined in the Uniform Trade Secrets Act (§ 59.1-
336 et seq.), submitted by CMRS providers as
defined in § 56- 484.12, related to the provision of
wireless E -911 service.
27. Those portions of disciplinary proceedings by
any regulatory board within the Department
of Professional and Occupational Regulation,
Department of Health Professions, or the Board
of Accountancy conducted pursuant to § 2.2-
4019 or 2.2 -4020 during which the board delib-
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 47
erates to reach a decision or meetings of health
regulatory boards or conference committees of
such boards to consider settlement proposals in
pending disciplinary actions or modifications to
previously issued board orders as requested by
either of the parties.
28. Discussion or consideration of records excluded
from this chapter pursuant to subdivision 11 of
§ 2.2- 3705.6 by a responsible public entity or an
affected local jurisdiction, as those terms are de-
fined in § 56 -557, or any independent review panel
appointed to review information and advise the
responsible public entity concerning such records.
29. Discussion of the award of a public contract
involving the expenditure of public funds, includ-
ing interviews of bidders or offerors, and discus-
sion of terms or scope of such contract, where
discussion in an open session would adversely
affect the bargaining position or negotiating
strategy of the public body.
30. Discussion or consideration of grant or loan
application records excluded from this chapter
pursuant to subdivision 17 of § 2.2- 3705.6 by (i)
the Commonwealth Health Research Board or
(ii) the Innovation and Entrepreneurship Invest-
ment Authority or the Research and Technol-
ogy Investment Advisory Committee appointed
to advise the Innovation and Entrepreneurship
Investment Authority.
31. Discussion or consideration by the Commitment
Review Committee of records excluded from
this chapter pursuant to subdivision 9 of § 2.2-
3705.2 relating to individuals subject to commit-
ment as sexually violent predators under Chapter
9 (§ 37.2 -900 et seq.) of Title 37.2.
32. [Expired.]
33. Discussion or consideration of confidential
proprietary records and trade secrets excluded
from this chapter pursuant to subdivision 18 of
§ 2.2- 3705.6.
34. Discussion or consideration by a local authority
created in accordance with the Virginia Wireless
Service Authorities Act (§ 15.2 - 5431.1 et seq.) of
confidential proprietary records and trade secrets
excluded from this chapter pursuant to subdivi-
sion 19 of § 2.2- 3705.6.
35. Discussion or consideration by the State Board
of Elections or local electoral boards of voting
security matters made confidential pursuant to
§ 24.2- 625.1.
36. Discussion or consideration by the Forensic Sci-
ence Board or the Scientific Advisory Committee
created pursuant to Article 2 (§ 9.1 -1109 et seq.)
of Chapter 11 of Title 9.1 of records excluded
from this chapter pursuant to subdivision A 2 a
of § 2.2 -3706.
37. Discussion or consideration by the Brown
v. Board of Education Scholarship Program
Awards Committee of records or confidential
matters excluded from this chapter pursuant to
subdivision 3 of § 2.2- 3705.4, and meetings of
the Committee to deliberate concerning the an-
nual maximum scholarship award, review and
consider scholarship applications and requests for
scholarship award renewal, and cancel, rescind,
or recover scholarship awards.
38. Discussion or consideration by the Virginia Port
Authority of records excluded from this chapter
pursuant to subdivision 1 of § 2.2- 3705.6.
39. Discussion or consideration by the Board of
Trustees of the Virginia Retirement System
acting pursuant to § 51.1 - 124.30, by the Invest-
ment Advisory Committee appointed pursuant
to § 51.1- 124.26, by any local retirement system,
acting pursuant to § 51.1 -803, by the Board of
the Virginia College Savings Plan acting pursu-
ant to § 23- 38.80, or by the Virginia College
Savings Plan's Investment Advisory Committee
appointed pursuant to § 23- 38.79:1 of records
excluded from this chapter pursuant to subdivi-
sion 25 of § 2.2- 3705.7.
40. Discussion or consideration of records excluded
from this chapter pursuant to subdivision 3 of
§2.2- 3705.6.
41. Discussion or consideration by the Board of
Education of records relating to the denial,
suspension, or revocation of teacher licenses ex-
cluded from this chapter pursuant to subdivision
12 of § 2.2- 3705.3.
42. Those portions of meetings of the Virginia
Military Advisory Council or any commission
created by executive order for the purpose of
studying and making recommendations regard-
ing preventing closure or realignment of federal
military and national security installations and
facilities located in Virginia and relocation of
such facilities to Virginia, or a local or regional
military affairs organization appointed by a local
governing body, during which there is discussion
of records excluded from this chapter pursuant to
subdivision 12 of § 2.2- 3705.2.
48 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
43. Discussion or consideration by the Board of
Trustees of the Veterans Services Foundation of
records excluded from this chapter pursuant to
subdivision 29 of § 2.2- 3705.7.
44. Discussion or consideration by the Virginia
Tobacco Indemnification and Community
Revitalization Commission of records excluded
from this chapter pursuant to subdivision 23 of
§2.2- 3705.6.
45. Discussion or consideration by the board of di-
rectors of the Commercial Space Flight Authori-
ty of records excluded from this chapter pursuant
to subdivision 24 of § 2.2- 3705.6.
B. No resolution, ordinance, rule, contract, regula-
tion or motion adopted, passed or agreed to in a closed
meeting shall become effective unless the public body,
following the meeting, reconvenes in open meeting
and takes a vote of the membership on such resolution,
ordinance, rule, contract, regulation, or motion that
shall have its substance reasonably identified in the
open meeting.
C. Public officers improperly selected due to the
failure of the public body to comply with the other
provisions of this section shall be de facto officers and,
as such, their official actions are valid until they obtain
notice of the legal defect in their election.
D. Nothing in this section shall be construed to
prevent the holding of conferences between two or
more public bodies, or their representatives, but these
conferences shall be subject to the same procedures for
holding closed meetings as are applicable to any other
public body.
E. This section shall not be construed to (i) require
the disclosure of any contract between the Department
of Health Professions and an impaired practitioner
entered into pursuant to Chapter 25.1 (§ 54.1 -2515 et seq.)
of Title 54.1 or (ii) require the board of directors of any
authority created pursuant to the Industrial Development
and Revenue Bond Act (§ 15.2 -4900 et seq.), or any public
body empowered to issue industrial revenue bonds by
general or special law, to identify a business or industry to
which subdivision A 5 applies. However, such business or
industry shall be identified as a matter of public record at
least 30 days prior to the actual date of the board's autho-
rization of the sale or issuance of such bonds.
§ 2.2 -3712 Closed meetings procedures;
certification of proceedings
A. No closed meeting shall be held unless the public
body proposing to convene such meeting has taken
an affirmative recorded vote in an open meeting ap-
proving a motion that (i) identifies the subject matter,
(ii) states the purpose of the meeting and (iii) makes
specific reference to the applicable exemption from
open meeting requirements provided in § 2.2 -3707 or
subsection A of §2.2 -3711. The matters contained in
such motion shall be set forth in detail in the minutes
of the open meeting. A general reference to the provi-
sions of this chapter, the authorized exemptions from
open meeting requirements, or the subject matter of
the closed meeting shall not be sufficient to satisfy the
requirements for holding a closed meeting.
B. The notice provisions of this chapter shall not ap-
ply to closed meetings of any public body held solely for
the purpose of interviewing candidates for the position
of chief administrative officer. Prior to any such closed
meeting for the purpose of interviewing candidates,
the public body shall announce in an open meeting
that such closed meeting shall be held at a disclosed or
undisclosed location within 15 days thereafter.
C. The public body holding a closed meeting shall
restrict its discussion during the closed meeting only to
those matters specifically exempted from the provisions
of this chapter and identified in the motion required by
subsection A.
D. At the conclusion of any closed meeting, the
public body holding such meeting shall immediately
reconvene in an open meeting and shall take a roll call
or other recorded vote to be included in the minutes of
that body, certifying that to the best of each member's
knowledge (i) only public business matters lawfully
exempted from open meeting requirements under this
chapter and (ii) only such public business matters as
were identified in the motion by which the closed meet-
ing was convened were heard, discussed or considered in
the meeting by the public body. Any member of the pub-
lic body who believes that there was a departure from
the requirements of clauses (i) and (ii), shall so state prior
to the vote, indicating the substance of the departure
that, in his judgment, has taken place. The statement
shall be recorded in the minutes of the public body.
E. Failure of the certification required by subsection
D to receive the affirmative vote of a majority of the
members of the public body present during a meeting
shall not affect the validity or confidentiality of such
meeting with respect to matters considered therein in
compliance with the provisions of this chapter. The
recorded vote and any statement made in connection
therewith, shall upon proper authentication, constitute
evidence in any proceeding brought to enforce the
provisions of this chapter.
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 49
F. A public body may permit nonmembers to attend
a closed meeting if such persons are deemed necessary or
if their presence will reasonably aid the public body in its
consideration of a topic that is a subject of the meeting.
G. A member of a public body shall be permitted
to attend a closed meeting held by any committee or
subcommittee of that public body, or a closed meeting
of any entity, however designated, created to perform
the delegated functions of or to advise that public body.
Such member shall in all cases be permitted to observe
the closed meeting of the committee, subcommittee or
entity. In addition to the requirements of § 2.2 -3707, the
minutes of the committee or other entity shall include
the identity of the member of the parent public body
who attended the closed meeting.
H. Except as specifically authorized by law, in no
event may any public body take action on matters
discussed in any closed meeting, except at an open
meeting for which notice was given as required by
§ 2.2 -3707.
I. Minutes may be taken during closed meetings of
a public body, but shall not be required. Such minutes
shall not be subject to mandatory public disclosure.
§ 2.2 -3713 Proceedings
for enforcement of chapter
A. Any person, including the attorney for the Com-
monwealth acting in his official or individual capacity,
denied the rights and privileges conferred by this chap-
ter may proceed to enforce such rights and privileges by
filing a petition for mandamus or injunction, supported
by an affidavit showing good cause. Such petition may
be brought in the name of the person notwithstand-
ing that a request for public records was made by the
person >s attorney in his representative capacity. Venue
for the petition shall be addressed as follows;
1. In a case involving a local public body, to the
general district court or circuit court of the
county or city from which the public body has
been elected or appointed to serve and in which
such rights and privileges were so denied;
2. In a case involving a regional public body, to the
general district or circuit court of the county or
city where the principal business office of such
body is located; and
3. In a case involving a board, bureau, commission,
authority, district, institution, or agency of the
state government, including a public institution of
higher education, or a standing or other commit
tee of the General Assembly, to the general dis-
trict court or the circuit court of the residence of
the aggrieved party or of the City of Richmond.
B. In any action brought before a general district
court, a corporate petitioner may appear through its of-
ficer, director or managing agent without the assistance
of counsel, notwithstanding any provision of law or
Rule of the Supreme Court of Virginia to the contrary.
C. Notwithstanding the provisions of § 8.01 -644,
the petition for mandamus or injunction shall be
heard within seven days of the date when the same is
made, provided the party against whom the petition
is brought has received a copy of the petition at least
three working days prior to filing. The hearing on any
petition made outside of the regular terms of the circuit
court of a locality that is included in a judicial circuit
with another locality or localities shall be given prece-
dence on the docket of such court over all cases that are
not otherwise given precedence by law.
D. The petition shall allege with reasonable speci-
ficity the circumstances of the denial of the rights and
privileges conferred by this chapter. A single instance
of denial of the rights and privileges conferred by
this chapter shall be sufficient to invoke the remedies
granted herein. If the court finds the denial to be in
violation of the provisions of this chapter, the petitioner
shall be entitled to recover reasonable costs, includ-
ing costs and reasonable fees for expert witnesses, and
attorneys' fees from the public body if the petitioner
substantially prevails on the merits of the case, unless
special circumstances would make an award unjust.
In making this determination, a court may consider,
among other things, the reliance of a public body on an
opinion of the Attorney General or a decision of a court
that substantially supports the public body's position.
E. In any action to enforce the provisions of this
chapter, the public body shall bear the burden of proof
to establish an exemption by a preponderance of the
evidence. Any failure by a public body to follow the
procedures established by this chapter shall be pre-
sumed to be a violation of this chapter.
F. Failure by any person to request and receive
notice of the time and place of meetings as provided in
§ 2.2 -3707 shall not preclude any person from enforcing
his rights and privileges conferred by this chapter.
§ 2.2 -3714 Violations and penalties
In a proceeding commenced against any officer, em-
ployee, or member of a public body under § 2.2 -3713 for
50 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
a violation of § 2.2 -3704, 2.2- 3705.1 through 2.2-
3705.8, 2.2 -3706, 2.2 -3707, 2.2- 3708,2.2- 3708.1, 2.2-
3710, 2.2 -3711 or 2.2 -3712, the court, if it finds that
a violation was willfully and knowingly made, shall
impose upon such officer, employee, or member in his
individual capacity, whether a writ of mandamus or
injunctive relief is awarded or not, a civil penalty of not
less than $500 nor more than $2,000, which amount
shall be paid into the State Literary Fund. For a second
or subsequent violation, such civil penalty shall be not
less than $2,000 nor more than $5,000.
2014 -2015 Virginia Freedom of Information Act I Conflict of ' Interests Act I Virginia Public Records Act 51
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52 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
V irginia Conflict
of Interests Act
Guide for Local Government Officials
Introduction
The Virginia Conflict of Interests Act regulates the
financial relationship of council members and mayors
with their city or town and with any other governmen-
tal agency that is related to the city or town. The act is
intended to be the one - stop - shopping law for a council
member's financial involvement in dealings with the
city or town.
It regulates how involved a council member may be
in an item being considered by council if he or she has
a financial interest in that item. The act also defines
what constitutes bribery and taking unfair advantage
of information gained by reason of being on council. It
sets penalties for violations and provides a procedural
framework for its enforcement.
Purpose of the act
The first section of the act, Va. Code § 2.2 -3100, sets
out the purpose of the law, citing three main goals:
1. To help ensure that the government will fully
represent the public in its operation;
2. To give citizens confidence in public officials and
the government so they will trust the govern-
ment, by creating a clear set of rules for govern-
ment officials; and,
3. To assemble all the laws affecting conflict of
interests in a single location in order to create
uniform rules. (While COIA largely accomplish-
es this purpose, additional rules are stated in the
Virginia Procurement Act and in various other
code sections.)
The Conflict of Interests Act is codified in Tide
2.2 Chapter 31 of the Code of Virginia, § 2.2 -3100
and following. While this guide describes the general
operation of the law, the reader should consult the law's
specific language for a better understanding (code ref-
erences are given throughout the guide). Furthermore,
a council member with questions about a contract or
transaction should consult the city or town attorney.
The 2014 General Assembly created another
resource that can be consulted with questions. The Vir-
ginia Conflict of Interest and Ethics Advisory Council
(the Council) was formed to encourage and facilitate
compliance with several sections of the Virginia Code,
including State and Local Government Conflict of
Interests Act. The duties and responsibilities of the
Council are discussed throughout this report.
The Council is established in Va Code § 30 -348.
However, the funding for the Council was vetoed
from the state budget. If there is a conflict between the
budget and any other provision of law, the budget shall
prevail. HB5001 & § 4- 13.00. However, the Code still
creates the Council and gives it responsibilities. The
relevant provisions of the Code should be followed but
localities should be aware that there may be changes or
limitations to the Council. VML expects funding for
the operation of the council will be found.
The act contains three general areas of regulation
(listed below). The act also has procedural, enforce-
ment, and penalty provisions that apply to the substan-
tive areas of the law.
What's New
The 2014 General Assembly passed HB 1211, which
was meant to be a comprehensive conflicts and ethics
reform bill. This reform effort came in the wake of the
highly publicized corruption investigation of Governor
McDonnell. While issues concerning state officials
were the motivating factors for this legislation, it also
has significant meaning for localities.
The definition of "personal interest" was updated
during this past session. As described in the following
sections, there are six definitions of personal interest.
Three of these definitions were based on the salary
or income from a business having a value of at least
$10,000 in order to be counted as a personal interest.
Now the financial benefit or liability only needs to meet
a threshold of $5,000 to qualify as a personal interest.
Statement of Economic Interest forms are to be filed
semiannually, rather than annually. Additionally, these
forms are to be filed with the Council. Previously, these
forms were handled by the Virginia Secretary of the
Commonwealth. More detail about this new process is
2014 -2015 Virginia Freedom of Information Act I Conflict of ' Interests Act I Virginia Public Records Act 53
found under the disclosures section of this report.
In the semiannual Statement of Economic Interests
report, officials and employees will need to disclose any
meetings, conferences, or events that they attended if
they received any lodging, transportation, money; or
anything of value with a combined value of at least $200.
Previously, this disclosure was only required if the dis-
closer participated in the meeting, gave a presentation,
or published a work at the meeting, conference, or event.
The corruption investigation that inspired the
General Assembly to act was centered on impermis-
sible gifts. Therefore, the resulting legislation seeks
to clarify what gifts cause a conflict of interest. The
reform bill changes the definition of what qualifies as a
gift and sets a $250 annual limit on tangible gifts. The
changes are explained in the section of this guide on
undue influence.
Localities that employ lobbyists should be aware
that the annual reporting policy has been amended by
HB 1211. Beginning in 2015, lobbyists will be required
to submit reports semiannually on December 15 and
June 15. Lobbyist disclosures must be made to the Vir-
ginia Conflict of Interest and Ethics Advisory Council.
§ 2.2 -426.
Areas of regulation
The act regulates the financial relationship of coun-
cil members in their localities in three general areas:
1. General provisions covering bribes and other il-
legal behavior.
2. Regulation of financial interests a council mem-
ber may have in business dealings with his or her local-
ity and with agencies related to his or her locality. The
act calls this a personal interest in a contract.
3. Regulation of the level of involvement a person,
in his role as a council member or other public office
or job, may have in an item being considered by the
member's locality that involves the member's business,
property or other personal financial interest. The act
calls this a personal interest in a transaction.
I. Generally Prohibited Conduct
Bribes and other illegal behavior
Section 2.2 -3103 prohibits public officials from taking
or soliciting bribes and from allowing money to influence
their actions. This section applies to a person's actions as
a government official; the prohibitions are not aimed at
private businesses that may offer the bribes.
The act prohibits a council member from solicit-
ing or accepting money or benefits for doing his or her
work as a public official. § 2.2- 3103(1). An example
would be a council member who takes money for vot-
ing on a rezoning to help a developer build a large
project. Similarly, a council member may not offer or
take money in exchange for landing himself or herself
or another person a job with a government agency, or
in exchange for obtaining a contract or business deal
with the government. §§ 2.2- 3103(1) & 3103(2).
Undue influence
One step below the outright bribery rule is the pro-
hibition on taking gifts and opportunities while serving
as a public official. §§ 2.2- 3103(5), (6), (8), (9) & 2.2-
3103.1. The act prohibits a council member from ac-
cepting money, loans, gift, services, business opportuni-
ties, or other benefits if it is reasonable to construe that
the benefit was given to influence the council member
in his or her duties. An exception is made for political
campaign contributions but only if the contribution
is used for a political campaign or constituent service
purposes and is reported pursuant to the campaign
disclosure laws.
A typical example of this issue for cities and towns is
when a large developer gives Christmas gifts of sub-
stantial value to the members of council. Whether the
gift complies with the act is a judgment call in most
cases. Is a Christmas turkey reasonable if the developer
is also giving the same gift to his employees, his busi-
ness associates, and his materials suppliers? The cir-
cumstances of the specific case usually indicate whether
the gifts are appropriate.
The 2014 amendments to the act clarify that the
following items are exempted from the prohibition on
gifts: (1) coupons and tickets that are not used; (2) hon-
orary degrees; (3) scholarships or financial aid awards
that were awarded in the same manner as they would
be to the general public; (4) campaign contributions
that are properly received and reported; (5) a gift that
relates to the private profession of the officer or a mem-
ber of the officer's immediate family; and (6) gifts from
personal friends, as the act defines "personal friend."
§ 2.2 -3101.
The act limits who can be considered a personal
friend for the purposes of the disclosure exemption.
The reason for this limitation is to ensure that the
term "personal friend" is not applied loosely, allowing
anyone to qualify for the gift disclosure exemption. A
lobbyist or a lobbyist's principal cannot be considered a
personal friend. An advisory agency, person, organiza-
tion, or business cannot be considered a personal friend
54 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
if that entity or person is a party to a contract with the
local government or agency for which the officer or
employee works. This is true whether the contract has
been granted or if the person, organization, or business
is just seeking to be a party to the contract.
Some may wonder how a public official would
even try to argue that he or she has a personal friend-
ship with an organization or business. In this context,
the terms "organization" and "business" include those
who are officers, directors, owners, or have a control-
ling ownership interest in the organization or business.
§ 2.2- 3101.
In the 2014 session, the General Assembly created a
new code section, § 2.2- 3103.1, that pertains to prohib-
ited gifts. This provision applies to all candidates, offi-
cers, and employees of local governments and advisory
agencies. These individuals may not accept a tangible
gift that is valued at over $250 or a combination of gifts
within a year with an aggregate value of over $250 if it
is given to him by (1) a lobbyist, (2) a lobbyist's prin-
cipal, or (3) a person, organization, or business that is
seeking to be or already is a party to a contract with
the local agency of which he is an officer or employee.
However, the limit only applies to individuals that are
required to file a disclosure form prescribed in § 2.2-
3117. Therefore, it does not seem to apply to officials of
localities with a population under 3,500.
A council member is also prohibited from taking
benefits if he or she knows it is being offered to influ-
ence him or her. § 2.2- 3103(6). Therefore, even if the
gift is not unreasonable, the council member may not
accept it if the circumstances or statements of the per-
son giving it make it clear that the money is being given
to influence the council member.
A further prohibition is aimed at gifts given by a pri-
vate party looking for a specific action by the govern-
ment. § 2.2- 3103(8). It prohibits a council member from
accepting a gift from a private party whose interests
can be affected by the council member's actions, where
the timing of the gift would lead a reasonable person
to question whether the gift is being given to influence
the council member. For example, if the day before an
important council vote on a rezoning, the applicant for
that rezoning gives the council member $2,000 and
calls it a campaign contribution, it would be reason-
able to think the money was given to influence the vote.
Also, if a council member accepts gifts so often that it
creates the appearance that he or she accepts gifts for
doing his or hex job, that behavior constitutes a viola-
tion. § 2.2- 3103(9), Violations of these two prohibitions
may not be the basis for a criminal charge.
Local governments may adopt an ordinance to limit
the dollar value of gifts to the officials and employees
of the locality. § 2.2- 3104.2. A $50 limit is often used.
While this amount is arbitrary, it does make it simpler
for all involved to know what behavior is permissible.
Whether or not the locality adopts an ordinance limit-
ing gift amounts, if an award is made to a local govern-
ment employee for meritorious service by an entity that
is a 501(c)(3) charitable organization, there is no conflict
and no limit on the gift.
Insider information
It is a violation of the act for a public official to use
information not available to the public for his or her own
or another person's economic benefit. § 2.2- 3103(4), For
council members, this prohibition is sometimes unfairly
alleged. For example, a local businessman on council
who pays attention to public plans submitted to the local-
ity and buys land around the project is not violating the
provision. Envious business folks, however, may allege a
violation of insider information due to the appearance of
the situation. When their actions are based on publicly
available information, council members have nothing to
fear from such claims.
II. Regulation of council member's
actions as citizen
Personal interest in a contract
The act sets forth what financial interests a council
member may have in business dealings with his or her
locality and with agencies related to his or her locality.
§ 2.2 -3107. The act calls this a personal interest in a
contract. While this guide's discussion is limited to the
restrictions on council members, the act also sets forth
different restrictions for school board members (§ 2.2-
3108) and for local government employees (§ 2.2- 3109).
Council members need to keep in mind the restrictions
on the employees of a city or town as they carry out
their duties and watch over the affairs of the locality.
According to § 2.2- 3107(A), "no person elected or
appointed as a member of the governing body of a
county, city or town" shall have "a personal interest in
a contract" with his or her city or town or with certain
other government agencies. (The definition of a per-
sonal interest in a contract is described below.)
The council member may not have a personal inter-
est in a contract with any agency of his or her locality,
including the departments of the city or town. In ad-
dition, he or she may not have a personal interest in a
contract with any government agency that is under the
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 55
council's ultimate control. For example, if the council
appoints a library board, then council members would
have ultimate control over the library. Therefore, a
council member could not be involved in a contract
with the library board.
This section of the act also prohibits involvement
in a contract with any agency if the council appoints
a majority of the members of that agency's govern-
ing body. For example, if the locality is a member of
a regional jail and its council appoints four of the jail
board's seven members, then a council member would
be prohibited from being involved in a contract with
the jail board.
Definition of personal interest and personal
interest in a contract
The act only prohibits a council member's participa-
tion if he or she has a personal interest in the contract with
one of the agencies described. The definition of "personal
interest in a contract" has two parts: "a personal interest"
and a "personal interest in a contract." § 2.2 -3101.
Personal interest. The definition of a personal
interest is the key building block of the act. The term is
used throughout. A personal interest exists if any one of
the following tests is met:
1. The council member owns at least 3 percent of
the equity of a business.
2. The council member has annual income that is
or reasonably could be in excess of $5,000 from
owning real or personal property or from owning
a business.
3. The council member has a salary from the
business involved in a contract that exceeds or
reasonably could exceed $5,000 annually.
4. The council member's ownership interest in
property exceeds $5,000.
5. The council member's liability for a business
exceeds 3 percent of the equity of the business.
6. The council member has an option on prop-
erty and, upon exercise of the option, his or her
ownership will meet the levels in either test I or
4, above.
Immediate Family. In addition to the council
member, if any person in the council member's im-
mediate family has one of the six types of a personal
interest, the personal interest exists for the council
member. The term immediate family always includes
the person's spouse. The term also includes any child
living in the home who is the council member's de-
pendent. The term "child" refers to anyone that is less
than 18 years old. Therefore, the definition applies to
all minor dependents regardless of their relationship
to the council member but it does not apply to adult
children of the member, even if they are still claimed
as a dependent. § 1 -207. If the child, however, is not a
dependent of the council member, the child would not
be included. § 3101.
As this definition demonstrates, if a council mem-
ber's wife has a personal interest in a business that
would like to contract with the city, the contract is
prohibited even though the husband /council member
has no involvement.
Personal interest in a contract. If the council
member's involvement meets any one of the six defini-
tions of a personal interest, the next step is determining
whether the council member has a personal interest in
the contract in question. According to the act's defini-
tion, a council member has a personal interest in a
contract with a government agency if that contract is
with the council member or with a business in which he
or she has a personal interest. § 2.2 -3101.
In looking at a particular contract, it is important
to ask: Is a council member or his or her business or
property involved in the contract? Does that council
member have a personal interest as defined by the act?
The answers to these questions will help determine if
the contract is prohibited under the act.
Situations where conflicts do not exist
Some situations are not conflicts under the act, even
though they may appear to be natural conflicts. If a
council member earns a total salary of $4,900 per year
from a business, that business could contract with the
locality, because the council member would not have
a personal interest for purposes of act. As the third
test of the definition salary - shows, the salary must
exceed $5,000 per year to create a personal interest.
If a council member serves on the board of a
charitable entity, the fact that the council member has
divided loyalties between the charity and the locality
does not create a conflict, so long as the council mem-
ber serves on the charity's board for less than $5,000
compensation per year and doesn't own as much as
three percent of the equity of the charity. § 2.2 -3110.
Exceptions to conflicts in contracts
The act sets out a series of exceptions to the prohibi-
tions on having a personal interest in a contract.
Exceptions that apply only to council mem-
56 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
bers. Several exceptions are specific to council mem-
bers. § 2.2- 3107(B).
1. A council member may be an employee of the
locality as long as the employment predates his
appointment or election to council. § 2.2- 3107(B)
(1). This section of the law also allows employ-
ment and service on council if the person was an
employee prior to July 1, 1983, whether or not he
or she was elected to council after that date. Even
though the law allows employees to serve on
council, some localities have banned the practice
by charter or by local regulation. If an employee
serves on council, he or she will regularly run
into potential conflicts when matters come before
council that affect his or her employment, such as
salary and discipline decisions. (This issue is ex-
plored below, in the section on personal interests
in a transaction).
2. A council member may buy goods or services
from his or her locality as long as they are made
available to the public at uniform prices. § 2.2-
3107(B)(2).
3. A council member may sell goods to his or her
locality if the following conditions are met, pur-
suant to § 2.2- 3107(B)(3):
a. The purchase must be made by competi-
tive sealed bidding. Therefore, if the contract
is being solicited by a request for proposals, the
exception doesn't apply.
b. The contract must be for goods, not
services, and the need for the goods must have
been established prior to the person's coming on
council. An example is if the city needs a tractor,
if a council member has a tractor dealership, and
if the city had bought tractors prior to the council
member's election.
c. The council member who wants to sell to
the locality must play no role in preparing the
specifications for the purchase.
d. The remaining members of council must
pass a resolution in writing that the council
member's bidding on the contract is in the public
interest.
Note: this exception does not apply to provid-
ing services, rather only goods. For example, a
council member who is an accountant could not
provide auditing services to his or her town or city.
Exceptions that apply to all local govern -
ment officials and employees. The following eight
exceptions to the prohibition on having a personal in-
terest in a contract apply not only to council members,
but to all other local government officials and employ-
ees as well. § 2.2- 3110(A).
1. Any sale, lease, or exchange of real property
between a council member and his or her lo-
cality is allowed as long as the council member
doesn't participate in the deal on behalf of council,
and the fact that the member wasn't involved is
recorded in the public record of the government
involved in the transaction. The reason for this ex-
ception is that each parcel of real estate is deemed
to be unique. If a city needs a certain lot or parcel,
the fact that a council member owns it should not
prohibit the purchase by the city. § 2.2- 3110(A)(1).
2. The prohibition does not apply to contracts for
the publication of official notices, presumably so
that the local newspaper may be used for ads re-
quired by state law even when a council member
is an owner or employee of that paper. This is a
balancing of needs: the state code requires many
notices to be run in the local paper. Without this
exception, those requirements could not be met.
§ 2.2- 3110(A)(2).
3. For towns and cities with a population under
10,000, contracts between a council member and
his or her locality are allowed, despite the general
prohibition, if the total of those contracts does
not exceed $10,000 per year. Further, contracts
up to $25,000 are allowed if the contract is let by
competitive sealed bidding. This higher level only
applies if the public official has filed a statement of
economic interests form. Every council member
must file that form, so the requirement does not
create an added obligation, unless the locality has
a population of less than 3,500. § 2.2- 3110(A)(3).
4. If the sole personal interest the council member
has in the contract is his or her employment
by the contracting business and has an annual
salary exceeding $10,000, the business may
contract with the locality. For this exception to
apply, the council member and members of his or
her immediate family must have no authority to
participate in the deal, and much not participate
in the deal. Further, the council member must
not participate in the deal on behalf of the local-
ity. A typical example is a contract with a large
engineering firm that is the council member's
employer. § 2.2- 3110(A)(4).
5. If the council member is employed by a public
service corporation, a bank, a savings and loan
association, or a public utility, and if he or she
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 57
disqualifies himself from participating on behalf
of the city or town and does not participate for
his or her locality, then the utility, bank, etc.,
may contract with the locality. § 2.2- 3110(A)(6).
6. The prohibition does not apply to contracts for
goods or services below $500. But if a locality
normally purchased paper on an annual con-
tract, for example, could it split up a year's worth
of paper contracts so that each is less than $500?
While the section is silent on splitting up a larger
contract to meet this exception, the consensus
is that this circumvention would violate the law.
§ 2.2- 3110(A)(7).
7. Program grants made to a council member are
allowed if the rates or amounts paid to all quali-
fied applicants are uniform and are established
solely by the agency administering the grants.
§ 2.2- 3110(A)(8).
8. If the spouse of a council member is employed
by the locality, the personal interest prohibition
does not apply if the spouse was employed by
the agency more than five years prior to marry-
ing the council member. § 2.2- 3110(A)(9). If one
spouse is the supervisor of the spouse, the conflict
does not exist if the subordinate spouse earns less
than $35,000 per year. § 2.2- 3110(B).
III. Council member's participation
as public official
Personal interest in a transaction
The rule concerning a personal interest in a trans-
action sets out the level of involvement a council
member may have in an item being considered by his
or her council (the transaction) that involves his or her
business, property, or other personal financial interest.
§ 2.2 -3112.
As with a personal interest in a contract, the first
step is to determine whether the council member has a
personal interest in the transaction. The same defini-
tion of a personal interest is used in the transactions
provisions as in the contracts provisions, but the defini-
tion of personal interest in a transaction goes beyond
the definition of a personal interest in a contract.
Definition of transaction & personal interest
in a transaction
Transaction. In the context of a city or town
council, a transaction is defined as any matter consid-
ered by the council, a council committee or subcom-
mittee, or any department, agency, or board of the
locality, if any official action is taken or is being con-
templated. § 2.2 -3101.
Personal interest in a transaction. This term
is broadly defined as a personal interest of a council
member "in any matter considered by his [locality] ".
§ 2.2 -3101. Specifically, a personal interest in a transac-
tion exists if a council member or immediate family
member has a personal interest (as defined in Part II) in
property, business, or governmental agency or rep-
resents /provides services to any individual or business
property and the property, business, or represented/
served individual or business either (1) is the subject of
the transaction, or (2) may realize a reasonably foresee-
able benefit or detriment as the result of the transaction.
A typical example of representing or servicing and
individual or business is where the council member is
an accountant and his or her accounting firm handles
the books of the business that is the subject of the trans-
action. Another common example is where the council
member or spouse is a principal in an engineering
firm that represents an applicant for a land -use permit
before council. In these cases, the council member may
well have a personal interest in the transaction unless
he or she is not directly involved in the representation.
An example of a reasonably foreseeable benefit is a
council member who loaned $100,000 to a developer,
and the developer needs a rezoning to repay the loan.
In practice, if a matter comes before council or a
council committee or involves any department of the
locality, and a council member has a personal interest
in the subject matter or represents the business in-
volved, the council member must then follow the act's
requirements for his or her participation in § 2.2 -3112
(discussed below in "Levels of transactions" section).
Exceptions and limitation on conflicts
A personal interest in a transaction does not exist
if the council member serves on a not - for -profit board
without pay and neither the council member not his
immediate family has a personal interest in the not -for-
profit organization.
No conflict exists if an employee or council member
of a locality is appointed by his locality to an ex -officio
role in a governmental agency and the conflict exists
solely due to the employment with the locality or the
employment by the locality is of his or her spouse. See
the definition of "personal interest in a transaction" in
§ 2.2 -3101.
The act provides in § 2.2- 3112(B) that if a council
member is disqualified from participating in the trans-
58 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
action, he or she may still represent his private interests
before council as long as he or she isn't paid for the rep-
resentation and discloses the nature of his or her interest.
Other employees
Section 2.2 -3109 sets out the rules for other govern-
ment employees having a personal interest in a transac-
tion. The section also contains a list of exceptions that
apply to the employees of the government agencies in
the locality. Those rules and exceptions do not apply to
council members. For example, an employee's spouse
may contract with the locality to provide services (for
example, accounting) if certain conditions are met. In
contrast, a council member's spouse could not provide
services to the locality.
Levels of transactions
The fact that a council member has a personal
interest in a transaction before council does not auto-
matically require that the member disqualify himself
or herself. The act's requirements for participation, if
a personal interest in the transaction does exist, set out
three levels of transactions. § 2.2- 3112(A).
1. If the transaction deals solely with property, a
business, or a government agency in which the
council member has a personal interest, then
the council member must disqualify himself or
herself. The provision further states that dis-
qualification is required if the transaction applies
solely to a business that is a parent- subsidiary
(hold more than a 50% controlling interest) or
considered an affiliated business (where the same
owner or manager controls both businesses) the
business that in which that council member has a
personal interest.
2. If the transaction affects a business, profession,
occupation or group of three or more members
that the council member belongs to, the coun-
cil member may participate in the transaction
only if he or she completes a disclosure form,
described in the "Disclosures" section, below.
§ 2.2- 3112(A)(2). For example, if a council votes
on the tax rate for professionals, and if the coun-
cil member is an attorney, that puts him in the
subject group affected by the professional license
tax. If a town only has two attorneys, then the
council member /attorney must disqualify himself
or herself from participating.
3. If the transaction affects the public generally,
the council member may participate. A council
member may obviously vote on raising taxes,
even though it affects him or her, because it af-
fects the public generally. In comparing items 2
and 3, many transactions are considered to affect
the public generally, even though not every mem-
ber of the public is affected. For example, the real
estate tax applies only to property owners, but it
is considered to affect the general public.
Additional exception
If the council member is in a firm that rep-
resents the subject of the transaction, but the council
member does not personally represent the subject in the
transaction, he or she may participate in the council
discussion if a disclosure form, described below, is com-
pleted. § 2.2- 3112(A)(3).
Effects of disqualification
If a council member is disqualified from partici-
pating in a transaction, the act requires several steps.
§ 2.2 -3112:
1. The council member must disclose the interest
that causes the disqualification by identifying the
interest, including the name and address of the
business or property. § 2.2- 3115(E). The disclo-
sure is required whether the law requires the
disqualification or the council member volun-
tarily disqualifies himself out of an abundance of
caution.
2. The disclosure must be kept for five years in the
records of the council.
3. The council member may not vote on or partici-
pate in discussion on the transaction.
4. The council member may not attend the portion
of a closed meeting at which the transaction is
discussed.
5. The council member may not discuss the matter
with anyone in the government who is involved
in the transaction.
Savings clause for certain votes
The act contains a savings clause to allow the
remainder of council to vote when disqualifications rob
the council of a quorum. § 2.2- 3112(C). The council
may act by a vote of the majority of members who
are not disqualified. Even if the law requires a unani-
mous vote, it only has to be by a unanimous vote of
the remaining members. This provision would seem
to have the odd result of having only one member of a
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 59
seven - member council being able to vote and fulfill a
unanimous vote requirement if the other six members
are disqualified. One caution - the Virginia Supreme
Court has ruled that when there are disqualifica-
tions, and a vote is taken using this savings clause, the
disqualified members of council must remain present to
maintain a quorum. If the disqualified members leave
the meeting, such that fewer members are present than
required for a quorum — a quorum does not exist and
the meeting cannot continue. See Jakabcin o. Front Royal,
271 Va. 660, 628 S.E.2d 319 (2006).
In order for a council to sell or lease land, state
law requires a three - fourths vote of all people elected
to council. § 15.2 -2100. Section 2.2- 3112(C) of the act
allows a council member to participate in a discussion
and vote on a proposed sale, lease, or similar convey-
ance of land if the council member's only personal
interest in that sale is that he or she is employed by the
business that is subject to the contract for the deal.
IV. Disclosures
If a transaction affects a group, business, or profes-
sion as set forth in § 2.2- 3112(A)(2), the council member
may participate if he or she certifies in good faith that
he or she can represent the public fairly in the transac-
tion. The certification requires the following elements
to be identified - § 2.2- 3115(H):
• The transaction;
• The nature of the personal interest;
• The fact that the council member is a member of a
business, profession, occupation, or group that will
be affected by the transaction;
• A statement that the council member is able to
participate fairly, objectively, and in the public
interest.
If the transaction affects a party that the council
member's firm represents but the council member is not
involved on behalf of the firm, the disclosure requires
the following elements to be identified. § 2.2- 3115(I):
• The transaction involved;
• The fact that a party to the transaction is a client
of the council member's firm;
• A statement that the council member does not
personally represent the client;
• A statement that the council member is able to par-
ticipate fairly, objectively, and in the public interest.
If either of the disclosures is required, the council
member must either state it at the meeting or file it in
writing with the clerk of the council or the manager. A
written disclosure should be filed before the meeting or,
if that is impracticable, by the end of the following busi-
ness day. § 2.2- 3115(H), (I). In both cases, the disclosure
is public. VML advises that it is better to make the
disclosure at the meeting, orally, when the transaction
is on the floor. This conveys a clearer message of self -
disqualification than simply handing the clerk a written
statement. If the disqualification is handed in, instead
of being announced, the public will wonder why the
council member is not participating.
Semiannual Statement
of Economic Interests Form
In addition to transaction - specific disclosures, each
council member of every locality with a population of
more than 3,500 must file the Statement of Economic
Interests form. This form has traditionally been filed
annually by December 15 of each year. Effective on
July 1, 2015, the Statement of Economic Interests form
must be filed semiannually with the first filing deadline
of Dec. 15, 2015 for the preceding six -month period
complete through the last day of October and then by
June 15 for the preceding six -month period complete
through the last day of April (§ 2.2- 3115(A); the form is
found in § 2.2- 3117). The filing will continue semiannu-
ally on Dec. 15 and June 15 of each year.
The disclosure form is found in Virginia Code § 2.2-
3117. Officials and employees are required to disclose
various payments and privileges associated with their
position. One of these provisions requires an official
or employee to disclose a presentation in a single talk,
participation in a meeting, or publication of a work if,
for that service, he received lodging, transportation,
money, or anything of value with a combined value of
at least $200. In 2014 the General Assembly expanded
the disclosure requirement to include attendance at any
meetings, conferences, or events that the individual at-
tended if the event was designed to educate the official
on his or her duties or enhance his or her knowledge
or skills related to the position and the official received
lodging, transportation, money, or anything of value
with a combined value of at least $200.
The Virginia Conflict of Interest and Ethics Adviso-
ry Council must distribute the forms each year to clerks
of council at least 30 days prior to the filing deadline;
the clerks, in turn, are to distribute them to council
members and any others who must file at least 20 days
prior to the filing deadline. § 2.2- 3115(A) & (D). These
new forms will require the disclosure of holdings in
excess of $5,000, which is a change from the previous
bar of $10,000. § 2.2 -3117.
60 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
Council may also adopt an ordinance to require
other officials and employees of the locality to file the
Statement of Economic Interests form pursuant to §
2.2- 3115(A). Typically, this provision is used for the
city or town manager, if at all. Many localities do not
require the form to be completed by any employees or
officials. The council may require boards, commissions
and councils it appoints to file a disclosure form. § 2.2-
3115(B).
In localities with a population of more than 3,500,
members of planning commissions, boards of zoning
appeals, real estate assessors, and all county, city and
town managers must file an annual disclosure of real
estate interests. § 2.2- 3115(G).
The section clarifies that no local government of-
ficer or employee is required to file any disclosures not
specifically mentioned in the article. § 2.2- 3115(C).
* Former disclosure forms and additional
information are available on the Secretary of
the Commonwealth's COIA website: https: //
commonwealth.virginia.gov/va-government/
conflict -of- interest/. As of the filing of this report,
the website has not been updated to reflect the new
legislation. Once the Virginia Conflict of Interest and
Ethics Advisory Council has been established, the
Council will be the appropriate authority to consult for
forms and information.
V. Enforcement & penalties
Criminal penalties
A knowing violation of the Conflict of Interests Act
is a Class 1 misdemeanor. § 2.2 -3120. According to the
act, a violation is knowingly made if the council mem-
ber acts or refuses to act when he or she knows that the
behavior is either prohibited or required by the act. An
example of refusing to do a required act is a council
member's refusal to file a disclosure form. A Class 1
misdemeanor has maximum penalties of one year in
jail and a fine of $2,500.
Three other specific violations have a lower, Class 3
penalty (maximum $500 fine):
1. Failure to disqualify oneself from participating in
a transaction.
2. Failure to file the annual statement of economic
interests.
3. Failure to file the statement of reasons for a dis-
qualification in a transaction.
Additional consequences for violations
In addition to the criminal consequences, if the
council member is found guilty of a knowing violation,
he is also guilty of malfeasance in office. In that case,
the judge may order the forfeiture of the seat on coun-
cil. § 2.2 -3122.
If a contract is entered into that involves either a
council member who violated the general provisions
relating to bribes, insider information, undue influence
(§ 2.2- 3103), or a violation of the "personal interest in
a contract" provisions, the council may rescind the
contract. In that case, an innocent contractor may not
receive the profits he anticipated in the deal. The con-
tractor may only receive a "reasonable value," accord-
ing to § 2.2 -3123.
If a council action involves a violation of "the per-
sonal interest in a transaction" requirements, the coun-
cil may rescind the award of a contract or other deci-
sion made. In rescinding the action, the best interests of
the locality and any third parties are to be considered.
§ 2.2- 3112(C).
If a council member violates any of the general
provisions related to bribes and other illegal behavior,
the personal interest in a contract rules, or the per-
sonal interest in a transaction rules, any value he or she
received from the deal is to be forfeited. If the violation
was knowingly made, the judge may impose a civil pen-
alty equal to the value received.
Advisory opinions
Commonwealth's Attorney
The law allows some opportunity to avoid a
problem by setting up a process to obtain an opinion
on the matter from the commonwealth's attorney.
The commonwealth's attorney is required by § 2.2-
3126(B) to issue advisory opinions on whether a fact
situation constitutes a violation. In addition to issuing
opinions, the commonwealth's attorney is charged with
prosecuting violations of the act by local officials. If the
council member gives the attorney all the relevant facts
and the attorney determines that the council member
is allowed by law to participate, the council member
may not be prosecuted for doing so. § 2.2- 3121(B). If
the commonwealth's attorney opines that the facts
constitute a violation, the council member then may
ask the attorney general to review and override the
local opinion. The law makes it clear that any written
opinions are public records and are therefore available
to the public. If the council member obtains a written
opinion from the town or city attorney, based on
2014 -2015 Virginia Freedom of Information Act I Conflict of ' Interests Act I Virginia Public Records Act 61
full disclosure of the facts, the council member may
introduce the favorable opinion from the attorney upon
challenge. § 2.2- 3121(C).
The Virginia Conflict of Interest
and Ethics Advisory Council
The Council, once it starts operation, will be an-
other resource that may be used to help localities avoid
a conflicts or ethics problem. It has the authority to
issue formal advisory opinions and guidelines relating
to ethics and conflicts issues. Additionally, the Coun-
cil may issue informal advice in response to specific
questions. Any informal advice issued by the Council is
protected by attorney- client privilege. This means that
the opinions will not be public, nor are they subject to
disclosure under the Virginia Freedom of Information
Act. § 30- 349(4).
Another role of the Council is to provide trainings
on ethics and conflicts issues. These training seminars
will be available to lobbyists, state and local govern-
ment officers and employees, legislators, and other in-
terested persons. The materials for these trainings will
also be published by the Council, when it is deemed
appropriate. § 30- 349(5), (6).
Summary
The Virginia Conflict of Interests Act determines
when public officials and employees have personal
interests in public contracts or transactions, if those in-
terests conflict with the officials' public duties, and how
the officials should behave considering such a conflict.
COIA dictates the terms for disclosure of public offi-
cials' personal and financial interests and decides when
officials must disqualify themselves. The act also defines
other types of conduct that public officials are prohib-
ited from engaging in, including involvement in bribery,
undue influence, and use of insider information.
Council members should always consult COIA's
specific language if a potential conflict may arise.
Inquiries about specific contracts or transactions should
be directed to the relevant city or town attorney. We
hope this guide will help local governments become
better informed of their responsibilities if a prospective
conflict may occur. Questions or comments for
future editions should be sent to the author, VML
General Counsel Mark K. Flynn, at (804) 523 -8525 or
mflynn @vml.org.
62 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
Title 2.2. Administration of Government
Subtitle I. Organization of State Government
Part E. State Officers and Employees
Chapter 31. State and Local Government Conflict of Interests Act
§ 2.2 -3100
Policy; application; construction ........................................................................................................... ...............................
64
§ 2.2- 3100.1
Copy of chapter; review by officers and employees .............................................................................. ...............................
64
§ 2.2 -3101
Definitions .............................................................................................................................................. ...............................
64
§ 2.2 -3102
Application ............................................................................................................................................. ...............................
66
§ 2.2 -3103
Prohibited conduct ................................................................................................................................ ...............................
66
§ 2.2- 3103.1
Certain gifts prohibited ........................................................................................................................ ...............................
67
§ 2.2 -3104
Prohibited conduct for certain officers and employees of state government ........................................ ...............................
67
2.2- 3104.01
Prohibited conduct; bids or proposals under the Virginia Public Procurement Act, Public- Private
Transportation Act, and Public - Private Education Facilities and Infrastructure Act ........................ ...............................
67
§ 2.2- 3104.02
Prohibited conduct for constitutional officers ....................................................................................... ...............................
68
§ 2.2- 3104.1
Exclusion of certain awards from scope of chapter .............................................................................. ...............................
68
§ 2.2- 3104.2
Ordinance regulating receipt of gifts .................................................................................................... ...............................
68
§ 2.2 -3105
Application ............................................................................................................................................. ...............................
68
§ 2.2 -3107
Prohibited contracts by members of county boards of supervisors, city councils and town councils . ...............................
68
§ 2.2 -3109
Prohibited contracts by other officers and employees of local governmental agencies ....................... ...............................
68
§ 2.2 -3110
Further exceptions ................................................................................................................................. ...............................
69
§ 2.2 -3111
Application ............................................................................................................................................. ...............................
70
§ 2.2 -3112
Prohibited conduct concerning personal interest in a transaction; exceptions ................................... ...............................
70
§ 2.2 -3113
Application ................................................................................................................................................ .............................71
§ 2.2 -3115
(Effective untilJuly 1, 2015) Disclosure by local government officers and employees ............................ .............................71
§ 2.2 -3116
Disclosure by certain constitutional officers ............................................................................................ .............................73
§ 2.2 -3117
Disclosure form ......................................................................................................................................... .............................74
§ 2.2 -3118
Disclosure form; certain citizen members ............................................................................................ ...............................
90
2.2- 3118.1
Special provisions for individuals serving in or seeking multiple positions or offices; reappointees ... ...............................
95
§ 2.2 -3119
Additional provisions applicable to school boards and employees of school boards; exceptions ........ ...............................
95
§ 2.2 -3120
Knowing violation of chapter a misdemeanor ..................................................................................... ...............................
96
§ 2.2 -3121
Advisory opinions ................................................................................................................................. ...............................
96
§ 2.2 -3122
Knowing violation of chapter constitutes malfeasance in office or employment ................................ ...............................
96
§ 2.2 -3123
Invalidation of contract; recision of sales ............................................................................................. ...............................
96
§ 2.2 -3124
Civil penalty from violation of this chapter ......................................................................................... ...............................
96
§ 2.2 -3125
Limitation of actions ............................................................................................................................ ...............................
96
§ 2.2 -3126
Enforcement .......................................................................................................................................... ...............................
97
§ 2.2 -3127
Venue .................................................................................................................................................... ...............................
97
§ 2.2 -3128
Semiannual orientation course ............................................................................................................. ...............................
98
§ 2.2 -3129
Records of attendance ........................................................................................................................... ...............................
98
§ 2.2 -3130
Attendance requirements ...................................................................................................................... ...............................
98
§ 2.2 -3131
Exemptions ............................................................................................................................................ ...............................
98
2014 -2015 Virginia Freedom of Information Act I Conflict of ' Aterests Act I Virginia Public Records Act 63
Article 1. General Provisions
§ 2.2 -3100. Policy; application; construction
The General Assembly, recognizing that our
system of representative government is dependent in
part upon (i) citizen legislative members represent-
ing fully the public in the legislative process and (ii) its
citizens maintaining the highest trust in their public
officers and employees, finds and declares that the
citizens are entitled to be assured that the judgment of
public officers and employees will be guided by a law
that defines and prohibits inappropriate conflicts and
requires disclosure of economic interests. To that end
and for the purpose of establishing a single body of law
applicable to all state and local government officers
and employees on the subject of conflict of interests, the
General Assembly enacts this State and Local Govern-
ment Conflict of Interests Act so that the standards of
conduct for such officers and employees may be uni-
form throughout the Commonwealth.
This chapter shall supersede all general and special
acts and charter provisions which purport to deal
with matters covered by this chapter except that the
provisions of §§ 15.2 -852, 15.2 -2287, 15.2- 2287.1, and
15.2 -2289 and ordinances adopted pursuant thereto
shall remain in force and effect. The provisions of this
chapter shall be supplemented but not superseded by
the provisions on ethics in public contracting in Article
6 (§ 2.2 -4367 et seq.) of Chapter 43 of this title and
ordinances adopted pursuant to § 2.2- 3104.2 regulating
receipt of gifts.
The provisions of this chapter do not preclude
prosecution for any violation of any criminal law of
the Commonwealth, including Articles 2 (Bribery and
Related Offenses, § 18.2 -438 et seq.) and 3 (Bribery of
Public Servants and Party Officials, § 18.2 -446 et seq.)
of Chapter 10 of Title 18.2, and do not constitute a
defense to any prosecution for such a violation.
This chapter shall be liberally construed to accom-
plish its purpose.
§ 2.2- 3100.1. Copy of chapter; review by
officers and employees
Any person required to file a disclosure statement
of personal interests pursuant to subsections A or B of
§ 2.2 -3114, subsections A or B of § 2.2 -3115 or § 2.2-
3116 shall be furnished by the public body's adminis-
trator a copy of this chapter within two weeks following
the person's election, reelection, employment, appoint-
ment or reappointment.
All officers and employees shall read and familiarize
themselves with the provisions of this chapter.
§ 2.2 -3101. Definitions
As used in this chapter, unless the context requires a
different meaning:
"Advisory agency" means any board, commission,
committee or post which does not exercise any sover-
eign power or duty, but is appointed by a governmental
agency or officer or is created by law for the purpose
of making studies or recommendations, or advising or
consulting with a governmental agency.
"Affiliated business entity relationship" means a
relationship, other than a parent- subsidiary relation-
ship, that exists when (i) one business entity has a
controlling ownership interest in the other business
entity, (ii) a controlling owner in one entity is also a
controlling owner in the other entity, or (iii) there is
shared management or control between the business
entities. Factors that may be considered in determining
the existence of an affiliated business entity relationship
include that the same person or substantially the same
person owns or manages the two entities, there are
common or commingled funds or assets, the business
entities share the use of the same offices or employees,
or otherwise share activities, resources or personnel on
a regular basis, or there is otherwise a close working
relationship between the entities.
"Business" means a corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
trust or foundation, or any other individual or entity
carrying on a business or profession, whether or not for
profit.
"Contract" means any agreement to which a
governmental agency is a party, or any agreement on
behalf of a governmental agency that involves the pay-
ment of money appropriated by the General Assembly
or a political subdivision, whether or not such agree-
ment is executed in the name of the Commonwealth, or
some political subdivision thereof. "Contract" includes
a subcontract only when the contract of which it is a
part is with the officer's or employee's own governmen-
tal agency.
"Council" means the Virginia Conflict of Interest
and Ethics Advisory Council established in § 30 -355.
"Employee" means all persons employed by a gov-
ernmental or advisory agency, unless otherwise limited
by the context of its use.
"Financial institution" means any bank, trust com-
pany, savings institution, industrial loan association,
64 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
consumer finance company, credit union, broker - dealer
as defined in subsection A of § 13.1 -501, or invest-
ment company or advisor registered under the federal
Investment Advisors Act or Investment Company Act
of 1940.
"Gift" means any gratuity, favor, discount, en-
tertainment, hospitality, loan, forbearance, or other
item having monetary value. It includes services as
well as gifts of transportation, local travel, lodgings
and meals, whether provided in -kind, by purchase of
a ticket, payment in advance or reimbursement after
the expense has been incurred. "Gift" does not include
(i) any offer of a ticket, coupon, or other admission or
pass unless the ticket, coupon, admission, or pass is
used; (ii) honorary degrees ; (iii) any athletic, merit,
or need -based scholarship or any other financial aid
awarded by a public or private school, institution of
higher education, or other educational program pursu-
ant to such school, institution, or program's financial
aid standards and procedures applicable to the general
public; (iv) a campaign contribution properly received
and reported pursuant to Chapter 9.3 (§ 24.2 -945 et
seq.) of Title 24.2; (v) any gift related to the private
profession or occupation of an officer or employee or
of a member of his immediate family; or (vi) gifts from
relatives or personal friends. For the purpose of this
definition, "relative" means the donee's spouse, child,
uncle, aunt, niece, or nephew; a person to whom the
donee is engaged to be married; the donee's or his
spouse's parent, grandparent, grandchild, brother, or
sister; or the donee's brother's or sister's spouse. For the
purpose of this definition, "personal friend" does not
include any person that the filer knows or has reason
to know is (a) a lobbyist registered pursuant to Article 3
(§ 2.2 -418 et seq.) of Chapter 4 of Title 2.2; (b) a lobby-
ist's principal as defined in § 2.2 -419; (c) for an officer or
employee of a local governmental or advisory agency,
a person, organization, or business who is a party to
or is seeking to become a party to a contract with the
local agency of which he is an officer or an employee;
or (d) for an officer or employee of a state governmental
or advisory agency, a person, organization, or business
who is a party to or is seeking to become a party to a
contract with the Commonwealth. For purposes of this
definition, "person, organization, or business" includes
individuals who are officers, directors, or owners of
or who have a controlling ownership interest in such
organization or business.
"Governmental agency" means each component
part of the legislative, executive or judicial branches
of state and local government, including each office,
department, authority, post, commission, committee,
and each institution or board created by law to exercise
some regulatory or sovereign power or duty as distin-
guished from purely advisory powers or duties. Corpo-
rations organized or controlled by the Virginia Retire-
ment System are "governmental agencies" for purposes
of this chapter.
"Immediate family" means (i) a spouse and (ii) any
child who resides in the same household as the officer
or employee and who is a dependent of the officer or
employee.
"Officer" means any person appointed or elected to
any governmental or advisory agency including local
school boards, whether or not he receives compensa-
tion or other emolument of office. Unless the context
requires otherwise, "officer" includes members of the
judiciary.
"Parent- subsidiary relationship" means a rela-
tionship that exists when one corporation directly or
indirectly owns shares possessing more than 50 percent
of the voting power of another corporation.
"Personal interest" means a financial benefit or
liability accruing to an officer or employee or to a
member of his immediate family. Such interest shall
exist by reason of (i) ownership in a business if the
ownership interest exceeds three percent of the total
equity of the business; (ii) annual income that exceeds,
or may reasonably be anticipated to exceed, $5,000
from ownership in real or personal property or a busi-
ness; (iii) salary, other compensation, fringe benefits, or
benefits from the use of property, or any combination
thereof, paid or provided by a business or governmental
agency that exceeds, or may reasonably be anticipated
to exceed, $5,000 annually; (iv) ownership of real or
personal property if the interest exceeds $5,000 in
value and excluding ownership in a business, income,
or salary, other compensation, fringe benefits or ben-
efits from the use of property; (v) personal liability in-
curred or assumed on behalf of a business if the liability
exceeds three percent of the asset value of the business;
or (vi) an option for ownership of a business or real or
personal property if the ownership interest will consist
of clause (i) or (iv) above.
"Personal interest in a contract" means a personal
interest that an officer or employee has in a contract
with a governmental agency, whether due to his being
a party to the contract or due to a personal interest in a
business that is a party to the contract.
"Personal interest in a transaction" means a per -
sonal interest of an officer or employee in any matter
considered by his agency. Such personal interest exists
when an officer or employee or a member of his im-
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 65
mediate family has a personal interest in property or
a business or governmental agency, or represents or
provides services to any individual or business and such
property, business or represented or served individual
or business (i) is the subject of the transaction or (ii)
may realize a reasonably foreseeable direct or indirect
benefit or detriment as a result of the action of the
agency considering the transaction. Notwithstanding
the above, such personal interest in a transaction shall
not be deemed to exist where (a) an elected member of
a local governing body serves without remuneration
as a member of the board of trustees of a not - for -profit
entity and such elected member or member of his
immediate family has no personal interest related to
the not - for -profit entity or (b) an officer, employee, or
elected member of a local governing body is appointed
by such local governing body to serve on a governmen-
tal agency, or an officer, employee, or elected member
of a separate local governmental agency formed by a
local governing body is appointed to serve on a govern-
mental agency, and the personal interest in the trans-
action of the governmental agency is the result of the
salary, other compensation, fringe benefits, or benefits
provided by the local governing body or the separate
governmental agency to the officer, employee, elected
member, or member of his immediate family.
"State and local government officers and employees"
shall not include members of the General Assembly.
"State filer" means those officers and employees
required to file a disclosure statement of their personal
interests pursuant to subsection A or B of § 2.2 -3114.
"Transaction" means any matter considered by any
governmental or advisory agency, whether in a com-
mittee, subcommittee, or other entity of that agency or
before the agency itself, on which official action is taken
or contemplated.
Article 2. Generally Prohibited
and Unlawful Conduct
§ 2.2 -3102. Application
This article applies to generally prohibited conduct
that shall be unlawful and to state and local govern-
ment officers and employees.
§ 2.2 -3103. Prohibited conduct
No officer or employee of a state or local govern-
official duties, except the compensation, expenses
or other remuneration paid by the agency of
which he is an officer or employee. This prohibi-
tion shall not apply to the acceptance of special
benefits that may be authorized by law;
2. Offer or accept any money or other thing of value
for or in consideration of obtaining employment,
appointment, or promotion of any person with
any governmental or advisory agency;
3. Offer or accept any money or other thing of
value for or in consideration of the use of his pub-
lic position to obtain a contract for any person
or business with any governmental or advisory
agency;
4. Use for his own economic benefit or that of
another party confidential information that he
has acquired by reason of his public position and
which is not available to the public;
5. Accept any money, loan, gift, favor, service, or
business or professional opportunity that reason-
ably tends to influence him in the performance
of his official duties. This subdivision shall not
apply to any political contribution actually used
for political campaign or constituent service pur-
poses and reported as required by Chapter 9.3
(§ 24.2 -945 et seq.) of Title 24.2;
6. Accept any business or professional opportunity
when he knows that there is a reasonable likeli-
hood that the opportunity is being afforded him
to influence him in the performance of his official
duties;
7. Accept any honoraria for any appearance,
speech, or article in which the officer or em-
ployee provides expertise or opinions related to
the performance of his official duties. The term
"honoraria" shall not include any payment for
or reimbursement to such person for his actual
travel, lodging, or subsistence expenses incurred
in connection with such appearance, speech, or
article or in the alternative a payment of money
or anything of value not in excess of the per diem
deduction allowable under § 162 of the Internal
Revenue Code, as amended from time to time.
The prohibition in this subdivision shall apply
only to the Governor, Lieutenant Governor,
Attorney General, Governor's Secretaries, and
heads of departments of state government;
mental or advisory agency shall: 8. Accept a gift from a person who has interests
1. Solicit or accept money or other thing of value that may be substantially affected by the perfor-
for services performed within the scope of his mance of the officer's or employee's official duties
66 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
under circumstances where the timing and na-
ture of the gift would cause a reasonable person
to question the officer's or employee's impartiality
in the matter affecting the donor. Violations of
this subdivision shall not be subject to criminal
law penalties; or
9. Accept gifts from sources on a basis so frequent
as to raise an appearance of the use of his public
office for private gain. Violations of this subdivi-
sion shall not be subject to criminal law penalties.
§ 2.2- 3103.1. Certain gifts prohibited
A. For purposes of this section:
"Intangible gift" means a thing of temporary value
or a thing that upon the happening of a certain event
or expiration of a given date loses its value. "Intan-
gible gift" includes entertainment, hospitality, a ticket,
admission, or pass, transportation, lodgings, and meals
that are reportable on Schedule E of the disclosure
form prescribed in § 2.2 -3117.
"Tangible gift" means a thing of value that does
not lose its value upon the happening of a certain event
or expiration of a given date. "Tangible gift" includes
currency, negotiable instruments, securities, stock
options, or other financial instruments that are report-
able on Schedule E of the disclosure form prescribed in
§ 2.2 -3117. "Tangible gift" does not include payments
or reimbursements received for any intangible gift.
B. An officer or employee of a local governmental
or advisory agency or candidate required to file the
disclosure form prescribed in § 2.2 -3117 (i) shall not
solicit, accept, or receive within any calendar year any
single tangible gift with a value in excess of $250 or a
combination of tangible gifts with an aggregate value
in excess of $250 from any person that he knows or has
reason to know is (a) a lobbyist registered pursuant to
Article 3 (§ 2.2 -418 et seq.) of Chapter 4; (b) a lobby-
ist's principal as defined in § 2.2 -419; or (c) a person,
organization, or business who is a party to or is seeking
to become a party to a contract with the local agency
of which he is an officer or an employee; (ii) shall report
any tangible gift with a value of $250 or less or any
intangible gift received from any person listed in clause
(i) on Schedule E of such disclosure form; and (iii) shall
report any payments for talks, meetings, and publica-
tions on Schedule D of such disclosure form.
C. An officer or employee of a state governmental
or advisory agency or candidate required to file the
disclosure form prescribed in § 2.2 -3117 (i) shall not
solicit, accept, or receive within any calendar year any
single tangible gift with a value in excess of $250 or a
combination of tangible gifts with an aggregate value
in excess of $250 from any person that he knows or has
reason to know is (a) a lobbyist registered pursuant to
Article 3 (§ 2.2 -418 et seq.) of Chapter 4; (b) a lobby-
ist's principal as defined in § 2.2 -419; or (c) a person,
organization, or business who is a party to or is seeking
to become a party to a contract with the Common-
wealth; (ii) shall report any tangible gift with a value
of $250 or less or any intangible gift received from
any person listed in clause (i) on Schedule E of such
disclosure form; and (iii) shall report any payments for
talks, meetings, and publications on Schedule D of such
disclosure form.
D. During the pendency of a civil action in any
state or federal court to which the Commonwealth is
a party, the Governor or the Attorney General or any
employee of the Governor or the Attorney General
who is subject to the provisions of this chapter shall not
solicit, accept, or receive any tangible gift from any
person that he knows or has reason to know is a person,
organization, or business who is a party to such civil
action. A person, organization, or business who is a
party to such civil action shall not knowingly give any
tangible gift to the Governor or the Attorney General
or any of their employees who are subject to the provi-
sions of this chapter.
E. The $250 limitation imposed in accordance with
this section shall be adjusted by the Council every five
years, as ofJanuary 1 of that year, in an amount equal
to the annual increases for that five -year period in the
United States Average Consumer Price Index for all
items, all urban consumers (CPI -U), as published by
the Bureau of Labor Statistics of the U.S. Department
of Labor, rounded to the nearest whole dollar.
F. For purposes of this section, "person, organiza-
tion, or business" includes individuals who are officers,
directors, or owners of or who have a controlling own-
ership interest in such organization or business.
§ 2.2 -3104. Prohibited conduct for certain
officers and employees of state government -
Omitted
§ 2.2- 3104.01. Prohibited conduct; bids
or proposals under the Virginia Public
Procurement Act, Public - Private Transportation
Act, and Public - Private Education Facilities and
Infrastructure Act - Omitted
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 67
§ 2.2- 3104.02. Prohibited conduct
for constitutional officers
In addition to the prohibitions contained in § 2.2-
3103, no constitutional officer shall, during the one
year after the termination of his public service, act in
a representative capacity on behalf of any person or
group, for compensation, on any matter before the
agency of which he was an officer.
The provisions of this section shall not apply to any
attorney for the Commonwealth.
Any person subject to the provisions of this section
may apply to the attorney for the Commonwealth for
the jurisdiction where such person was elected as pro-
vided in § 2.2 -3126, for an advisory opinion as to the
application of the restriction imposed by this section on
any post - public employment position or opportunity.
§ 2.2- 3104.1. Exclusion of certain awards
from scope of chapter
The provisions of this chapter shall not be con-
strued to prohibit or apply to the acceptance by (i) any
employee of a local government, or (ii) a teacher or
other employee of a local school board of an award or
payment in honor of meritorious or exceptional services
performed by the teacher or employee and made by
an organization exempt from federal income taxation
pursuant to the provisions of Section 501(c)(3) of the
Internal Revenue Code.
§ 2.2- 3104.2. Ordinance regulating
receipt of gifts
The governing body of any county, city, or town
may adopt an ordinance setting a monetary limit on
the acceptance of any gift by the officers, appointees or
employees of the county, city or town and requiring the
disclosure by such officers, appointees or employees of
the receipt of any gift.
Article 3. Prohibited Conduct
Relating to Contracts
§ 2.2 -3105. Application
This article proscribes certain conduct relating
to contracts by state and local government officers
and employees. The provisions of this article shall be
supplemented but not superseded by the provisions on
ethics in public contracting in Article 6 (§ 2.2 -4367 et
seq.) of Chapter 43 of this title.
§ 2.2 -3107. Prohibited contracts by members of
county boards of supervisors, city councils and
town councils
A. No person elected or appointed as a member of
the governing body of a county, city or town shall have
a personal interest in (i) any contract with his govern-
ing body, or (ii) any contract with any governmental
agency that is a component part of his local govern-
ment and which is subject to the ultimate control of the
governing body of which he is a member, or (iii) any
contract other than a contract of employment with any
other governmental agency if such person's governing
body appoints a majority of the members of the govern-
ing body of the second governmental agency.
B. The provisions of this section shall not apply to:
1. A member's personal interest in a contract of
employment provided (i) the officer or employee
was employed by the governmental agency prior
to July 1, 1983, in accordance with the provisions
of the former Conflict of Interests Act, Chapter
22 (§ 2.1 -347 et seq.) of Title 2.1 as it existed on
June 30, 1983, or (ii) the employment first began
prior to the member becoming a member of the
governing body;
2. Contracts for the sale by a governmental agency
of services or goods at uniform prices available to
the public; or
A contract awarded to a member of a governing
body as a result of competitive sealed bidding
where the governing body has established a
need for the same or substantially similar goods
through purchases prior to the election or ap-
pointment of the member to serve on the govern-
ing body. However, the member shall have no in-
volvement in the preparation of the specifications
for such contract, and the remaining members of
the governing body, by written resolution, shall
state that it is in the public interest for the mem-
ber to bid on such contract.
§ 2.2 -3109. Prohibited contracts by other
officers and employees of local governmental
agencies
A. No other officer or employee of any governmen-
tal agency of local government shall have a personal
interest in a contract with the agency of which he is
an officer or employee other than his own contract of
employment.
B. No officer or employee of any governmental
agency of local government shall have a personal inter-
68 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
est in a contract with any other governmental agency
that is a component of the government of his county,
city or town unless such contract is (i) awarded as a
result of competitive sealed bidding or competitive ne-
gotiation as set forth in § 2.2- 4302.1 or 2.2- 4302.2 or is
awarded as a result of a procedure embodying competi-
tive principles as authorized by subdivisions A 10 or
A 11 of § 2.2 -4343 or (ii) is awarded after a finding, in
writing, by the administrative head of the governmen-
tal agency that competitive bidding or negotiation is
contrary to the best interest of the public.
C. The provisions of this section shall not apply to:
1. An employee's personal interest in additional
contracts for goods or services, or contracts of
employment with his own governmental agency
that accrue to him because of a member of his
immediate family, provided the employee does
not exercise any control over (i) the employment
or the employment activities of the member of his
immediate family and (ii) the employee is not in a
position to influence those activities or the award
of the contract for goods or services;
2. An officer's or employee's personal interest in a
contract of employment with any other govern-
mental agency that is a component part of the
government of his county, city or town;
3. Contracts for the sale by a governmental agency
of services or goods at uniform prices available to
the general public;
4. Members of local governing bodies who are
subject to § 2.2 -3107;
5. Members of local school boards who are subject
to § 2.2 -3108; or
Any ownership or financial interest of members
of the governing body, administrators, and other
personnel serving in a public charter school in
renovating, lending, granting, or leasing pub-
lic charter school facilities, as the case may be,
provided such interest has been disclosed in the
public charter school application as required by
§ 22.1 - 212.8.
§ 2.2 -3110. Further exceptions
A. The provisions of Article 3 (§ 2.2 -3106 et seq.) of
this chapter shall not apply to:
The sale, lease or exchange of real property be-
tween an officer or employee and a governmental
agency, provided the officer or employee does not
participate in any way as such officer or employee
in such sale, lease or exchange, and this fact is set
forth as a matter of public record by the govern-
ing body of the governmental agency or by the
administrative head thereof;
2. The publication of official notices;
3. Contracts between the government or school
board of a town or city with a population of less
than 10 and an officer or employee of that
town or city government or school board when
the total of such contracts between the town or
city government or school board and the officer
or employee of that town or city government or
school board or a business controlled by him does
not exceed $10,000 per year or such amount ex-
ceeds $10,000 and is less than $25,000 but results
from contracts arising from awards made on a
sealed bid basis, and such officer or employee has
made disclosure as provided for in § 2.2 -3115;
4. An officer or employee whose sole personal inter-
est in a contract with the governmental agency
is by reason of income from the contracting firm
or governmental agency in excess of $10,000 per
year, provided the officer or employee or a mem-
ber of his immediate family does not participate
and has no authority to participate in the procure-
ment or letting of such contract on behalf of the
contracting firm and the officer or employee either
does not have authority to participate in the pro-
curement or letting of the contract on behalf of his
governmental agency or he disqualifies himself as
a matter of public record and does not participate
on behalf of his governmental agency in negotiat-
ing the contract or in approving the contract;
5. When the governmental agency is a public insti-
tution of higher education, an officer or employee
whose personal interest in a contract with the
institution is by reason of an ownership in the
contracting firm in excess of three percent of
the contracting firm's equity or such ownership
interest and income from the contracting firm
is in excess of $10,000 per year, provided that (i)
the officer or employee's ownership interest, or
ownership and income interest, and that of any
immediate family member in the contracting
firm is disclosed in writing to the president of the
institution, which writing certifies that the officer
or employee has not and will not participate in the
contract negotiations on behalf of the contract-
ing firm or the institution, (ii) the president of the
institution makes a written finding as a matter of
public record that the contract is in the best inter-
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 69
ests of the institution, (iii) the officer or employee
either does not have authority to participate in the
procurement or letting of the contract on behalf of
the institution or disqualifies himself as a matter
of public record, and (iv) does not participate on
behalf of the institution in negotiating the contract
or approving the contract;
6. Except when the governmental agency is the Vir-
ginia Retirement System, contracts between an
officer's or employee's governmental agency and
a public service corporation, financial institution,
or company furnishing public utilities in which
the officer or employee has a personal interest,
provided the officer or employee disqualifies
himself as a matter of public record and does not
participate on behalf of his governmental agency
in negotiating the contract or in approving the
contract;
7. Contracts for the purchase of goods or services
when the contract does not exceed $500;
8. Grants or other payment under any program
wherein uniform rates for, or the amounts paid
to, all qualified applicants are established solely
by the administering governmental agency; or
9. An officer or employee whose sole personal interest
in a contract with his own governmental agency
is by reason of his marriage to his spouse who is
employed by the same agency, if the spouse was
employed by such agency for five or more years
prior to marrying such officer or employee.
B. Neither the provisions of this chapter nor, unless
expressly provided otherwise, any amendments thereto
shall apply to those employment contracts or renewals
thereof or to any other contracts entered into prior to
August 1, 1987, which were in compliance with either
the former Virginia Conflict of Interests Act, Chapter
22 (§ 2.1 -347 et seq.) or the former Comprehensive
Conflict of Interests Act, Chapter 40 (§ 2.1 -599 et seq.)
of Title 2.1 at the time of their formation and thereaf-
ter. Those contracts shall continue to be governed by
the provisions of the appropriate prior Act. Notwith-
standing the provisions of subdivision (f) (4) of § 2.1 -348
of Tide 2.1 in effect prior to July 1, 1983, the employ-
ment by the same governmental agency of an officer
or employee and spouse or any other relative residing
in the same household shall not be deemed to create
a material financial interest except when one of such
persons is employed in a direct supervisory or adminis-
trative position, or both, with respect to such spouse or
other relative residing in his household and the annual
salary of such subordinate is $35,000 or more.
Article 4. Prohibited Conduct
Relating to Transactions
§ 2.2 -3111. Application
This article proscribes certain conduct by state and
local government officers and employees having a per-
sonal interest in a transaction.
§ 2.2 -3112. Prohibited conduct concerning
personal interest in a transaction; exceptions
A. Each officer and employee of any state or local
governmental or advisory agency who has a personal
interest in a transaction:
1. Shall disqualify himself from participating in the
transaction if (i) the transaction has application
solely to property or a business or governmental
agency in which he has a personal interest or a
business that has a parent - subsidiary or affiliated
business entity relationship with the business in
which he has a personal interest or (ii) he is un-
able to participate pursuant to subdivision 2, 3
or 4. Any disqualification under the provisions
of this subdivision shall be recorded in the public
records of the officer's or employee's governmen-
tal or advisory agency. The officer or employee
shall disclose his personal interest as required
by subsection E of § 2.2 -3114 or subsection F of
§ 2.2 -3115 and shall not vote or in any manner
act on behalf of his agency in the transaction.
The officer or employee shall be prohibited from
(i) attending any portion of a closed meeting
authorized by the Virginia Freedom of Informa-
tion Act (§ 2.2 -3700 et seq.) when the matter in
which he has a personal interest is discussed and
(ii) discussing the matter in which he has a per-
sonal interest with other governmental officers or
employees at any time;
2. May participate in the transaction if he is a
member of a business, profession, occupation,
or group of three or more persons the members
of which are affected by the transaction, and he
complies with the declaration requirements of
subsection F of § 2.2 -3114 or subsection H of §
2.2 -3115;
3. May participate in the transaction when a party
to the transaction is a client of his firm if he does
not personally represent or provide services to
such client and he complies with the declaration
requirements of subsection G of § 2.2 -3114 or
subsection I of § 2.2 -3115; or
70 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
4. May participate in the transaction if it affects
the public generally, even though his personal
interest, as a member of the public, may also be
affected by that transaction.
B. Disqualification under the provisions of this sec-
tion shall not prevent any employee having a personal
interest in a transaction in which his agency is involved
from representing himself or a member of his im-
mediate family in such transaction provided he does
not receive compensation for such representation and
provided he complies with the disqualification and
relevant disclosure requirements of this chapter.
C. Notwithstanding any other provision of law, if
disqualifications of officers or employees in accordance
with this section leave less than the number required
by law to act, the remaining member or members shall
constitute a quorum for the conduct of business and
have authority to act for the agency by majority vote,
unless a unanimous vote of all members is required
by law, in which case authority to act shall require
a unanimous vote of remaining members. Notwith-
standing any provisions of this chapter to the contrary,
members of a local governing body whose sole interest
in any proposed sale, contract of sale, exchange, lease
or conveyance is by virtue of their employment by a
business involved in a proposed sale, contract of sale,
exchange, lease or conveyance, and where such mem-
ber's or members' vote is essential to a constitutional
majority required pursuant to Article VII, Section 9
of the Constitution of Virginia and § 15.2 -2100, such
member or members of the local governing body may
vote and participate in the deliberations of the govern-
ing body concerning whether to approve, enter into or
execute such sale, contract of sale, exchange, lease or
conveyance. Official action taken under circumstances
that violate this section may be rescinded by the agency
on such terms as the interests of the agency and inno-
cent third parties require.
D. The provisions of subsection A shall not prevent
an officer or employee from participating in a transac-
tion merely because such officer or employee is a party
in a legal proceeding of a civil nature concerning such
transaction.
E. The provisions of subsection A shall not pre-
vent an employee from participating in a transaction
regarding textbooks or other educational material for
students at state institutions of higher education, when
those textbooks or materials have been authored or
otherwise created by the employee.
Article 5. Disclosure Statements
Required to Be Filed
§ 2.2 -3113. Application
This article requires disclosure of certain personal
and financial interests by state and local government
officers and employees.
§ 2.2 -3115. Disclosure by local government
officers and employees
<Section effective until July 1, 2015.>
A. The members of every governing body and
school board of each county and city and of towns with
populations in excess of 3,500 shall file, as a condition
to assuming office or employment, a disclosure state-
ment of their personal interests and other information
as is specified on the form set forth in § 2.2 -3117 and
thereafter shall file such a statement annually on or
before January 15.
The members of the governing body of any author-
ity established in any county or city, or part or combi-
nation thereof, and having the power to issue bonds or
expend funds in excess of $10,000 in any fiscal year,
shall file, as a condition to assuming office, a disclosure
statement of their personal interests and other informa-
tion as is specified on the form set forth in § 2.2 -3118
and thereafter shall file such a statement annually on
or before January 15, unless the governing body of the
jurisdiction that appoints the members requires that
the members file the form set forth in § 2.2 -3117.
Persons occupying such positions of trust appointed
by governing bodies and persons occupying such posi-
tions of employment with governing bodies as may be
designated to file by ordinance of the governing body
shall file, as a condition to assuming office or employ-
ment, a disclosure statement of their personal interests
and other information as is specified on the form set
forth in § 2.2 -3117 and thereafter shall file such a state-
ment annually on or before January 15.
Persons occupying such positions of trust appointed
by school boards and persons occupying such positions
of employment with school boards as may be designat-
ed to file by an adopted policy of the school board shall
file, as a condition to assuming office or employment,
a disclosure statement of their personal interests and
other information as is specified on the form set forth
in § 2.2 -3117 and thereafter shall file such a statement
annually on or before January 15.
B. Nonsalaried citizen members of local boards
commissions and councils as may be designated by the
2014 -2015 Virginia Freedom of Information Act I Conflict of ' Interests Act I Virginia Public Records Act 71
governing body shall file, as a condition to assuming
office, a disclosure form of their personal interests and
such other information as is specified on the form set
forth in § 2.2 -3118 and thereafter shall file such form
annually on or before January 15.
C. No person shall be mandated to file any disclo-
sure not otherwise required by this article.
D. The disclosure forms required by subsections A
and B shall be provided by the Secretary of the Com-
monwealth to the clerks of the governing bodies and
school boards not later than November 30 of each year,
and the clerks of the governing body and school board
shall distribute the forms to designated individuals no
later than December 10 of each year. Forms shall be
filed and maintained as public records for five years in
the office of the clerk of the respective governing body
or school board. Forms filed by members of governing
bodies of authorities shall be filed and maintained as
public records for five years in the office of the clerk of
the governing body of the county or city.
E. Candidates for membership in the governing
body or school board of any county, city or town with a
population of more than 3,500 persons shall file a dis-
closure statement of their personal interests as required
by § 24.2 -502.
F. Any officer or employee of local government
who has a personal interest in any transaction before
the governmental or advisory agency of which he is
an officer or employee and who is disqualified from
participating in that transaction pursuant to subdivi-
sion A 1 of § 2.2 -3112 or otherwise elects to disqualify
himself, shall forthwith make disclosure of the exis-
tence of his interest, including the full name and ad-
dress of the business and the address or parcel number
for the real estate if the interest involves a business or
real estate, and his disclosure shall be reflected in the
public records of the agency for five years in the office
of the administrative head of the officer's or employee's
governmental or advisory agency.
G. In addition to any disclosure required by
subsections A and B, in each county and city and in
towns with populations in excess of 3,500, members of
planning commissions, boards of zoning appeals, real
estate assessors, and all county, city and town manag-
ers or executive officers shall make annual disclosures
of all their interests in real estate located in the county,
city or town in which they are elected, appointed, or
employed. Such disclosure shall include any business
in which such persons own an interest, or from which
income is received, if the primary purpose of the busi-
ness is to own, develop or derive compensation through
the sale, exchange or development of real estate in the
county, city or town. Such disclosure shall be filed as
a condition to assuming office or employment, and
thereafter shall be filed annually with the clerk of the
governing body of such county, city or town on or
before January 15. Such disclosures shall be filed and
maintained as public records for five years. Forms for
the filing of such reports shall be prepared and distrib-
uted by the Secretary of the Commonwealth to the
clerk of each governing body.
H. An officer or employee of local government
who is required to declare his interest pursuant to
subdivision A 2 of § 2.2 -3112 shall declare his interest
by stating (i) the transaction involved, (ii) the nature of
the officer's or employee's personal interest affected by
the transaction, (iii) that he is a member of a business,
profession, occupation, or group the members of which
are affected by the transaction, and (iv) that he is able
to participate in the transaction fairly, objectively, and
in the public interest. The officer or employee shall
either make his declaration orally to be recorded in
written minutes of his agency or file a signed written
declaration with the clerk or administrative head of
his governmental or advisory agency, as appropriate,
who shall, in either case, retain and make available for
public inspection such declaration for a period of five
years from the date of recording or receipt. If reason-
able time is not available to comply with the provisions
of this subsection prior to participation in the transac-
tion, the officer or employee shall prepare and file the
required declaration by the end of the next business
day. The officer or employee shall also orally disclose
the existence of the interest during each meeting of the
governmental or advisory agency at which the transac-
tion is discussed and such disclosure shall be recorded
in the minutes of the meeting.
I. An officer or employee of local government who
is required to declare his interest pursuant to subdivi-
sion A 3 of § 2.2 -3112, shall declare his interest by stat-
ing (i) the transaction involved, (ii) that a party to the
transaction is a client of his firm, (iii) that he does not
personally represent or provide services to the client,
and (iv) that he is able to participate in the transaction
fairly, objectively, and in the public interest. The officer
or employee shall either make his declaration orally to
be recorded in written minutes for his agency or file a
signed written declaration with the clerk or administra-
tive head of his governmental or advisory agency, as
appropriate, who shall, in either case, retain and make
available for public inspection such declaration for a
period of five years from the date of recording or re-
ceipt. If reasonable time is not available to comply with
72 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
the provisions of this subsection prior to participation
in the transaction, the officer or employee shall prepare
and file the required declaration by the end of the next
business day.
§ 2.2 -3116. Disclosure by certain constitutional
officers
For the purposes of this chapter, holders of the
constitutional offices of treasurer, sheriff, attorney for
the Commonwealth, clerk of the circuit court and com-
missioner of the revenue of each county and city, shall
be deemed to be local officers and shall be required
to file the Statement of Economic Interests set forth in
§ 2.2 -3117. These officers shall file statements pursu-
ant to § 2.2 -3115 and candidates shall file statements as
required by § 24.2 -502. These officers shall be subject
to the prohibition on certain gifts set forth in subsection
B of § 2.2- 3103.1.
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§ 2.2 -3117. Disclosure form
Effective: July 1, 2014
The disclosure form to be used for filings required by subsections A and D of § 2.2 -3114 and subsections A and E of § 2.2-
3115 shall be substantially as follows:
STATEMENT OF ECONOMIC INTERESTS.
Name .................................................................................................................................................................... ...............................
Officeor position held or sought ............................................................................................................... ...............................
Address ...
Namesof members of immediate family ............................................................................................... ...............................
DEFINITIONS AND EXPLANATORY MATERIAL
"Business" means a corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, trust or
foundation, or any other individual or entity carrying on a business or profession, whether or not for profit.
"Close financial association" means an association in which the person filing shares significant financial involve-
ment with an individual and the filer would reasonably be expected to be aware of the individual's business activities
and would have access to the necessary records either directly or through the individual. "Close financial associa-
tion" does not mean an association based on (i) the receipt of retirement benefits or deferred compensation from a
business by which the person filing this statement is no longer employed, or (ii) the receipt of compensation for work
performed by the person filing as an independent contractor of a business that represents an entity before any state
governmental agency when the person filing has had no communications with the state governmental agency.
"Contingent liability" means a liability that is not presently fixed or determined, but may become fixed or deter-
mined in the future with the occurrence of some certain event.
"Gift" means any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having
monetary value. It includes services as well as gifts of transportation, lodgings and meals, whether provided in -kind,
by purchase of a ticket, payment in advance or reimbursement after the expense has been incurred. "Gift" does not
include (i) any offer of a ticket, coupon, or other admission or pass unless the ticket, coupon, admission, or pass is
used; (ii) honorary degrees ; (iii) any athletic, merit, or need -based scholarship or any other financial aid awarded
by a public or private school, institution of higher education, or other educational program pursuant to such school,
institution, or program's financial aid standards and procedures applicable to the general public; (iv) a campaign
contribution properly received and reported pursuant to Chapter 9.3 (§ 24.2 -945 et seq.) of Title 24.2; (v) any gift
related to the private profession or occupation of an officer or employee or of a member of his immediate family; or
(vi) gifts from relatives or personal friends. "Relative" means the donee's spouse, child, uncle, aunt, niece, or nephew;
a person to whom the donee is engaged to be married; the donee's or his spouse's parent, grandparent, grandchild,
brother, or sister; or the donee's brother's or sister's spouse. "Personal friend" does not include any person that the
filer knows or has reason to know is (a) a lobbyist registered pursuant to Article 3 (§ 2.2 -418 et seq.) of Chapter 4 of
Tide 2.2; (b) a lobbyist's principal as defined in § 2.2 -419; (c) for an officer or employee of a local governmental or ad-
visory agency, a person, organization, or business who is a party to or is seeking to become a party to a contract with
the local agency of which he is an officer or an employee; or (d) for an officer or employee of a state governmental or
advisory agency, a person, organization, or business who is a party to or is seeking to become a party to a contract
with the Commonwealth. "Person, organization, or business" includes individuals who are officers, directors, or
74 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
owners of or who have a controlling ownership interest in such organization or business.
"Immediate family" means (i) a spouse and (ii) any child who resides in the same household as the officer or em-
ployee and who is a dependent of the officer or employee.
TRUST. If you or your immediate family, separately or together, are the only beneficiaries of a trust, treat the
trust's assets as if you own them directly. If you or your immediate family has a proportional interest in a trust, treat
that proportion of the trust's assets as if you own them directly. For example, if you and your immediate family have
a one -third interest in a trust, complete your Statement as if you own one -third of each of the trust's assets. If you
or a member of your immediate family created a trust and can revoke it without the beneficiaries' consent, treat its
assets as if you own them directly.
REPORT TO THE BEST OF INFORMATION AND BELIEF. Information required on this Statement must
be provided on the basis of the best knowledge, information, and belief of the individual filing the Statement as of the
date of this report unless otherwise stated.
COMPLETE ITEMS 1 THROUGH 10. REFER TO SCHEDULES ONLY IF DIRECTED.
You may attach additional explanatory information.
1. Offices and Directorships.
Are you or a member of your immediate family a paid officer or paid director of a business?
EITHER check NO / / OR check YES / / and complete Schedule A.
2. Personal Liabilities.
Do you or a member of your immediate family owe more than $5,000 to any one creditor including contingent
liabilities? (Exclude debts to any government and loans secured by recorded liens on property at least equal in value
to the loan.)
EITHER check NO / / OR check YES / / and complete Schedule B.
3. Securities.
Do you or a member of your immediate family, directly or indirectly, separately or together, own securities val-
ued in excess of $5,000 invested in one business? Account for mutual funds, limited partnerships and trusts.
EITHER check NO / / OR check YES / / and complete Schedule C.
4. Payments for Talks, Meetings, and Publications.
During the past six months did you receive in your capacity as an officer or employee of your agency lodging,
transportation, money, or anything else of value with a combined value exceeding $200 (i) for a single talk, meeting,
or published work or (ii) for a meeting, conference, or event where your attendance at the meeting, conference, or
event was designed to (a) educate you on issues relevant to your duties as an officer or employee of your agency or (b)
enhance your knowledge and skills relative to your duties as an officer or employee of your agency?
EITHER check NO / / OR check YES / / and complete Schedule D.
5. Gifts.
During the past six months did a business, government, or individual other than a relative or personal friend (i)
furnish you or a member of your immediate family with any gift or entertainment at a single event, and the value
received exceeded $50 or (ii) furnish you or a member of your immediate family with gifts or entertainment in any
combination and the total value received exceeded $100, and for which you or the member of your immediate family
neither paid nor rendered services in exchange? Account for entertainment events only if the average value per per-
son attending the event exceeded $50. Account for all business entertainment (except if related to the private profes-
sion or occupation of you or the member of your immediate family who received such business entertainment) even if
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 75
unrelated to your official duties.
EITHER check NO / / OR check YES / / and complete Schedule E.
6. Salary and Wages.
List each employer that pays you or a member of your immediate family salary or wages in excess of $5,000 an-
nually. (Exclude state or local government or advisory agencies.)
If no reportable salary or wages, check here / /
7. Business Interests.
Do you or a member of your immediate family, separately or together, operate your own business, or own or
control an interest in excess of $5,000 in a business?
EITHER check NO / / OR check YES / / and complete Schedule E
8. Payments for Representation and Other Services.
8A. Did you represent, excluding activity defined as lobbying in § 2.2 -419, any businesses before any state govern-
mental agencies, excluding courts or judges, for which you received total compensation during the past six months
in excess of $1,000, excluding compensation for other services to such businesses and representation consisting solely
of the filing of mandatory papers and subsequent representation regarding the mandatory papers? (Officers and
employees of local governmental and advisory agencies do NOT need to answer this question or complete Schedule
G -1.)
EITHER check NO / / OR check YES / / and complete Schedule G -1.
8B. Subject to the same exceptions as in 8A, did persons with whom you have a close financial association (part-
ners, associates or others) represent, excluding activity defined as lobbying in § 2.2 -419, any businesses before any
state governmental agency for which total compensation was received during the past six months in excess of $1,000?
(Officers and employees of local governmental and advisory agencies do NOT need to answer this question or com-
plete Schedule G -2.)
EITHER check NO / / OR check YES / / and complete Schedule G -2.
8C. Did you or persons with whom you have a close financial association furnish services to businesses operating
in Virginia pursuant to an agreement between you and such businesses, or between persons with whom you have a
close financial association and such businesses for which total compensation in excess of $1,000 was received during
the past six months? Services reported under this provision shall not include services involving the representation of
businesses that are reported under item 8A or 8B.
EITHER check NO / / OR check YES / / and complete Schedule G -3.
9. Real Estate.
76 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
9A. State Officers and Employees.
Do you or a member of your immediate family hold an interest, including a partnership interest, valued at more
than $5,000 in real property (other than your principal residence) for which you have not already listed the full ad-
dress on Schedule F? Account for real estate held in trust.
EITHER check NO / / OR check YES / / and complete Schedule H -1.
9B. Local Officers and Employees.
Do you or a member of your immediate family hold an interest, including a partnership interest, or option, ease-
ment, or land contract, valued at more than $5,000 in real property (other than your principal residence) for which
you have not already listed the full address on Schedule F? Account for real estate held in trust.
EITHER check NO / / OR check YES / / and complete Schedule H -2.
10. Real Estate Contracts with Governmental Agencies.
Do you or a member of your immediate family hold an interest valued at more than $5,000 in real estate, includ-
ing a corporate, partnership, or trust interest, option, easement, or land contract, which real estate is the subject of a
contract, whether pending or completed within the past six months, with a governmental agency? If the real estate
contract provides for the leasing of the property to a governmental agency, do you or a member of your immediate
family hold an interest in the real estate valued at more than $1,000? Account for all such contracts whether or not
your interest is reported in Schedule F, H -1, or H -2. This requirement to disclose an interest in a lease does not apply
to an interest derived through an ownership interest in a business unless the ownership interest exceeds three percent
of the total equity of the business.
EITHER check NO / / OR check YES / / and complete Schedule I.
Statements of Economic Interests are open for public inspection.
AFFIRMATION BY ALL FILERS.
I swear or affirm that the foregoing information is full, true and correct to the best of my knowledge.
Signature ....................... ...............................
(Return only if needed to complete Statement.)
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SCHEDULES
to
STATEMENT OF ECONOMIC INTERESTS.
NAME
SCHEDULE A - OFFICES AND DIRECTORSHIPS.
Identify each business of which you or a member of your immediate family is a paid officer or paid director.
Name of Business Address of Business
Position Held and by whom
RETURN TO ITEM 2
SCHEDULE B - PERSONAL LIABILITIES.
Report personal liability by checking each category. Report only debts in excess of $5,000. Do not report debts to any
government. Do not report loans secured by recorded liens on property at least equal in value to the loan.
Report contingent liabilities below and indicate which debts are contingent.
1. My personal debts are as follows:
Check one
Check
appropriate $5,001 to More than
categories $50,000 $50,000
78 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
Banks
Savings institutions
Other loan or finance companies
Insurance companies
Stock, commodity or other brokerage companies
Other businesses:
(State principal business activity for each creditor and its name.)
Individual creditors:
(State principal business or occupation of each creditor and its name.)
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 79
2. The personal debts of the members of my immediate family are as follows:
Check one
Check
appropriate
categories
Banks
$5,001 to More than
$50,000 $50,000
. ............................... . ...............................
Savings institutions
Other loan or finance companies
Insurance companies
Stock, commodity or other brokerage companies . ............................... . ...............................
Other businesses:
(State principal business activity for each creditor and its name.) . ............................... . ...............................
Individual creditors:
(State principal business or occupation of each creditor and its name.) . ............................... . ...............................
............................................................................................................................................................................................................................. ............................... .
RETURN TO ITEM 3
80 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
SCHEDULE C - SECURITIES.
"Securities" INCLUDES stocks, bonds, mutual funds, limited "Securities" EXCLUDES certificates of deposit, money
partnerships, and commodity futures contracts. market funds, annuity contracts, and insurance policies.
Identify each business or Virginia governmental entity in which you or a member of your immediate family, directly or
indirectly, separately or together, own securities valued in excess of $5,000. Name each issuer and type of security individually.
Do not list U.S. Bonds or other government securities not issued by the Commonwealth of Virginia or its authorities, agencies,
or local governments. Do not list organizations that do not do business in this Commonwealth, but most major businesses
conduct business in Virginia. Account for securities held in trust.
If no reportable securities, check here / /.
Check one
Type of Security $5,001 $50,001 More
(stocks, bonds, mutual to to than
Name of Issuer funds, etc.) $50,000 $250,000 $250
RETURN TO ITEM 4
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SCHEDULE D - PAYMENTS FOR TALKS, MEETINGS, AND PUBLICATIONS.
List each source from which you received during the past six months in your capacity as an officer or employee of your agency
lodging, transportation, money, or any other thing of value with combined value exceeding $200 (i) for your presentation of a
single talk, participation in one meeting, or publication of a work or (ii) for your attendance at a meeting, conference, or event
where your attendance at the meeting, conference, or event was designed to (a) educate you on issues relevant to your duties as
an officer or employee of your agency or (b) enhance your knowledge and skills relative to your duties as an officer or employee
of your agency. Any lodging, transportation, money, or other thing of value received by an officer or employee that does not
satisfy the provisions of clause (i), (ii) (a), or (ii) (b) shall be listed as a gift on Schedule E.
List payments or reimbursements by an advisory or governmental agency only for meetings or travel outside the Common-
wealth.
List a payment even if you donated it to charity.
Do not list information about a payment if you returned it within 60 days or if you received it from an employer already
listed under Item 6 or from a source of income listed on Schedule F.
If no payment must be listed, check here / /.
Type of payment (e.g. honoraria, travel
Payer Approximate Value Circumstances reimbursement, etc.)
RETURN TO ITEM 5
82 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
SCHEDULE E- GIFTS.
List each business, governmental entity, or individual that, during the past six months, (i) furnished you or a member of your
immediate family with any gift or entertainment at a single event, and the value received exceeded $50 or (ii) furnished you
or a member of your immediate family with gifts or entertainment in any combination and the total value received exceeded
$100, and for which you or the member of your immediate family neither paid nor rendered services in exchange. List each such
gift or event. Do not list entertainment events unless the average value per person attending the event exceeded $50. Do not
list business entertainment related to the private profession or occupation of you or the member of your immediate family who
received such business entertainment. Do not list gifts or other things of value given by a relative or personal friend for reasons
clearly unrelated to your public position. Do not list campaign contributions publicly reported as required by Chapter 9.3 (§
24.2 -945 et seq.) of Title 24.2 of the Code of Virginia.
Name of Name of Business, Organization, or City or County and State Exact Gift or Event Approximate Value
Recipient Individual
RETURN TO ITEM 6
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SCHEDULE F - BUSINESS INTERESTS.
Complete this Schedule for each self -owned or family -owned business (including rental property, a farm, or consulting work),
partnership, or corporation in which you or a member of your immediate family, separately or together, own an interest having
a value in excess of $5,000.
If the enterprise is owned or operated under a trade, partnership, or corporate name, list that name; otherwise, merely explain
the nature of the enterprise. If rental property is owned or operated under a trade, partnership, or corporate name, list the name
only; otherwise, give the address of each property. Account for business interests held in trust.
Name of Business,
Gross Income
Corporation,
Partnership City or Nature of Enterprise
$50,001 More
Farm; Address of County (farming, law, rental
$50,000 to than
Rental Property and State property, etc.)
or less $250,000 $250,000
RETURN TO ITEM 8
84 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
SCHEDULE G -1 - PAYMENTS FOR REPRESENTATION BY YOU.
List the businesses you represented, excluding activity defined as lobbying in § 2.2 -419, before any state governmental agency,
excluding any court or judge, for which you received total compensation during the past six months in excess of $1,000, exclud-
ing compensation for other services to such businesses and representation consisting solely of the filing of mandatory papers and
subsequent representation regarding the mandatory papers filed by you.
Identify each business, the nature of the representation and the amount received by dollar category from each such business.
You may state the type, rather than name, of the business if you are required by law not to reveal the name of the business repre-
sented by you.
Only STATE officers and employees should complete this Schedule.
Amount Received
Name of Purpose of Name of $1,001 to $10,001 to $50,001 to $100,001 to
Business Type of Business Representation Agency $10,000 $50,000 $100,000 $250,000 $250,001 and over
If you have received $250,001 or more from a single business within the reporting period, indicate the amount received, rounded
to the nearest $10,000.
Amount Received: . ......................
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SCHEDULE G -2 - PAYMENTS FOR REPRESENTATION BY ASSOCIATES.
List the businesses that have been represented, excluding activity defined as lobbying in § 2.2 -419, before any state govern-
mental agency, excluding any court or judge, by persons who are your partners, associates or others with whom you have a
close financial association and who received total compensation in excess of $1,000 for such representation during the past six
months, excluding representation consisting solely of the filing of mandatory papers and subsequent representation regarding
the mandatory papers filed by your partners, associates or others with whom you have a close financial association.
Identify such businesses by type and also name the state governmental agencies before which such person appeared on behalf
of such businesses.
Only STATE officers and employees should complete this Schedule.
Type of business Name of state governmental agency
SCHEDULE G -3 - PAYMENTS FOR OTHER SERVICES GENERALLY.
Indicate below types of businesses that operate in Virginia to which services were furnished by you or persons with whom you
have a close financial association pursuant to an agreement between you and such businesses, or between persons with whom
you have a close financial association and such businesses and for which total compensation in excess of $1,000 was received
during the past six months. Services reported in this Schedule shall not include services involving the representation of busi-
nesses that are reported in Schedule G -1 or G -2.
Identify opposite each category of businesses listed below (i) the type of business, (ii) the type of service rendered and (iii) the
value by dollar category of the compensation received for all businesses falling within each category.
86 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
Value of Compensation
Electric utilities
Gas utilities
Telephone utilities
Water utilities
Cable television companies
Interstate transportation companies
Intrastate transportation companies
.Oil or gas retail companies
Banks
Savings institutions
Loan or finance companies
Manufacturing companies (state type of
product, e.g., textile, furniture, etc.)
Mining companies
Life insurance companies
Casualty insurance companies
Other insurance companies
Retail companies
Check if Type of
servuces were services $1,001 to $10,001 to
rendered rendered $10,000 $50,000
$50,001 to $100,001 to $250,001 and
$100,000 $250,000 over
2014 -2015 Virginia Freedom of Information Act I Conflict of ' Interests Act I Virginia Public Records Act 87
Beer, wine or liquor companies or distributors.
Trade associations
Professional associations
...............................
Associations of public employees or officials
Counties, cities or towns
Labor organizations
Other
RETURN TO ITEM 9
SCHEDULE H -1 - REAL ESTATE - STATE OFFICERS AND EMPLOYEE
List real estate other than your principal residence in which you or a member of your immediate family holds an interest,
including a partnership interest, option, easement, or land contract, valued at more than $5,000. Each parcel shall be listed
individually.
Describe the type of real estate you own If the real estate is owned or recorded
List each location (state, and county or in each location (business, recreational, in a name other than your own, list that
city) where you own real estate. apartment, commercial, open land, etc.). name.
88 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
SCHEDULE H -2 - REAL ESTATE - LOCAL OFFICERS AND EMPLOYEES.
List real estate other than your principal residence in which you or a member of your immediate family holds an interest,
including a partnership interest or option, easement, or land contract, valued at more than $5,000. Each parcel shall be listed
individually. Also list the names of any co- owners of such property, if applicable.
Describe the type of real estate you own
List each location (state, and county or in each location (business, recreational, If the real estate is owned or recorded in a List the names of any co- owners, if
city) where you own real estate. apartment, commercial, open land, etc.). name other than your own, list that name. applicable.
SCHEDULE I - -REAL ESTATE CONTRACTS WITH GOVERNMENTAL AGENCIES.
List all contracts, whether pending or completed within the past six months, with a governmental agency for the sale or ex-
change of real estate in which you or a member of your immediate family holds an interest, including a corporate, partnership
or trust interest, option, easement, or land contract, valued at more than $10,000. List all contracts with a governmental agency
for the lease of real estate in which you or a member of your immediate family holds such an interest valued at more than
$1,000. This requirement to disclose an interest in a lease does not apply to an interest derived through an ownership interest in
a business unless the ownership interest exceeds three percent of the total equity of the business.
State officers and employees report contracts with state agencies.
Local officers and employees report contracts with local agencies.
List your real estate interest and the
person or entity, including the type of
entity, which is parry to the contract.
List each governmental agency which is
State the annual income from the contract,
Describe any management role and the
a parry to the contract and indicate the
and the amount, if any, of income you or
percentage ownership interest you or
county or city where the real estate is
any immediate family member derives
your immediate family member has in
located.
annually from the contract.
the real estate or entity.
2014 -2015 Virginia Freedom of Information Act I Conflict of ' Interests Act I Virginia Public Records Act 89
§ 2.2 -3118. Disclosure form; certain citizen members
Effective: July 1, 2014
A. The financial disclosure form to be used for filings required pursuant to subsection B of § 2.2 -3114 and subsection B of
§ 2.2 -3115 shall be filed in accordance with the provisions of § 30 -356. The financial disclosure form shall be substantially as
follows:
DEFINITIONS AND EXPLANATORY MATERIAL.
"Business" means a corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, trust or foundation, or
any other individual or entity carrying on a business or profession, whether or not for profit.
"Close financial association" means an association in which the person filing shares significant financial involvement with an
individual and the filer would reasonably be expected to be aware of the individual's business activities and would have access
to the necessary records either directly or through the individual. "Close financial association' does not mean an association
based on (i) the receipt of retirement benefits or deferred compensation from a business by which the person filing this state-
ment is no longer employed, or (ii) the receipt of compensation for work performed by the person filing as an independent
contractor of a business that represents an entity before any state governmental agency when the person filing has no communi-
cations with the state governmental agency.
"Contingent liability" means a liability that is not presently fixed or determined, but may become fixed or determined in the
future with the occurrence of some certain event.
"Immediate family" means (i) a spouse and (ii) any child who resides in the same household as the filer and who is a dependent
of the filer.
"Personal interest" means, for the purposes of this form only, a personal and financial benefit or liability accruing to a filer or
a member of his immediate family. Such interest shall exist by reason of (i) ownership in real or personal property, tangible or
intangible; (ii) ownership in abusiness; (iii) income from abusiness; or (iv) personal liability on behalf of abusiness; however,
unless the ownership interest in a business exceeds three percent of the total equity of the business, or the liability on behalf of
a business exceeds three percent of the total assets of the business, or the annual income, and /or property or use of such prop-
erty, from the business exceeds $10,000 or may reasonably be anticipated to exceed $10,000, such interest shall not constitute a
"personal interest "
Name................................................................................................................................................................................................. ...............................
Office or position held or to be held
Address............................................................................................................................................................................................. ...............................
90 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
I. FINANCIAL INTERESTS
My personal interests and those of my immediate family are as follows:
Include all forms of personal interests held at the time of filing: real estate, stocks, bonds, equity interests in propri-
etorships and partnerships. You may exclude:
1. Deposits and interest bearing accounts in banks, savings institutions and other institutions accepting such deposits
or accounts;
2. Interests in any business, other than a news medium, representing less than three percent of the total equity value
of the business;
3. Liability on behalf of any business representing less than three percent of the total assets of such business; and
4. Income (other than from salary) less than $10,000 annually from any business. You need not state the value of
any interest. You must state the name or principal business activity of each business in which you have a personal
interest.
A. My personal interests are:
1. Residence, address, or, if no address, location ......... ...............................
2. Other real estate, address, or, if no address, location ..............................
3. Name or principal business activity of each business in which stock, bond or equity interest is held ...........................
B. The personal interests of my immediate family are:
1. Real estate, address or, if no address, location ........ ...............................
2. Name or principal business activity of each business in which stock, bond or equity interest is held ...........................
................
II. OFFICES, DIRECTORSHIPS AND SALARIED EMPLOYMENTS
The paid offices, paid directorships and salaried employments which I hold or which members of my immediate family hold and
the businesses from which I or members of my immediate family receive retirement benefits are as follows:
(You need not state any dollar amounts.)
A. My paid offices, paid directorships and salaried employments are:
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 91
B. The paid offices, paid directorships and salaried employments of members of my immediate family are:
Position held
III. BUSINESSES TO WHICH SERVICES WERE FURNISHED
Name of business
A. The businesses I have represented, excluding activity defined as lobbying in § 2.2 -419, before any state governmental
agency, excluding any court or judge, for which I have received total compensation in excess of $1,000 during the preceding
year, excluding compensation for other services to such businesses and representation consisting solely of the filing of manda-
tory papers, are as follows:
Identify businesses by name and name the state governmental agencies before which you appeared on behalf of suchbusi-
nesses.
Name of business Name of governmental agency
B. The businesses that, to my knowledge, have been represented, excluding activity defined as lobbying in § 2.2 -419, before any
state governmental agency, excluding any court or judge, by persons with whom I have a close financial association and who
received total compensation in excess of $1,000 during the preceding year, excluding compensation for other services to such
businesses and representation consisting solely of the filing of mandatory papers, are as follows:
Identify businesses by type and name the state governmental agencies before which such person appeared on behalf of such
businesses.
................................................................................................................................................................................................. ............................... .
Type of business Name of state governmental agency
............................................................................. ............................... ................................................................................. ...............................
92 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
C. All other businesses listed below that operate in Virginia to which services were furnished pursuant to an agreement between
you and such businesses and for which total compensation in excess of $1, 000 was received during the preceding year:
Check each category of business to which services were furnished.
Electric utilities .. ...............................
Gas utilities .. ...............................
Telephone utilities .. ...............................
Water utilities .. ...............................
Cable television companies .. ...............................
Intrastate transportation companies .. ...............................
Interstate transportation companies .. ...............................
Oil or gas retail companies .. ...............................
Banks ...............................
Savings institutions .. ...............................
Loan or finance companies .. ...............................
Manufacturing companies (state type of product, e.g., textile,
furniture, etc.) .. ...............................
Mining companies .. ...............................
Life insurance companies .. ...............................
2014 -2015 Virginia Freedom of Information Act I Conflict of ' Interests Act I Virginia Public Records Act 93
Casualty insurance companies """"""""""""""""'
Other insurance companies .. ...............................
Retail companies .. ...............................
Beer, wine or liquor companies or distributors .. ...............................
Trade associations .. ...............................
Professional associations
Associations of public employees or officials
Counties, cities or towns
Labor organizations
IV. COMPENSATION FOR EXPENSES
The persons, associations, or other sources other than my governmental agency from which I or a member of my immediate
family received remuneration in excess of $200 during the preceding year, in cash or otherwise, as honorariums or payment of
expenses in connection with my attendance at any meeting or other function to which I was invited in my official capacity are
as follows:
.............................................................................................................................................................................................. ............................... .
Name of Source Description of occasion Amount of remuneration for each occasion
B. The provisions of Part III A and B of the disclosure form prescribed by this section shall not be applicable to officers and
employees of local governmental and local advisory agencies.
C. Except for real estate located within the county, city or town in which the officer or employee serves or a county, city or town
contiguous to the county, city or town in which the officer or employee serves, officers and employees of local governmental or
advisory agencies shall not be required to disclose under Part I of the form any other interests in real estate.
94 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
§ 2.2- 3118.1. Special provisions for individuals
serving in or seeking multiple positions or
offices; reappointees
A. The filing of a single current statement of eco-
nomic interests by a state officer or employee required
to file the form prescribed in § 2.2 -3117 shall suffice for
the purposes of this chapter as filing for all state posi-
tions or offices held or sought by such individual during
a single reporting period. The filing of a single current
financial disclosure statement by a state officer or em-
ployee required to file the form prescribed in § 2.2 -3118
shall suffice for the purposes of this chapter as filing for
all state positions or offices held or sought by such in-
dividual and requiring the filing of the § 2.2 -3118 form
during a single reporting period.
B. Any individual who has met the requirement for
periodically filing a statement provided in § 2.2 -3117
or 2.2 -3118 shall not be required to file an additional
statement upon such individual's reappointment to the
same office or position for which he is required to file,
provided such reappointment occurs within six months
after filing a statement pursuant to § 2.2 -3117 and
within 12 months after filing a statement pursuant to
§ 2.2 -3118.
Article 6. School Boards and
Employees of School Boards
§ 2.2 -3119. Additional provisions applicable to
school boards and employees of school boards;
exceptions
A. Notwithstanding any other provision of this
chapter, it shall be unlawful for the school board of any
county or city or of any town constituting a separate
school division to employ or pay any teacher or other
school board employee from the public funds, fed-
eral, state or local, or for a division superintendent to
recommend to the school board the employment of any
teacher or other employee, if the teacher or other em-
ployee is the father, mother, brother, sister, spouse, son,
daughter, son -in -law; daughter -in -law, sister -in -law or
brother -in -law of the superintendent, or of any member
of the school board.
This section shall apply to any person employed
by any school board in the operation of the public free
school system, adult education programs or any other
program maintained and operated by a local county,
city or town school board.
B. This section shall not be construed to prohibit
the employment, promotion, or transfer within a school
division of any person within a relationship described
in subsection A when such person:
1. Has been employed pursuant to a written
contract with a school board or employed as a
substitute teacher or teacher's aide by a school
board prior to the taking of office of any mem-
ber of such board or division superintendent of
schools; or
2. Has been employed pursuant to a written con-
tract with a school board or employed as a sub-
stitute teacher or teacher's aide by a school board
prior to the inception of such relationship; or
3. Was employed by a school board at any time
prior to June 10, 1994, and had been employed
at any time as a teacher or other employee of any
Virginia school board prior to the taking of office
of any member of such school board or division
superintendent of schools.
C. A person employed as a substitute teacher may
not be employed to any greater extent than he was
employed by the school board in the last full school
year prior to the taking of office of such board member
or division superintendent or to the inception of such
relationship. The exceptions in subdivisions B 1, B 2,
and B 3 shall apply only if the prior employment has
been in the same school divisions where the employee
and the superintendent or school board member now
seek to serve simultaneously.
D. If any member of the school board or any divi-
sion superintendent knowingly violates these provisions,
he shall be personally liable to refund to the local trea-
sury any amounts paid in violation of this law, and the
funds shall be recovered from the individual by action
or suit in the name of the Commonwealth on the peti-
tion of the attorney for the Commonwealth. Recovered
funds shall be paid into the local treasury for the use of
the public schools.
E. The provisions of this section shall not apply to
employment by a school district located in Planning
Districts 3, 11, 12, and 13 of the father, mother, brother,
sister, spouse, son, daughter, son -in -law, daughter -in-
law, sister -in -law, or brother -in -law of any member of
the school board provided (i) the member certifies that
he had no involvement with the hiring decision and (ii)
the superintendent certifies to the remaining members
of the governing body in writing that the employment
is based upon merit and fitness and the competitive
rating of the qualifications of the individual and that
no member of the board had any involvement with the
hiring decision.
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 95
Article 7. Penalties and Remedies
§ 2.2 -3120. Knowing violation of chapter a
misdemeanor
Any person who knowingly violates any of the
provisions of Articles 2 through 6 ( §§ 2.2 -3102 through
2.2 -3119) of this chapter shall be guilty of a Class 1 mis-
demeanor, except that any member of a local governing
body who knowingly violates subsection A of § 2.2 -3112
or subsection D or F of § 2.2 -3115 shall be guilty of a Class
3 misdemeanor. A knowing violation under this section is
one in which the person engages in conduct, performs an
act or refuses to perform an act when he knows that the
conduct is prohibited or required by this chapter.
§ 2.2 -3121. Advisory opinions
A. A state officer or employee shall not be prosecut-
ed for a knowing violation of this chapter if the alleged
violation resulted from his good faith reliance on a
written opinion of the Attorney General or the Virginia
Conflict of Interest and Ethics Advisory Council made
in response to his written request for such opinion and
the opinion was made after a full disclosure of the facts.
B. A local officer or employee shall not be prosecut-
ed for a knowing violation of this chapter if the alleged
violation resulted from his good faith reliance on a
written opinion of the attorney for the Commonwealth
or the Council made in response to his written request
for such opinion and the opinion was made after a full
disclosure of the facts. The written opinion shall be a
public record and shall be released upon request.
C. If any officer or employee serving at the local
level of government is charged with a knowing viola-
tion of this chapter, and the alleged violation resulted
from his reliance upon a written opinion of his city,
county or town attorney, made after a full disclosure of
the facts, that such action was not in violation of this
chapter, then the officer or employee shall have the
right to introduce a copy of the opinion at his trial as
evidence that he did not knowingly violate this chapter.
§ 2.2 -3122. Knowing violation of chapter
constitutes malfeasance in office or
employment
Any person who knowingly violates any of the
provisions of this chapter shall be guilty of malfeasance
in office or employment. Upon conviction thereof, the
judge or jury trying the case, in addition to any other
fine or penalty provided by law, may order the forfei-
ture of such office or employment.
§ 2.2 -3123. Invalidation of contract;
recision of sales
A. Any contract made in violation of § 2.2 -3103 or
§§ 2.2 -3106 through 2.2 -3109 may be declared void
and may be rescinded by the governing body of the
contracting or selling governmental agency within five
years of the date of such contract. In cases in which the
contract is invalidated, the contractor shall retain or
receive only the reasonable value, with no increment
for profit or commission, of the property or services
furnished prior to the date of receiving notice that the
contract has been voided. In cases of recision of a con-
tract of sale, any refund or restitution shall be made to
the contracting or selling governmental agency.
B. Any purchase by an officer or employee made
in violation of § 2.2 -3103 or §§ 2.2 -3106 through 2.2-
3109 may be rescinded by the governing body of the
contracting or selling governmental agency within five
years of the date of such purchase.
2.2 -3124. Civil penalty from violation
of this chapter
In addition to any other fine or penalty provided by
law, an officer or employee who knowingly violates any
provision of §§ 2.2 -3103 through 2.2 -3112 shall be sub-
ject to a civil penalty in an amount equal to the amount
of money or thing of value received as a result of such
violation. If the thing of value received by the officer or
employee in violation of §§ 2.2 -3103 through 2.2 -3112
increases in value between the time of the violation and
the time of discovery of the violation, the greater value
shall determine the amount of the civil penalty. Fur-
ther, all money or other things of value received as a
result of such violation shall be forfeited in accordance
with the provisions of § 19.2- 386.33.
§ 2.2 -3125. Limitation of actions
The statute of limitations for the criminal prosecu-
tion of a person for violation of any provision of this
chapter shall be one year from the time the Attorney
General, if the violation is by a state officer or em-
ployee, or the attorney for the Commonwealth, if the
violation is by a local officer or employee, has actual
knowledge of the violation or five years from the date of
the violation, whichever event occurs first. Any pros-
ecution for malfeasance in office shall be governed by
the statute of limitations provided by law.
96 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
§ 2.2 -3126. Enforcement
A. The provisions of this chapter relating to an offi-
cer or employee serving at the state level of government
shall be enforced by the Attorney General.
In addition to any other powers and duties pre-
scribed by law, the Attorney General shall have the
following powers and duties within the area for which
he is responsible under this section:
1. He shall advise the agencies of state government
and officers and employees serving at the state
level of government on appropriate procedures
for complying with the requirements of this chap-
ter. He may review any disclosure statements,
without notice to the affected person, for the pur-
pose of determining satisfactory compliance, and
shall investigate matters that come to his atten-
tion reflecting possible violations of the provisions
of this chapter by officers and employees serving
at the state level of government;
2. If he determines that there is a reasonable basis
to conclude that any officer or employee serving
at the state level of government has knowingly
violated any provision of this chapter, he shall
designate an attorney for the Commonwealth
who shall have complete and independent discre-
tion in the prosecution of such officer or em-
ployee;
3. He shall render advisory opinions to any state of-
ficer or employee who seeks advice as to whether
the facts in a particular case would constitute
a violation of the provisions of this chapter.
He shall determine which opinions or portions
thereof are of general interest to the public and
may, from time to time, be published.
Irrespective of whether an opinion of the Attorney
General has been requested and rendered, any person
has the right to seek a declaratory judgment or other
judicial relief as provided by law.
B. The provisions of this chapter relating to an
officer or employee serving at the local level of govern-
ment shall be enforced by the attorney for the Com-
monwealth within the political subdivision for which he
is elected.
Each attorney for the Commonwealth shall be
responsible for prosecuting violations by an officer or
employee serving at the local level of government and,
if the Attorney General designates such attorney for the
Commonwealth, violations by an officer or employee
serving at the state level of government. In the event
the violation by an officer or employee serving at the
local level of government involves more than one lo-
cal jurisdiction, the Attorney General shall designate
which of the attorneys for the Commonwealth of the
involved local jurisdictions shall enforce the provisions
of this chapter with regard to such violation.
Each attorney for the Commonwealth shall estab-
lish an appropriate written procedure for implementing
the disclosure requirements of local officers and em-
ployees of his county, city or town, and for other politi-
cal subdivisions, whose principal offices are located
within the jurisdiction served by such attorney for the
Commonwealth. The attorney for the Commonwealth
shall provide a copy of this act to all local officers and
employees in the jurisdiction served by such attorney
who are required to file a disclosure statement pursuant
to Article 5 (§ 2.2 -3113 et seq.) of this chapter. Failure to
receive a copy of the act shall not be a defense to such
officers and employees if they are prosecuted for viola-
tions of the act.
Each attorney for the Commonwealth shall render
advisory opinions as to whether the facts in a particular
case would constitute a violation of the provisions of
this chapter to the governing body and any local officer
or employee in his jurisdiction and to political subdi-
visions other than a county, city or town, including
regional political subdivisions whose principal offices
are located within the jurisdiction served by such at-
torney for the Commonwealth. If the advisory opinion
is written, then such written opinion shall be a public
record and shall be released upon request. In case the
opinion given by the attorney for the Commonwealth
indicates that the facts would constitute a violation, the
officer or employee affected thereby may request that
the Attorney General review the opinion. A conflicting
opinion by the Attorney General shall act to revoke the
opinion of the attorney for the Commonwealth. The
Attorney General shall determine which of his review-
ing opinions or portions thereof are of general interest
to the public and may, from time to time, be published.
Irrespective of whether an opinion of the attorney
for the Commonwealth or the Attorney General has
been requested and rendered, any person has the right
to seek a declaratory judgment or other judicial relief as
provided by law.
§ 2.2 -3127. Venue
Any prosecution for a violation involving an of-
ficer serving at the state level of government shall be
brought in the Circuit Court of the City of Richmond.
Any prosecution for a violation involving an employee
serving at the state level of government shall be within
2014 -2015 Virginia Freedom of Information Act I Conflict of ' Interests Act I Virginia Public Records Act 97
the jurisdiction in which the employee has his principal
place of state employment.
Any proceeding provided in this chapter shall be
brought in a court of competent jurisdiction within the
county or city in which the violation occurs if the viola-
tion involves an officer or employee serving at the local
level of government.
Article 8. Orientation for State
Filers - Omitted
§ 2.2 -3128. Semiannual orientation course
§ 2.2 -3129. Records of attendance
§ 2.2 -3130. Attendance requirements
§ 2.2 -3131. Exemptions
98 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
Virginia Public Records Act
Requirements:
By Jeffrey S. Gore and Roger C. Wiley
Hefty & Wiley PC
Local government officials generally are not en-
thusiastic about the Virginia Public Records Act (the
"Act "). Many elected officials are only vaguely aware
that the Act exists. Managers and agency heads are
likely to view it as just another nuisance requirement
imposed by the state or even as an example of that
most despised species - -an unfunded mandate. Other
local officials may be puzzled about how to handle the
masses of paper that clutter their offices or the elec-
tronic messages and documents that fill up their email
inboxes and hard drives.
All of those reactions are predictable and sometimes
they may seem valid. Certainly the state is not send-
ing localities money to spend on records management.
Most of the Act's requirements, however, merely reflect
what would be viewed as good business and manage-
ment practice. No organization can really operate ef-
ficiently if it can't determine what it did last month, last
year, or 10 years ago.
Dependence on one's own memory of past events
can be very risky, and although most organizations
have a few long- serving individuals who provide "in-
stitutional memory," all of them move on eventually.
Keeping records and maintaining them in an accessible
manner is vital not only for those who come along later,
but for our own daily performance.
Having an effective system for keeping the records
that are important and getting rid of those that are
no longer needed, to make room for new ones, is just
common sense. Still, it is easy to neglect records man-
agement. Getting today's work done can always claim
priority over organizing and storing records of yester-
day's work. Some of us are instinctively good at file
maintenance while others need to be prodded.
The more positive way to view the Public Records
Act is that, by imposing some legal requirements, it
forces us to think about records management and as-
sign it as a specific task to someone in our organization.
The Act's legal mandate also gives officials a justifica-
tion for budgeting and spending the resources neces-
sary to make a records management system function
properly.
We hope that this handbook will give local govern-
ment officials a basic understanding of the Virginia
Public Records Act and how to comply with it. In its
opening section you will find a discussion of the Act's
basic requirements, presented in question and answer
format, followed by several appendices that contain
additional detailed information, as shown in the Table
of Contents.
What is the purpose of the Virginia Public
Records Act?
Virginia Public Records Act (the "Act ") is found
in Chapter 7 of Title 42.1 of the Code of Virginia,
the Title dealing with "Libraries." It is located in that
part of the Code because the Library of Virginia is
the state agency designated to administer the Act and
issue regulations to implement it. The Act establishes
the basic rules and authorizes the Library to issue more
detailed regulations specifying how state and local
public agencies, officials and employees handle "public
records." This includes determining exactly what con-
stitutes a public record, how and long to maintain that
public record, and when and how to eventually dispose
of it all of which the Act describes as the "lifecycle" of
the public record.
What is a public record?
As defined in the Act, a public record is any record-
ed information possessed by a public agency, public
official or public employee that documents a transac-
tion or activity by or with any such agency, official or
employee. The recorded information is a public record
if it is produced, collected, received or retained in con-
nection with the transaction of public business, regard-
less of its physical form. The medium (paper, film,
magnetic or electronic file, etc.) on which the informa-
tion is recorded has no bearing on whether it is a public
record.
2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act 99
What local agencies officials are covered by
the Act's requirements? Does it also apply to
elected constitutional officers?
The Act applies to all departments, divisions,
boards, commissions and authorities of a locality or in
which a locality participates to conduct public business.
Officers and employees of these various local agen-
cies have a responsibility to comply the Act's require-
ments for the records they create or receive.
Elected city and county constitutional officers and the
staffs and records of their offices are specifically included
in the definitions of covered officials and agencies.
What about members of a local governing
body?
Members of a city or town council, or county board
of supervisors, regardless of their terms or compensa-
tion, are officers of the locality and are thus subject to
the Act's requirement. In the past, many of them have
not treated their individual correspondence and other
records about public business, kept at home or in their
private places of employment, as public records.
Legally, however, the Act does apply to these
records. In recent years, as requests for disclosure of
members' individual records under the Virginia Free-
dom of Information Act have become more common,
clerks of governing bodies and local government man-
agers and attorneys have begun assisting their govern-
ing bodies in establishing better systems to maintain
these records and comply with the Act.
What are the primary responsibilities of local
governments under the Act?
• Tell governing body members to read
the Act
Every person elected, re- elected, appointed, or
reappointed to the governing body of any local-
ity or other local public body subject to the Act
must be provided a copy of the Act within two
weeks of election, re- election, appointment or
reappointment. The Act assigns responsibility for
doing this to the public body's chief administra-
tor, agency head or legal counsel, but in practice
the duty may be delegated to someone else, such
as the clerk of the public body. The Act also
requires members of the public body to read and
become familiar with the Act after they receive
it. Following this explanation is a copy of the Act
with amendments through July 1, 2014, to be
used for this purpose.
• Designate a local public records officer
Every locality is required to designate at least
one records officer to serve as a liaison to the
Library of Virginia, and to implement and
oversee a records management program, and
coordinate the disposition, including destruction,
of obsolete records. Local records officers can be
designated either by the governing body of the
locality or agency or by its chief administrative
officer. The locality must give the Library con-
tact information for its designated public records
officers and update that information as it chang-
es. Larger localities and organizations may de-
cide to designate more than one records officer,
with some having responsibility for the records of
only a single department, but all public records
in the locality must have someone designated to
be responsible for them. The Library conducts
training programs for local records officers to
help them understand and comply with the re-
quirements of the Act.
• Establish a local records management
and retention program
The Act requires every locality and local agency
to "ensure that its public records are preserved,
maintained, and accessible throughout their
lifecycle." Appendix A is a model ordinance
prepared by the Library of Virginia for localities
to use in establishing a records management
program and designating a local public records
officer. The Library has also published a very
good technical manual for the establishment of
a records management program, which along
with much other useful information, is available
on the public records section of the Library's
website: http: / /www.lva.virginia.gov/
agencies /records/.
What are some duties of a records
retention officer?
The primary duties are to be certain that the
departments or agencies for which the officer is respon-
sible keep their records for the required length of time,
maintain them in an accessible manner, and destroy
them when it is time to do so.
100 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
What does "accessible throughout their
lifecycle" mean?
How many of us have a box or drawer in our office
full of five floppy disks or 3.5 inch diskettes, but no lon-
ger have a drive on our desktop computer with which
to read them? One of the jobs of the records retention
officer is to make sure that records aren't made inac-
cessible in that way. Records must be maintained in
a form that can be viewed or read for as long as those
records are required to be kept. For paper records that
is generally not a problem, except for very old records
that must be kept permanently. These may require
photographing, copying or scanning to preserve their
contents. For records stored in other media, the Act re-
quires that they be converted or migrated to new media
as technologies become obsolete, "as often as necessary
so that information is not lost due to hardware, soft-
ware, or media obsolescence or deterioration."
helpful to someone researching information of the same
type in more than one locality. Following the schedules
for destruction of records will also be helpful in limit-
ing the scope of future requests for disclosure of records
under the Virginia Freedom of Information Act.
What conditions must be met before
destroying records?
First, the designated retention schedule for the
records must have expired. Second, the records must
not be the subject of any current Freedom ofInforma-
tion Act disclosure request, litigation or audit, or any
proposed change in the retention schedules. Third, the
locality or agency's designated public records officer
must have certified on a form approved by the Library
that the records are appropriate for destruction. After
the records are destroyed that form must be sent to the
Library. The forms required for the record destruction
process are found in Appendix C of this handbook.
How long do records have to be kept?
The length of time varies depending on the type
of record. As authorized by the Act, the Library of
Virginia has established retention schedules for various
categories of state and local government records. Some
types of records must be maintained permanently. For
certain types of permanent records that are considered
essential, copies must also be made and sent to the
Library for storage, so they can be recovered in case
the originals are destroyed by fire, flood or other catas-
trophe. Other types of records must be kept only a few
years and then destroyed. Appendix B of this handbook
contains more detailed information about the schedules
that apply to local government records. All the sched-
ules are also available online: www.lva.virginia.
gov/agencies/records/sched
Are we really obligated to destroy some older
records? Why?
Yes, the Act requires destruction of public records
"in a timely manner" once their designated retention
period has expired. The Library's website has more
guidance — www.lva.viginia.gov /agencies /records/
timely.asp.
In part, this requirement is intended to make room
for new records by getting rid of ones no longer needed.
The Act also says that it is state policy for records
management to be uniform throughout the Common-
wealth. Requiring destruction on a regular schedule
ensures that records of the same age and type will
be available in all localities at any given time. This is
Can we give the records away or sell them
instead of destroying them?
The Act requires that any records created before
1912 be offered to the Library of Virginia before being
destroyed. Selling public records or giving them to
anyone else is specifically prohibited by the Act.
What are the consequences if we don't
comply with the retention and destruction
requirements for our records? Are there fines
or penalties?
Unlike the Freedom of Information Act (FOIA), the
Public Records does not authorize private citizens to
sue public agencies or officials to force them to comply
with the Act. The Librarian of Virginia is given limited
authority to sue someone who is illegally retaining
public records that he is not entitled to keep, such as an
officeholder whose term has expired. The Act also gives
the Library the power to audit state or local agencies
for compliance with the Act and to report non- compli-
ance to the local governing body and the General As-
sembly. Such audits are not frequent, and the Library
has no power to impose monetary or other penalties for
non - compliance even when revealed by audit.
Why do we need to comply, then?
The best reason for compliance is that good records
management can make your organization more effi-
cient and benefit both current and future local officials.
2014 -2015 Virginia Freedom of Information Act I Conflict of InterestsAct I Virginia Public RecordsAct 101
Legally, the lack of a specific penalty does not change
your legal obligation to comply with the Act, and de-
liberately ignoring it could be cited as poor job perfor-
mance, or even as malfeasance in an extreme case.
The Freedom of Information Act may provide an-
other reason to comply with the Public Records Act in
some cases. When a citizen requests access to a record
under FOIA, the local agency or official has an obliga-
tion to produce that record, unless it is covered by a
specific statutory exemption.
If the record has been discarded or destroyed before
the end of the retention period established by the State
Library, the failure to comply with the Public Records
Act may be revealed, which is embarrassing at the
very least. We are not aware that any court has ruled
that failure to produce the record due to its premature
destruction also constitutes a violation of FOIA, but
we believe such an argument could be made. FOIA
violations, of course, can result in civil penalties and
payment of the requester's attorney fees.
102 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
TITLE 42.1. LIBRARIES
Chapter 7. Virginia Public Records Act
§ 42.1 -76
Legislative intent; title of chapter ........................................................................ ...............................
104
§ 42.1 -76.1
Notice of Chapter ................................................................................................. ...............................
104
§ 42.1 -77
Definitions ............................................................................................................ ...............................
104
§ 42.1 -78
Confidentiality safeguarded ................................................................................. ...............................
105
§ 42.1 -79
Records management function vested in The Library of Virginia ..................... ...............................
105
§ 42.1 -82
Duties and powers of Library Board ................................................................... ...............................
105
§ 42.1 -85
Records Management Program; agencies to cooperate; agencies to designate records officer .........
106
§ 42.1 -86
Essential public records; security recovery copies; disaster plans ........................ ...............................
106
§ 42.1 -86.1
Disposition of public records ................................................................................ ...............................
106
§ 42.1 -87
Archival public records ........................................................................................ ...............................
107
§ 42.1 -88
Custodians to deliver all records at expiration of term; penalty for noncompliance .........................
107
§ 42.1 -89
Petition and court order for return of public records not in authorized possession ...........................
107
§ 42.1 -90
Seizure of public records not in authorized possession ........................................ ...............................
108
§ 42.1 -90.1
Auditing ............................................................................................................... ...............................
108
2014 -2015 Virginia Freedom of Information Act I Conflict of InterestsAct I Virginia Public RecordsAct 103
§ 42.1 -76 Legislative intent; title of chapter
The General Assembly intends by this chapter to
establish a single body of law applicable to all public
officers and employees on the subject of public records
management and preservation and to ensure that the
procedures used to manage and preserve public records
will be uniform throughout the Commonwealth.
This chapter may be cited as the Virginia Public
Records Act.
§ 42.1 -76.1 Notice of Chapter
Any person elected, reelected, appointed, or reap-
pointed to the governing body of any agency subject
to this chapter shall (i) be furnished by the agency or
public body>s administrator or legal counsel with a
copy of this chapter within two weeks following elec-
tion, reelection, appointment, or reappointment and (ii)
read and become familiar with the provisions of this
chapter.
§ 42.1 -77 Definitions
As used in this chapter:
`Agency" means all boards, commissions, depart-
ments, divisions, institutions, authorities, or parts
thereof, of the Commonwealth or its political subdivi-
sions and includes the offices of constitutional officers.
`Archival quality" means a quality of reproduction
consistent with established standards specified by state
and national agencies and or responsible for
establishing such standards, such as the Association for
Information and Image Management, the American
National Standards Institute, and the National Institute
of Standards and Technology.
`Archival record" means a public record of continuing
and enduring value useful to the citizens of the Com-
monwealth and necessary to the administrative func-
tions of public agencies in the conduct of services and
activities mandated by law that is identified on a Library
of Virginia approved records retention and disposition
schedule as having sufficient informational value to be
permanently maintained by the Commonwealth.
`Archives" means the program administered by The Li-
brary of Virginia for the preservation of archival records.
"Board" means the State Library Board.
"Conversion" means the act of moving electronic
records to a different format, especially data from an
obsolete format to a current format.
"Custodian" means the public official in charge of an
office having public records.
`Disaster plan" means the information maintained by
an agency that outlines recovery techniques and meth-
ods to be followed in case of an emergency that impacts
the agency>s records.
"Electronic record "means a public record whose cre-
ation, storage, and access require the use of an auto-
mated system or device. Ownership of the hardware,
software, or media used to create, store, or access the
electronic record has no bearing on a determination of
whether such record is a public record.
"Essential public record" means records that are re-
quired for recovery and reconstruction of any agency
to enable it to resume its core operations and functions
and to protect the rights and interests of persons.
"Librarian of Virginia means the State Librarian of
Virginia or his designated representative.
"Liecycle" means the creation, use, maintenance,
and disposition of a public record.
`Metadata" means data describing the context, con-
tent, and structure of records and their management
through time.
"Migration" means the act of moving electronic
records from one information system or medium to
another to ensure continued access to the records while
maintaining the records> authenticity, integrity, reli-
ability, and usability.
"Original record" means the first generation of the
information and is the preferred version of a record.
Archival records should to the maximum extent pos-
sible be original records.
"Preservation" means the processes and operations
involved in ensuring the technical and intellectual sur-
vival of authentic records through time.
"Private record" means a record that does not relate to
or affect the carrying out of the constitutional, statu-
tory, or other official ceremonial duties of a public offi-
cial, including the correspondence, diaries, journals, or
notes that are not prepared for, utilized for, circulated,
or communicated in the course of transacting public
business.
"Public official" means all persons holding any office
created by the Constitution of Virginia or by any act of
the General Assembly, the Governor and all other of-
ficers of the executive branch of the state government,
and all other officers, heads, presidents or chairmen of
boards, commissions, departments, and agencies of the
state government or its political subdivisions.
"Public record" or "record" means recorded informa-
tion that documents a transaction or activity by or with
any public officer, agency or employee of an agency.
104 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
Regardless of physical form or characteristic, the re-
corded information is a public record if it is produced,
collected, received or retained in pursuance of law or in
connection with the transaction of public business. The
medium upon which such information is recorded has
no bearing on the determination of whether the record-
ing is a public record.
For purposes of this chapter, `public record" shall not
include nonrecord materials, meaning materials made
or acquired and preserved solely for reference use or
exhibition purposes, extra copies of documents pre-
served only for convenience or reference, and stocks of
publications.
"Records retention and disposition schedule" means a
Library of Virginia - approved timetable stating the
required retention period and disposition action of a
records series. The administrative, fiscal, historical,
and legal value of a public record shall be considered
in appraising its appropriate retention schedule. The
terms "administrative," "fiscal," "historical," and "le-
gal' value shall be defined as:
1. `Administrative value ": Records shall be deemed of
administrative value if they have continuing util-
ity in the operation of an agency.
2. "Fiscal value ": Records shall be deemed of fiscal
value if they are needed to document and verify
financial authorizations, obligations, and trans-
actions.
3. "Historical value ": Records shall be deemed of his-
torical value if they contain unique information,
regardless of age, that provides understanding
of some aspect of the government and promotes
the development of an informed and enlightened
citizenry.
4. "Legal value ": Records shall be deemed of legal
value if they document actions taken in the
protection and proving of legal or civil rights and
obligations of individuals and agencies.
§ 42.1 -78 Confidentiality safeguarded
Any records made confidential by law shall be so
treated. Records which by law are required to be closed
to the public shall not be deemed to be made open to
the public under the provisions of this chapter. Records
in the custody of The Library of Virginia which are
required to be closed to the public shall be open for
public access 75 years after the date of creation of the
record. No provision of this chapter shall be construed
to authorize or require the opening of any records or-
dered to be sealed by a court. All records deposited in
the archives that are not made confidential by law shall
be open to public access.
§ 42.1 -79 Records management function
vested in The Library of Virginia
A. The archival and records management function
shall be vested in The Library of Virginia. The Library
of Virginia shall be the official custodian and trustee
for the Commonwealth of all public records of what-
ever kind, and regardless of physical form or character-
istics, that are transferred to it from any agency. As the
Commonwealth>s official repository of public records,
The Library of Virginia shall assume ownership and
administrative control of such records on behalf of the
Commonwealth. The Library of Virginia shall own and
operate any equipment necessary to manage and retain
control of electronic archival records in its custody, but
may, at its discretion, contract with third -party entities to
provide any or all services related to managing archival
records on equipment owned by the contractor, by other
third parties, or by The Library of Virginia.
B. The Librarian of Virginia shall name a State Ar-
chivist who shall perform such functions as the Librar-
ian of Virginia assigns.
C. Whenever legislation affecting public records
management and preservation is under consideration,
The Library of Virginia shall review the proposal and
advise the General Assembly on the effects of its pro-
posed implementation.
§ 42.1 -82 Duties and powers of Library Board
A. The State Library Board shall:
1. Issue regulations concerning procedures for the
disposal, physical destruction or other disposition
of public records containing social security num-
bers. The procedures shall include all reasonable
steps to destroy such documents by (i) shredding,
(ii) erasing, or (iii) otherwise modifying the social
security numbers in those records to make them
unreadable or undecipherable by any means.
2. Issue regulations and guidelines designed to fa-
cilitate the creation, preservation, storage, filing,
reformatting, management, and destruction of
public records by agencies. Such regulations shall
mandate procedures for records management
and include recommendations for the creation,
retention, disposal, or other disposition of public
records.
B. The State Library Board may establish advisory
committees composed of persons with expertise in the
2014 -2015 Virginia Freedom of Information Act I Conflict of InterestsAct I Virginia Public RecordsAct 105
matters under consideration to assist the Library Board
in developing regulations and guidelines.
§ 42.1 -85 Records Management Program;
agencies to cooperate; agencies to designate
records officer
A. The Library of Virginia shall administer a
records management program for the application of ef-
ficient and economical methods for managing the life -
cycle of public records consistent with regulations and
guidelines promulgated by the State Library Board,
including operation of a records center or centers. The
Library of Virginia shall establish procedures and tech-
niques for the effective management of public records,
make continuing surveys of records and records keep-
ing practices, and recommend improvements in current
records management practices, including the use of
space, equipment, software, and supplies employed in
creating, maintaining, and servicing records.
B. Any agency with public records shall cooperate
with The Library of Virginia in conducting surveys.
Each agency shall establish and maintain an active,
continuing program for the economical and efficient
management of the records of such agency. The agency
shall be responsible for ensuring that its public records
are preserved, maintained, and accessible throughout
their lifecycle, including converting and migrating elec-
tronic records as often as necessary so that information
is not lost due to hardware, software, or media obsoles-
cence or deterioration. Any public official who converts
or migrates an electronic record shall ensure that it is
an accurate copy of the original record. The converted
or migrated record shall have the force of the original.
C. Each state agency and political subdivision of
this Commonwealth shall designate as many as ap-
propriate, but at least one, records officer to serve as a
liaison to The Library of Virginia for the purposes of
implementing and overseeing a records management
program, and coordinating legal disposition, includ-
ing destruction, of obsolete records. Designation of
state agency records officers shall be by the respective
agency head. Designation of a records officer for politi-
cal subdivisions shall be by the governing body or chief
administrative official of the political subdivision. Each
entity responsible for designating a records officer shall
provide The Library of Virginia with the name and
contact information of the designated records officer,
and shall ensure that such information is updated in a
timely manner in the event of any changes.
D. The Library of Virginia shall develop and make
available training and education opportunities con-
cerning the requirements of and compliance with this
chapter for records officers in the Commonwealth.
§ 42.1 -86 Essential public records; security
recovery copies; disaster plans
A. In cooperation with the head of each agency,
The Library of Virginia shall establish and maintain a
program for the selection and preservation of essential
public records. The program shall provide for pre-
serving, classifying, arranging, and indexing essential
public records so that such records are made available
to the public. The program shall provide for making
recovery copies or designate as recovery copies existing
copies of such essential public records.
B. Recovery copies shall meet quality standards
established by The Library of Virginia and shall be
made by a process that accurately reproduces the
record and forms a durable medium. A recovery copy
may also be made by creating a paper or electronic
copy of an original electronic record. Recovery cop-
ies shall have the same force and effect for all purposes
as the original record and shall be as admissible in
evidence as the original record whether the original
record is in existence or not. Recovery copies shall be
preserved in the place and manner prescribed by the
State Library Board and the Governor.
C. The Library of Virginia shall develop a plan to
ensure preservation of public records in the event of
disaster or emergency as defined in § 44- 146.16. This
plan shall be coordinated with the Department of
Emergency Management and copies shall be distrib-
uted to all agency heads. The plan shall be reviewed
and updated at least once every five years. The person-
nel of the Library shall be responsible for coordinating
emergency recovery operations when public records are
affected. Each agency shall ensure that a plan for the
protection and recovery of public records is included in
its comprehensive disaster plan.
§ 42.1 -86.1 Disposition of public records
A. No agency shall sell or give away public records.
No agency shall destroy or discard a public record
unless (i) the record appears on a records retention
and disposition schedule approved pursuant to § 42.1-
82 and the record's retention period has expired; (ii) a
certificate of records destruction, as designated by the
Librarian of Virginia, has been properly completed
and approved by the agency's designated records of-
ficer; and (iii) there is no litigation, audit, investigation,
request for records pursuant to the Virginia Freedom of
106 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
Information Act (§ 2.2 -3700 et seq.), or renegotiation of
the relevant records retention and disposition schedule
pending at the expiration of the retention period for the
applicable records series. After a record is destroyed or
discarded, the agency shall forward the original certifi-
cate of records destruction to The Library of Virginia.
B. No agency shall destroy any public record cre-
ated before 1912 without first offering it to The Library
of Virginia.
C. Each agency shall ensure that records created af-
terJuly 1, 2006 and authorized to be destroyed or dis-
carded in accordance with subsection A, are destroyed
or discarded in a timely manner in accordance with
the provisions of this chapter; provided, however, such
records that contain identifying information as defined
in clauses (iii) through (ix), or clause (xii) of subsection
C of §18.2 - 186.3, shall be destroyed within six months
of the expiration of the records retention period.
§ 42.1 -87 Archival public records
A. Custodians of archival public records shall keep
them in fire - resistant, environmentally controlled,
physically secure rooms designed to ensure proper
preservation and in such arrangement as to be easily
accessible. Current public records should be kept in the
buildings in which they are ordinarily used. It shall be
the duty of each agency to consult with The Library
of Virginia to determine the best manner in which
to store long -term or archival electronic records. In
entering into a contract with a third -party storage pro-
vider for the storage of public records, an agency shall
require the third -party to cooperate with The Library
of Virginia in complying with rules and regulations
promulgated by the Board.
B. Public records deemed unnecessary for the trans-
action of the business of any state agency, yet deemed
to be of archival value, may be transferred with the
consent of the Librarian of Virginia to the custody of
the Library of Virginia.
C. Public records deemed unnecessary for the
transaction of the business of any county, city, or town,
yet deemed to be of archival value, shall be stored
either in The Library of Virginia or in the locality, at
the decision of the local officials responsible for main-
taining public records. Archival public records shall be
returned to the locality upon the written request of the
local officials responsible for maintaining local pub-
lic records. Microfilm shall be stored in The Library
of Virginia but the use thereof shall be subject to the
control of the local officials responsible for maintaining
local public records.
D. Record books deemed archival should be copied
or repaired, renovated or rebound if worn, mutilated,
damaged or difficult to read. Whenever the public
records of any public official are in need of repair, res-
toration or rebinding, a judge of the court of record or
the head of such agency or political subdivision of the
Commonwealth may authorize that the records in need
of repair be removed from the building or office in
which such records are ordinarily kept, for the length
of time necessary to repair, restore or rebind them,
provided such restoration and rebinding preserves
the records without loss or damage to them. Before
any restoration or repair work is initiated, a treatment
proposal from the contractor shall be submitted and
reviewed in consultation with The Library of Virginia.
Any public official who causes a record book to be cop-
ied shall attest it and shall certify an oath that it is an
accurate copy of the original book. The copy shall then
have the force of the original.
E. Nothing in this chapter shall be construed to
divest agency heads of the authority to determine the
nature and form of the records required in the admin-
istration of their several departments or to compel the
removal of records deemed necessary by them in the
performance of their statutory duty.
§ 42.1 -88 Custodians to deliver all records at
expiration of term; penalty for noncompliance
Any custodian of any public records shall, at the
expiration of his term of office, appointment or employ-
ment, deliver to his successor, or, if there be none, to
The Library of Virginia, all books, writings, letters,
documents, public records, or other information, re-
corded on any medium kept or received by him in the
transaction of his official business; and any such person
who shall refuse or neglect for a period of ten days after
a request is made in writing by the successor or Librar-
ian of Virginia to deliver the public records as herein
required shall be guilty of a Class 3 misdemeanor.
§ 42.1 -89 Petition and court order for return
of public records not in authorized possession
The Librarian of Virginia or his designated rep-
resentative such as the State Archivist or any public
official who is the custodian of public records in the
possession of a person or agency not authorized by the
custodian or by law to possess such public records shall
petition the circuit court in the city or county in which
the person holding such records resides or in which
the materials in issue, or any part thereof, are located
for the return of such records. The court shall order
2014 -2015 Virginia Freedom of Information Act I Conflict of InterestsAct I Virginia Public RecordsAct 107
such public records be delivered to the petitioner upon
finding that the materials in issue are public records
and that such public records are in the possession of
a person not authorized by the custodian of the pub-
lic records or by law to possess such public records. If
the order of delivery does not receive compliance, the
plaintiff shall request that the court enforce such order
through its contempt power and procedures.
§ 42.1 -90 Seizure of public records
not in authorized possession
A. At any time after the filing of the petition set out
in § 42.1 -89 or contemporaneous with such filing, the
person seeking the return of the public records may
by ex parte petition request the judge or the court in
which the action was filed to issue an order directed at
the sheriff or other proper officer, as the case may be,
commanding him to seize the materials which are the
subject of the action and deliver the same to the court
under the circumstances hereinafter set forth.
B. The judge aforesaid shall issue an order of seizure
upon receipt of an affidavit from the petitioner which
alleges that the material at issue may be sold, secreted,
removed out of this Commonwealth or otherwise
disposed of so as not to be forthcoming to answer the
final judgment of the court respecting the same; or that
such property may be destroyed or materially damaged
or injured if permitted to remain out of the petitioner >s
possession.
C. The aforementioned order of seizure shall issue
without notice to the respondent and without the post-
ing of any bond or other security by the petitioner.
§ 42.1 -90.1 Auditing
The Librarian may, in his discretion, conduct an
audit of the records management practices of any
agency. Any agency subject to the audit shall cooperate
and provide the Library with any records or assistance
that it requests. The Librarian shall compile a written
summary of the findings of the audit and any actions
necessary to bring the agency into compliance with this
chapter. The summary shall be a public record, and
shall be made available to the agency subject to the au-
dit, the Governor, and the chairmen of the House and
Senate Committees on General Laws and the House
Appropriations and Senate Finance Committees of the
General Assembly.
108 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
Appendix A
Library of Virginia
Model Ordinance for A Locality Records Management Program
WHEREAS, the Virginia Public Records Act, Code of Virginia, Section 42.1 -76 ct seq., requires the City /County /Town of
to establish and maintain a program for the economical and cfficicnt management of the records of its
offices and departments, and
WHEREAS, the Virginia Public Records Act establishes a single body of law applicable to public officers and employees on the subject
of public records management and preservation, and to ensure that the procedures used to manage and preserve public records will be
uniform throughout the state, and
WHEREAS, the City/County/Town of desires to adopt an ordinance to provide for an orderly and
cfficicnt system of records management on compliance with the provisions of the Virginia Public Records Act; NOW
THEREFORE:
BE IT ORDAINED BY'T'HE CI'T'Y /TONVN COUNCIL (or) BOARD OF SUPERVISORS OF
SECTION 1. DEFINITION OF CITY /COUN'TY /TONVN RECORDS. All written books, papers, letters, documents, photographs,
tapes, microfiche, photostats, sound recordings, maps, other documentary materials or information in any recording medium regardless
of physical form or characteristics, including data processing devices and computers, made or received in pursuance of law or in
connection with the transaction of public business by office or department of the City /County/Town government.
Nonrccord materials, meaning reference books and exhibit materials made or acquired and preserved solely for reference use or
exhibition purposes, extra copies of documents preserved only for convenience or reference, and stocks of publications, shall not be
included within the definition of Citv /County /'Town records as used in this ordinance.
SECTION 2. CI'T'Y /COUN'I'Y /'TONVN RECORDS DECLARED PUBLIC PROPERTY. All City /County /Town records as defined
in Section 1 of this ordinance are hereby declared to be the property of the City /County/Town of No
City /County /Town officials or employees have, by virtue of their position any personal or property right to such records.
Any custodian of any public records shall, at the expiration of the term of office, appointment or employment, deliver to a successor,
or if there be none, to the City/County/Town Records Manager, all books, writings, letters, documents, public records, or other
information, recorded on any medium kept or received in the transaction of official business.
SECTION 3. CUSTODY AND PRLSLRVATION OF THE RECORDS OF THL GOVERNING BODY. The clerk to the local
governing body shall retain the records of such body. The minutes of the meetings of the governing body shall be microfilmed for
security purposes and the master microfilm copy shall be stored with the Library of Virginia.
SECTION 4. RECORDS MANAGEMENT PROGRAM LS'1'ABLISHLD; DUTY OF'THE CI'T'Y /'TON \ %1\ MANAGER,
COUNTY ADMINISTRATOR. It is hereby declared to be the duty of the City /'Town Manager, County Administrator, of the
City /County /'Town of to develop a comprehensive records management program establishing
procedures for the management of records from their creation to their ultimate disposition, to provide for the cfficicnt and economical
creation, distribution, maintenance, use, preservation and disposition of the City/County /Town records.
SECTION 5. POSITION OF RECORDS MANAGER ESTABLISHED; DUTIES OF THL RECORDS MANAGER. The City/
Town Manager, County Administrator shall name a staff person to serve as City/County /Town Designated Records Manager. The
Records Manager shall be responsible for implementing the records management program of the City /County /'town. 'The Records
Manager shall implement the policies and procedures for a comprehensive records management program as approved by the City/
Town Manager, County Administrator.
SECTION 6. RESPONSIBILITIES OF DEPARTMENT HEADS; RECORDS OFFICERS. It shall be the duty of all department
heads to cooperate with the City /Town Manager, County Administrator, in implementing the provision of the records management
ordinance. Nothing in this ordinance shall be construed to compel the removal of records from the custody of the department head
when such records arc deemed necessary in the performance of statutory duties.
2014 -2015 Virginia Freedom of Information Act I Conflict of InterestsAct I Virginia Public RecordsAct 109
Appendix B
Locality Retention Schedules
Under Code of Virginia § 42.1 -85, the Library of Virginia
(LVA) has the authority to issue regulations governing the reten-
tion and disposition of state and local public records. In keeping
with the Code's mandate, LVA has developed Records Reten-
tion & Disposition Schedules outlining the disposition of public
records.
Under this policy, the LVA issues two types of schedules.
General Schedules apply to the records of common functions
performed by or for all localities and state agencies. Specific
Schedules apply to records that are unique to an individual state
agency. For a copy of your agency Specific Schedule, log into
Infolinx.
Before a state agency or locality can destroy public records:
• A records officer for your organization must be des-
ignated in writing by completing and filing a Records
Officer Designation and Responsibilities (RM -25 Form)
with the Library of Virginia.
• Records to be destroyed must be covered by a Library of
Virginia - approved General or Specific Records Reten-
tion & Disposition Schedule and the retention period for
the records must have expired.
• All investigations, litigation, required audits, and
Virginia Freedom of Information Act requests must be
completed or fulfilled.
• The organization's designated records officer and an
approving official must authorize records destruction by
signing each Certificate of Records Destruction
(RM -3 Form).
When a new schedule is approved, it supersedes all previ-
ously issued versions of the schedule.
Local Departments
GS -31, Airports (Sep 2003)
GS -05, Assessment Records (Dec 2007)
GS -14, County and Municipal Attorneys (May 2010)
GS -06, Land Use, Land Development and Public Works (Oct
2013) *Updates to citations and cut -off events*
GS -11, Parks and Recreation (Dec 2013) *Complete
revision; cemetery series combined and other
updates*
GS -22, Public Library (April 2013)
GS -21, Public School (Dec 2012)
GS -07, Public Utilities (Nov 2011)
GS -32, Redevelopment and Housing Authority (July 2007)
GS -28, Treasurer (April 2013)
GS -01, Voter Registration and Llections (May 2010)
Human Services
GS -18, Community Services Board (CSB) (April 2013)
GS -15, Social Services (Feb 2012)
Judiciary
GS -12, Circuit Court (Nov 2011)
GS -13, Commonwealth's Attorney (June 2014) *Complete
revision*
GS -27, Court Appointed Special Advocate (CASA) (July 2009)
GS -26, Pretrial Services (Sep 2005)
Searchable Database
for Locality General Schedules
General Administration
GS -19, Administrative Records (Dec 2012)
GS -02, Fiscal Records (June 2014) *Updated cutoff for
Fixed Assets Files*
GS -16, General Services (Nov 2011)
GS -33, Information Technology (Mar 2009)
GS -03, Personnel Records (Aug 2012)
Public Safety
GS -25, Community Corrections Act Program (Sep 2006)
GS -29, Criminal Justice Training Academy (Dec 2007)
GS -10, Fire and Rescue (Feb 2004)
GS -24, Juvenile Residential Services (Nov 2003)
GS -17, Law Lnforcement (Oct 2013) *Several updates, most
notably the addition of 200163, 200164, 200186*
GS -08, Local and Regional Jails (Dec 2013) *All law
enforcement series moved to GS -17*
GS -30, Virginia Alcohol Safety Action Program (VASAP) (Feb
2013)
* Recent updates are highlighted in bold *
The links on this Library of Virginia page are at
http://www.lva.virginia.gov/agencies/
records/sched
110 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act
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Instructions for Completing the Certificate of Records Destruction (RM -3 Form)
Updated: July 2013
The RM -3 documents that records were destroyed properly and in accordance with the Virginia Public Records Act.
Before a state agency, locality, or regional entity (hereafter referred to as "agency ") can destroy public records:
• A Records Officer must be designated in writing for your agency or department by completing a RECORDS OFFICER DEsIGNATIONAND
RESPONSIBILITIES (RM -25 FORM) and filing it with the Library of Virginia.
• Records to be destroyed must be covered by a Library of Virginia- approved general or agency- specific RECORDS RETENTION AND
DISPOSITION SCHEDULE, and the retention period for the records must have expired.
• All investigations (including requests under the Freedom of Information Act), litigation, and required audits must be completed, as
no record can be destroyed if it is subject to one of these actions.
• The organization's designated Records Officer and an Approving Official must authorize the destruction by signing each RM -3
form.
After public records have been destroyed:
• A responsible person must affirm that the records were destroyed by signing and dating line 9 of the form. This may be the agency
staff member or representative of the company who destroyed the records or it may be an official of the agency affirming that they
have the knowledge that the records have been destroyed. Either way, this is the final signature that certifies the records have
actually been destroyed. No vendor certificates or other attachments (such as lists of records destroyed) will be accepted with the
RM -3.
A copy of the signed RM -3 form must be retained by the organization pursuant to GS -19 for localities or GS -101 for state agencies
The RM -3 form, with all original signatures, must be mailed to the Library of Virginia where it will be retained for fifty (50) years.
Mail forms to:
Library of Virginia
Att: Patrice Morgan
800 E. Broad Street
Richmond VA 23219 -8000
For additional information on records destruction refer to the Virginia Public Records Management Manual (Chap. 8).
Instructions:
1. Type the full name of agency, locality, or regional entity.
2. Type the name of division, department, and /or section.
3. Type the name of individual completing the form (to whom any questions about the form or records may be directed).
4. Type the mailing address of the agency.
5. Type the
a) Telephone number of the person completing the form including direct extension, if applicable.
b) E -mail address of the person completing the form.
6. Records to be destroyed:
a) Type both the retention schedule and series numbers that apply to the records to be destroyed. ENTER ONLY ONE SERIES
NUMBER PER LINE.
b) Type the exact records series title as listed on the approved retention schedule. You may add detail to this title if it is important to
identifying the records.
c) Type the date range of the records to be destroyed, from oldest to most recent. Indicate starting month /year and ending
month /year.
d) Type the location where the records are stored (optional).
e) Type the total volume for each series of records to be destroyed in cubic feet (cf). Refer to the Volume Equivalency Table to
convert boxes, drawers, open shelves, or even "piles" of paper or microform records to their cubic - footage equivalents. If it is
electronic records being destroyed, then enter the approximate size of the files in some form of byte (kilo -, mega, - giga -, etc.).
If needed, please use two lines to report destruction of electronic and paper records from the same series.
f) Type the method used to destroy the records, i.e., trash, recycle, shred, burn, pulp, electronically shred, degaussed, etc.
7. Type the name of the individual responsible for the records or the work that the records support; sign and date.
8. Type name; apply signature of Records Officer attesting that the form is accurate and complete, and the date signed.
9. Typed or printed name and signature of individual or company representative who affirms that the records have been destroyed and the
date they were destroyed. Do not attach anything to the original sent to the Library of Virginia.
If multiple RM -3 forms are submitted, all three required signatures must be on each page.
Do not modify the RM -3 form or print double- sided.
For an example of a completed RM -3, please see the Completed Sample RM -3 .
112 2014 -2015 Virginia Freedom of Information Act I Conflict of Interests Act I Virginia Public Records Act