BOS chair questions state of emergency
▶ Three county officials complain emergency declaration too restrictive ▶ Committee member Glennie admits to ‘baiting’ two newest supervisors
It was almost two months ago on March 17 that a local “state of emergency” was declared (and subsequently ratified) by the Rappahannock County government due to the rapidly spreading COVID-19 pandemic.
Three weeks later, on April 6 and by unanimous vote of the Rappahannock County Board of Supervisors, public
meeting and hearing practices were modified by “emergency ordinance” providing for the continuity of county government operations.
“At this time, public health experts recommend against assembling groups of people in confined spaces,” determined the supervisors, ordering in part that for a period of 60 days unless amended “any regular scheduled or regular meeting of any public body may be held by solely electronic or telephonic means without a quorum of members physically present and without members of the public physically present.”
But as with other areas across the country, there are some within the Rappahannock County government — in both elected and appointed positions — who now want the county to loosen its operational restrictions. And as cases of COVID-19 here have been rising.
Among the officials is Rappahannock County Board of Supervisors Chair Christine Smith, who prepared a resolution and ordinance in advance of last week’s regular BOS meeting that sought to “terminate” the local emergency declaration drafted by County Administrator Garrey Curry in his role as Director of Emergency Management.
The chair’s document, among other points, questioned “the constitutionality and lawfulness of these emergency measures.” The supervisors were to meet Wednesday night, after this newspaper went to press, to further discuss COVID-19 emergency measures now in place.
Backing out of an emergency declaration — Rappahannock, we are told, would become the only county in the commonwealth to do so — could have implications for the county government, private sector, and public. At a minimum, an emergency declaration positions the county to request reimbursement for COVID-19 related costs through the state capital in Richmond and the Federal Emergency Management Agency.
State restrictions, being softened in phases starting Friday by Virginia Gov. Ralph Northam, would also advise against termination given the current increase of coronavirus cases.
COMPLAINTS, FOIA REQUEST
Smith, as it happened, never added her measure to the May 4 meeting agenda. She told this newspaper Monday that it was a “document I was working with at that time.”
“One additional detail, our meeting on Monday the 4th was simultaneous with the governor’s announcement for his plans, making it incredibly challenging to take any action,” she said.
In part, her draft ordinance stated that the resulting “shutdown from the State of Emergency while arguably prudent and necessary, is becoming more detrimental to our local economy, and questions have been raised concerning the effectiveness of the mandatory shutdown and confinement measures as well as with regard to the constitutionality and lawfulness of these emergency measures.”
“Let’s Get Back to Work,” echoed Rappahannock Building Committee and Fire Levy Board member Page Glennie in a May 6 email to Smith and other board members, cc’ing Curry and County Attorney Art Goff. This newspaper obtained it and other emails through a subsequent FOIA request submitted by Glennie last week.
“So if Albemarle County can hold Planning Commission meetings to address routine business, why can’t Rappahannock County hold Planning Commission meetings to address the sizable backlog of work on the Comprehensive Plan and the Zoning Ordinance?” Glennie wondered.
“Why can’t the Building Committee get back to work on the many infrastructure issues? Why can’t the Fire Levy Board review the Fire and Rescue Strategic Plan? . . . There are many very important tasks that need to get done. The backlog of work was bad before. We are now digging an even bigger hole.
“With so many other activities being curtailed, what better time is there to get work done?” he concluded. “It is apparent that the county’s working definition of essential business is too restrictive. Have we asked Richmond for clarification or guidance? BTW: I can’t remember any committee meeting where 10 people showed up, and besides Zoom can be used. Please get back to work.”
Less than 48 hours later, after Glennie had not received an official reply from Smith, he wrote to Curry:
“I have not received an answer to this email, more less an acknowledgement of receipt. I understand it is not your responsibility to respond to me directly, nor did I expect you to. However, I am confident that you would not let something like this just go without providing input to the board. Consequently, I request [under FOIA] all correspondence (to or from) between any of the addressees (both to and cc).”
In under two hours’s time, Curry wrote back to Glennie, copying the BOS and Goff: “Find attached responsive documents to your FOIA request. Note, the emails from the accounts of Curry, Donehey, Goff, Parrish, and Whitson all included the same emails (all copied to each other), I extracted them from my account so as to not have to pull five different files with the same set of emails. The emails from the accounts for Frazier and Smith had additional email traffic, so they are provided separately.”
Glennie, it turns out, had in fact heard back from Supervisor Ron Frazier moments after sending his May 6 missive imploring the county to return to work. “Well,” Frazier wrote, “I mentioned the same thing during Wednesday’s meeting most specifically the ‘Building Comm.’ I wonder, is it because certain people have more power or authority under lock down? or, in the case of the County Atty. less questions concerning his performance?”
Frazier has been repeatedly critical of Goff in the past.
Five minutes later, Glennie wrote back to Frazier, going so far as to acknowledge: “Yes I know. I’m baiting [Supervisors] Keir [Whitson] and Debbie [Donehey], particularly Debbie, into a response. If Garrey responds, I’ll emphasize I wanted a response for BOS members, not the Director of Emergency Management.”
ADMINISTRATIVE GUIDANCE
Curry, meanwhile, had assured the supervisors upon receiving Glennie’s original email: “Neither Art nor I think that the ‘continuity of government’ requires the actions listed as an example from Albemarle, and we are understandably conservative when it comes to FOIA issues. We need to look no further than back to last weekend when we received letters from a local attorney questioning our authority to even proceed with electronic meetings with the very conservative method we are using. Albemarle may have to defend how they have chosen to interpret COV [Code of Virginia] Section 15.2-1413, not us.
“That said, I committed during the [BOS] meeting on Monday to work with the county attorney to review the new HB29 language [Governor Northam’s
COVID-19 declarations channel] that appears to broaden what we can do and let the board know our thoughts. I have no interest in attracting another FOIA lawsuit, particularly while I am your FOIA officer. Other localities may not have ever had the pleasure of having a FOIA lawsuit.”
Continued Curry: “Nothing in what the board already passed disallows the board from holding in person meetings. The county attorney and I have discussed that there could be liability if people get sick and blame the county for having a meeting as the path (contact tracing) through which they were infected. Is it worth it? The governor has laid out his plan and I suggest that the reintroduction of non-electronic meetings be linked to Phases 1/2/3 that he proposed. We may enter Phase 1 on May 15, if the date is not further pushed back, and small groups of less than 10 would be supported by the governor.”
Finally, this guidance: “The chairs of your committee can hand out ‘assignments’ to be carried out by individual committee members for input to other committee members at their next meeting. As long as there is no communications among three or more members on a rapid basis (approaching simultaneously), it would not be a FOIA issue.”
Upon receiving Curry’s guidance, Supervisor Whitson wrote back: “Well said, Garrey, and much appreciated.”
To which Smith replied the morning of May 7: “Respectfully, chairs call meetings, not staff. It’s a shame that some six weeks into this we still have no clear guidance by which to operate. Events this past weekend showed how dangerous it is to be in a state of ‘reaction: I suppose I should be happy that someone is getting around to it next week . . .”
Minutes later, Smith enquired of Curry: “Have you or Art asked other localities for the basis of their continued operations? As in many other instances, it would be nice not to reinvent the wheel on this. I know you have many other demands on your time.”
Curry responded: “I have reviewed other locality continuity of government ordinances. I’m not sure anyone has really gotten their arms around the new language from HB29, but I will be on the lookout.”
Frazier, at the same time, forwarded to Glennie for the first time Curry’s original email to the BOS, telling the committees member: “I missed the fact that Garrey did not reply to you, just the board, I guess Keir [Whitson] missed it too but didn’t send to you thanking Garrey for his response.”
All said and done, the BOS last night (Wednesday) was expected to further discuss dialing back Rappahannock’s emergency declaration. Smith told the News on Monday that Curry has drafted a new document “at the request of me and other board members, so as this situation unwinds we will have options in place to resume business in the county, including government business. It’s a matter of timing on these things, to be sure.
“I’d like to have a constructive conversation as a board about what benefits we see from the declared state of emergency, rather than just have it in place because everyone else does,” Smith explained.