FOIA & COIA 101

1. FOIA & COIA 101 The Virginia Freedom of Information act and Conflict of Interest Act in a nutshell

2. FOIA: Importance of Compliance • Highly scrutinized by a variety of interest groups: • Faculty, Press, Alumni, State Officials, Students, Citizens • It could cost you – literally. First time violations can result in civil penalties between $500 - $2,000. • Negative publicity for the University • Violation of the public trust

3. FOIA: Application True or False: FOIA only applies to Board members’ conduct and materials in conjunction with formal meetings of the Board.

4. FOIA: Application False. FOIA’s meeting requirements are triggered anytime 3 or more Board members gather (in person or otherwise) to discuss public business. Likewise, FOIA’s record requirements cover all writings prepared or used in the transaction of public business that are in a Board member’s possession regardless as to where or how the records are stored.

5. FOIA: Meeting Requirements FOIA requires that all Board meetings be open to the public and prohibits discussion of public business among members outside of meetings. Notice of a meeting must be posted at least 3 working days in advance of the meeting. The statute specifies the information that must be included in a valid notice and where it must be posted. MEETINGS REQUIRE ADVANCE PLANNING.

6. FOIA: Meeting Requirements True or False: Under certain circumstances, the Board may hold a meeting with less than three working day’s notice.

7. FOIA: Meeting Requirements True. FOIA allows for Boards to hold emergency meetings with less than three days notice, as long as the notice that is given is reasonable under the circumstances. An “emergency” is best thought of as an extremely urgent situation beyond the Board’s control. Delay or procrastination by the Board or the University does not constitute an “emergency” under FOIA.

8. FOIA: Meetings Using Electronic Communication • Members may participate in a meeting from a remote location provided that the following conditions are met: • A quorum of the body is physically assembled in one central location. • The remote location from which the member will be participating is open to the public. • Equipment, usually a speaker phone, is available at the remote location so that the public can hear and participate fully. • A valid meeting notice specifically identifies the remote location and includes contact information for the central location.

9. FOIA: Special Situations True or False: FOIA prohibits Board members from attending the same social gatherings or events unrelated to Board or University business.

10. FOIA: Special Situations False. Board members may attend unrelated events without triggering FOIA’s meeting requirements and while there may even engage in a one-on-one discussion with another Board member about public business. However, three or more Board members may not jointly discuss public business without constituting an unlawful (i.e. unnoticed) meeting.

11. FOIA: Special Situations True or False. Board members’ communications over email may constitute a public meeting.

12. FOIA: Special Situations True. Where use of email resembles traditional communication through ordinary mail (i.e. there’s a delay between receipt and response), there is no meeting under FOIA. However, where an exchange of email resembles an assemblage of members of a public body (i.e. emails are sent and responded to in a virtually simultaneous fashion), then such communications involving 3 or more members could constitute a meeting under FOIA. DO NOT USE REPLY ALL.

13. FOIA: Closed Meetings Exceptions • FOIA specifies more than 40 exceptions to the open meeting requirement, allowing for closed meetings under certain circumstances. Exceptions relevant to Board business include: • Personnel exception – Discussion of prospective candidates for employment or performance of specific employees • Scholastic record exception – Discussion of admission or disciplinary matters involving specific students • Real property exception – Discussion of acquisition or disposition of real property where institution’s bargaining position may be harmed • Investment exception – Discussion of investment of public funds where competition or bargaining is involved and the institution’s financial interest might be harmed.

14. FOIA: Closed Meetings Exceptions • Additional exceptions include: • Legal advice exception – Consultation with legal counsel for advice on specific legal matters and related staff briefings • Development exception – Discussion of matters related to gifts, bequests and fund-raising activities • Honorary degree exception – Discussion of honorary degrees or special awards • Terrorism exception – Discussion related to plans to protect public safety as it relates to terrorist activity and institution’s response • Contract exception – Discussion of award of a public contract using public funds where open discussion would adversely affect the institution’s bargaining position

15. FOIA: Closed Meeting Procedures The meeting must be properly noticed and convened as an open meeting A detailed motion must be made to go into closed session identifying the subject matter to be discussed, the purpose of the meeting and the applicable FOIA exception by citation A vote on the motion to go into closed session must be taken in open session and recorded in the minutes.

16. FOIA: Closed Meeting Procedures Only matters identified in the motion to enter closed session may be discussed. The Board may choose to allow non-members to participate as necessary. The Board must reconvene in open session and take a roll call vote to certify that only those matters identified in the motion to close the meeting were discussed. Any member who believes matters outside the scope of the motion were discussed should say so prior to the vote.

17. FOIA: Closed Meetings True or False. The Board may not vote in closed session.

18. FOIA: Closed Meetings Both. The Board can take non-binding votes (i.e. straw polls) to get a sense for how a public vote might go, but any action that is required as a result of discussions in closed session must be taken once the Board has reconvened in an open meeting. Members are not bound to vote in open meeting as they indicated they would in the closed session.

19. FOIA: Record Requirements FOIA requires that all records in the possession of a Board member that relate to public business be available to Virginia citizens and members of the media upon request. The Public Records Act requires that all public records be retained and only destroyed in accordance with a set schedule. FOIA entitles requestors to read and inspect the documents and to make copies. Records are any writings or recordings used to transact public business, whether produced by a public officer or a third party, including paper documents, emails, text messages, video and audio tapes, and handwritten notes

20. FOIA: Record Requirements FOIA requires that institutions respond to all FOIA requests within five working days Any request for records or documents related to the University or the Board, whether the request is in writing or not, should be treated as a FOIA request FOIA provides over 100 exemptions to the general requirement that records be produced, but unless one of those exemptions applies the requested records must be produced. PRESUME THAT ALL RECORDS WILL BE RELEASED.

21. FOIA: Record Requirements True or False. If a FOIA request is submitted on a subject for which a Board member has knowledge, but no related documents, the Board member is required to record her thoughts to respond to the request.

22. FOIA: Record Requirements False. FOIA only requires the production of already-existing documents. It never requires that a record or document be created.

23. COIA: Importance of Compliance Duty to avoid a violation of the Virginia Conflict of Interest Act attaches primarily to individual members – not to the Board as a whole A knowing COIA violation is a Class 1 misdemeanor punishable by a fine of up to $2,500 and up to 12 months in jail. A knowing COIA violation also constitutes malfeasance in office subject to forfeiture of the office and may result in invalidation of contracts or sales improperly awarded and forfeiture of anything of value improperly derived

24. COIA: Express Prohibitions • No Board member shall: • Solicit or accept money or other thing of value for services performed within the scope of his official duties • Offer or accept any money or other thing of value in consideration of obtaining employment, appointment or promotion of any person within any governmental agency • Offer or accept any money or other thing of value in consideration of the use of her public position to obtain a contract for any person or business with any governmental agency

25. COIA: Express Prohibitions • No Board member shall: • 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 publicly available • Accept any money, loan, gift, favor, service, or business or professional opportunity that reasonably tends to influence her in the performance of her official duties. • Accept any business or professional opportunity when he knows that there is a reasonable likelihood that the opportunity is being afforded him to influence him in the performance of his official duties

26. COIA: Express Prohibitions • No Board member shall • Accept a gift from a person who has interests that may be substantially affected by the performance of the member’s official duties under circumstances when the timing and nature of the gift would cause a reasonable person to question the member’s impartiality in the matter affecting the donor • Accept gifts from sources on a basis so frequent as to raise an appears of the use of her public office for private gain

27. COIA: Prohibited Conduct True or false: As long as you avoid soliciting or accepting money in exchange for performance of your official duties, you have satisfied the requirements of the Conflict of Interests Act.

28. COIA: Prohibited Conduct False. COIA also prohibits Board members from having a personal interest in contracts with the University and disqualifies members from participating in Board and University actions in which they have a personal interest. COIA sets forth the minimum standards of conduct – members are also expected to avoid the appearance of impropriety.

29. COIA: Personal Interests A “personal interest” under COIA means a financial benefit or liability accruing to a Board member or a member of his immediate family A financial benefit may exist because the Board member: a) has an ownership interest or an option for an ownership interest in a business or property; b) receives income from a business or property; c) receives salary or other compensation provided by a business or governmental agency; or d) has assumed or incurred a personal liability on behalf of a business A financial benefit does not include income or salary that is not reasonably anticipated to exceed $10,000 annually or an ownership interest or liability that does not exceed 3% of the value of the underlying business or property

30. COIA: Personal Interest in a Contract Personal interest in a contract means a personal interest that a Board member has in a contract with a governmental agency whether she is party to the contract or has a personal interest in a party to the contract No Board member shall have personal interest in a contract with the University No Board member shall have a personal interest in a contract with any other governmental agency unless the contract is awarded pursuant to a competitive procurement or upon a written finding by the agency head that a competitive process is contrary to the best interests of the public

31. COIA: Prohibited Contracts True or false: COIA prevents a Board member from ever contracting with a state agency.

32. COIA: Prohibited Contracts False. COIA provides numerous exceptions that might allow Board members to have a financial interest in a contract with the Commonwealth. The exceptions are highly situation specific and are typically conditioned on the member refraining from participating in any way in the letting of the contract and affirmatively disclosing that disqualification as a matter of public record. Contracts may also be permissible for small purchases (under $500) and for employment with other state agencies.

33. COIA: Personal Interest in a Transaction A personal interest in a transaction exists when a Board member has a personal interest in a property, business or governmental agency that is either a) the subject of or b) may realize a reasonably foreseeable direct or indirect benefit or detriment as the result of action on a matter under consideration by the Board or the University itself The definition of a personal interest in a transaction includes individuals or businesses that a Board member or member of her immediate family represents or provides services to.

34. COIA: Personal Interest in a Transaction True or false: A Board member may participate in the Board’s consideration of a transaction where the party to the transaction is a client of her firm if she does not personally represent or provide services to such client.

35. COIA: Personal Interest in a Transaction True, provided that the Board member declares her interest in the transaction in accordance with strict statutory requirements. Compliance with similar declaration requirements also allow a Board member to participate in transactions that affect her only as a member of a business, profession or group of three or more people whose members are affected.

36. COIA: Personal Interest in a Transaction A member must disqualify himself from participating in any transaction that has application solely to property or a business or governmental agency in which he has a personal interest or which is a subsidiary thereof. The disqualification must be recorded in the public records of the Board. A disqualified Board member shall not vote or otherwise act on behalf of the Board in the transaction, shall be prohibited from attending any portion of a closed meeting discussing the transaction, and shall not discuss the transaction with other Commonwealth officers or employees at any time.

37. COIA: Filing Requirements Upon taking office, Board members are required to file a disclosure form of their personal interests with the Secretary of the Commonwealth. The financial disclosure form must be updated annually on or before January 15.

38. COIA: Attorney General Advisory Opinions Board members with questions as to whether they have a conflict prohibited by COIA may seek an advisory opinion from the Attorney General by submitting a written request that fully discloses all relevant facts. A Board member will not be prosecuted for a COIA violation if the alleged violation results from his good faith reliance on a written opinion of the Attorney General.

39. FOIA & COIA Questions?