Electronic Participation Policy

Approved July 6, 2023 to be effective July 2, 2023

Occasions may arise when the Northern Virginia Transportation Commission (“NVTC”) determines it is necessary to hold an all-virtual public meeting or when a NVTC Commissioner is unable to be physically present at a public meeting. Under certain circumstances, the Virginia Freedom of Information Act, Virginia Code Ann. §§ 2.2-3700 et seq., (the “Act”) permits a public body, such as NVTC and its duly appointed committees, to conduct all-virtual public meetings and also permits members of a public body to participate in meetings through electronic means such as telephone and video conferencing. The Act limits the instances in which this may occur and prescribes procedures that must be followed, including adoption of a policy governing electronic meetings. The NVTC Electronic Participation Policy (“Policy”), as hereafter set forth, identifies the instances when NVTC and its duly appointed committees and sub-committees may conduct all-virtual public meetings, including during a declared state of emergency, and when a Commissioner may participate electronically in an in-person NVTC meeting, including NVTC appointed committee and subcommittee meetings, and the procedures that apply.1

Nothing in this Policy should be construed to prohibit the use of audio or audio/visual means to increase public participation at meetings even if no NVTC Commission members are participating electronically. NVTC welcomes the use of electronic means to increase public access to its meetings. The specific requirements and limitations on electronic participation described herein apply only to the members of NVTC holding a public meeting.

Circumstances When Electronic Participation By a Member Is Permitted for In-Person Meetings

A commissioner may participate in an in-person NVTC Commission or NVTC committee or subcommittee meeting through electronic communication means from a remote location that is not open to the public under the following circumstances:

A. A Commissioner who is unable to attend the meeting due to a medical reason:

1. A Commissioner’s temporary or permanent disability or other medical condition that prevents the commissioner’s physical attendance;

2. A medical condition of a member of a Commissioner’s family that requires the Commissioner to provide care and prevents the Commissioner’s physical attendance;

3. The above subsections A.1 and A.2 allows an unlimited number of times a Commissioner can participate electronically due to disability, medical condition or care for a family member.

B. A Commissioner who is unable to attend the meeting due to a personal reason and identifies with specificity the nature of the personal matter. However, a Commissioner may not use remote participation due to personal matters more than two meetings per calendar year or 25% of the meetings held per calendar year rounded up to the next whole number, whichever is greater.

(Example: if NVTC holds 10 or 11 Commission meetings a year, a Commissioner could participate electronically for a personal reason 2.5 or 2.75 times, rounded up to three (3) meetings a year. For NVTC committees and subcommittees that do not have an annual meeting schedule or that do not actually hold each meeting on the schedule, the number of times a Commissioner may participate in a meeting remotely is not readily calculated and should be done only in consultation with the commission secretary).

C. A commissioner whose principal residence is more than 60 miles from the meeting location identified in the required notice for such meeting.

 

Procedural Requirements for Remote Participation By a Member in In-Person Meetings

The term “remote participation” is defined by the Act to mean “participation by an individual member of a public body by electronic communication means in a public meeting where a quorum of the public body is otherwise physically assembled.”

Remote participation by a NVTC Commissioner as authorized above (by A-C) shall be only under the following conditions:

  1. A quorum of NVTC Commissioners is physically assembled at the primary or central meeting location.
  2. NVTC or its committee or subcommittee, as applicable, can make arrangements for the voice of the Commissioner who is participating remotely to be heard by all persons at the primary or central meeting location.
  3. A Commissioner must notify the applicable chair (Commission chair or committee chair), with notification copied to the executive director and commission secretary, on or before the day of the meeting, not later than eight (8) hours prior to the start of the meeting, that such Commissioner is unable to attend and identify the reason in A, B, or C above that prevents physical attendance. The request can be made verbally but should be followed up in writing as soon as possible.
  4. The minutes must reflect that (1) the existence of a disability or medical condition (which need not be disclosed with specificity) of the Commissioner, or of a family member who requires the Commissioner’s care, prevents the Commissioner’s in-person attendance at the meeting; (2) a personal matter, described with specificity, prevents the Commissioner’s in-person attendance at the meeting; or (3) the Commissioner’s primary residence is 60 miles or more from the meeting location. The minutes must also reflect a general description of the remote location from which the Commissioner is participating in the meeting electronically.
  5. After calling the meeting to order and establishing a quorum is physically present, the Commission chair or committee chair, as applicable, will inform the Commission or committee of a Commissioner’s request to participate through electronic means, identify the reason in A, B or C above that prevents physical attendance, and request a motion and second to approve the request. The Commission or committee will vote on the matter. The Commissioner requesting to participate remotely shall not vote on the motion. If the Commissioner’s participation from a remote location is disapproved because such participation would violate the provisions of this Policy or the Act, such disapproval shall be recorded in the minutes with specificity.
  6. A Commissioner’s remote participation must be in accordance with this Policy.

NOTE: As stated above, if a Commissioner’s remote participation is disapproved, the Commissioner may still monitor the meeting by listening or watching by electronic communication means. However, the member cannot be counted as present and cannot participate. The minutes shall reflect the names of Commissioners monitoring a meeting.  In such a situation, as a matter of best practices, the chair should make a statement to inform the public and the other members, such as: “Please observe that [member name] could not attend today’s meeting but is [listening/watching] the meeting by [speakerphone, videoconferencing, or whatever electronic communications means is being utilized]. However, [member name] is only monitoring the meeting and is not counted as present, and cannot make motions, vote or otherwise participate.”

Guidelines for the NVTC Electronic Participation Policy for Remote Participation by a Member in In-Person Meetings

The determination of whether requests by Commissioners to participate in NVTC Commission meetings, as well as committee or subcommittee meetings, from remote locations complies with the NVTC Electronic Participation Policy (“Policy”) shall be made by the NVTC chair or the appropriate committee or subcommittee chair, subject to final approval by the Commission or committee or subcommittee. The following guidelines shall be used by the chair and NVTC or committee or subcommittee in considering and acting upon requests:

  1. This Policy applies to NVTC meetings, including Commission, committee and subcommittee meetings, provided the technology is available to accommodate remote participation.
  2. This Policy shall be applied strictly and uniformly, without exception, to all Commissioners and without regard to the identity of the Commissioner requesting to participate remotely or the matters that will be considered or voted on at the meeting.
  3. Notification of the request to participate electronically shall be provided by the Commissioner seeking to participate remotely to the applicable chair (Commission chair or committee chair), with notification copied to the executive director and commission secretary, at the earliest practicable time, not later than eight (8) hours before the meeting start time. The request can be made verbally but should be followed up in writing as soon as possible.
  4. Individual participation from a remote location shall be approved unless such participation would violate this Policy or the provisions of the Act. If the Commission or committee or subcommittee votes to disapprove the member’s remote participation because such participation would violate this Policy or the Act, such disapproval shall be recorded in the minutes with specificity.
  5. The Commissioner requesting to participate remotely shall provide sufficient specificity as to the nature of the matter as is necessary for the chair, and the Commission or committee or subcommittee, to determine whether the circumstances warrant remote participation.
  6. For purposes of this Policy, a personal matter includes circumstances that prevent a member from physically attending a meeting including personal and business travel.
  7. For purposes of this Policy, a temporary or permanent disability or a medical condition of either a Commissioner or their family member who requires the Commissioner’s care that prevents physical attendance at the meeting should be evident based on the nature of the disability or the condition. Examples include temporary hospitalization or being confined to home, contagious illness or any disability that prevents travel to the meeting location.
  8. Disclosure of specific medical conditions or disabilities, and medical verification of a medical condition or physical disability shall not be required.
  9. More than one Commissioner may participate electronically at the same meeting, as long as a physical quorum is present at the primary meeting location.
  10. Commissioners participating remotely are allowed to fully participate in NVTC Commission or NVTC committee or subcommittee public meetings, which includes but is not limited to making motions and voting.
  11. The Commissioner may participate remotely in a NVTC Commission or NVTC committee or subcommittee public meeting, using all available electronic communication means including telephone and video conferencing. For the purposes of this Policy, “electronic communication” is defined to mean “the use of technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities to transit or receive information.” The definition is applicable to all types of electronic participation described in this Policy.
  12. Remote participation shall be permitted only under circumstances where all attendees at the primary meeting location, including the public, can, at a minimum, hear the remote member. If the means used for participation in the meeting, or other circumstances at the remote location, are disruptive to the meeting, the chair, subject to Commission or committee or subcommittee approval, may deny or withdraw the approval to participate remotely, including during the meeting. While not required, the Commissioner participating remotely is encouraged to monitor the meeting via electronic means to the extent it is available.
  13. NVTC’s commission secretary shall be responsible for ensuring a Commissioner does not participate electronically for personal reasons more than two times per calendar year or 25% of the meetings held per calendar year rounded up to the next whole number, whichever is greater.

 

NVTC All-Virtual Public Meetings

An “all-virtual public meeting” is defined by the Act to mean “a public meeting conducted by a public body (i) using electronic communication means (ii) during which all members of the public body who participate do so remotely rather than being assembled in one physical location and (iii) to which public access is provided through electronic communication means.”

The Act limits the number of times per calendar year NVTC and its committees and subcommittees can conduct all-virtual meetings. NVTC and each of its committees and subcommittees shall not conduct an all-virtual public meeting more than two times per calendar year or 25% of their respective meetings held per calendar year rounded up to the next whole number, whichever is greater, OR consecutively with another of their all-virtual public meeting.

Since there is a limited number of times the Commission and its committees and subcommittees can conduct all-virtual meetings during a calendar year, the Commission and its committees and subcommittees will be strategic in planning for these types of meetings, in order to respond to quorum issues or other factors that could influence being able to hold an in-person meeting (i.e. scheduling conflicts such as jurisdictional budget hearings or holidays close to regularly scheduled meetings, etc.). The Commission and its committees and subcommittees may include planned all-virtual meetings as part of its approved meeting schedule. Throughout the year, the Commission and its committees and subcommittees also reserve the right to change the type of meeting to an all-virtual meeting, as long as the required meeting notification procedures are followed.

NVTC staff, in consultation with the Commission chair or appropriate committee or subcommittee chair, will determine whether a public meeting will be all-virtual prior to posting the meeting agenda. NVTC staff will follow all meeting notice requirements required by the Act to inform Commissioners and the public of any change in the type of meeting (in-person or all-virtual).

If a quorum is determined to be not achievable for a regularly scheduled in-person meeting, the executive director will consult with the chair to discuss if the meeting should be changed to an all-virtual meeting. If an all-virtual meeting is determined to be needed, staff will notify Commissioners and the public at least 72 hours in advance of the meeting. The agenda will be updated with the all-virtual meeting information and will be posted on NVTC’s website.

The all-virtual meeting provisions of this Policy apply to all NVTC public meetings, including the Commission, committees and subcommittees.

Guidelines for All-Virtual Public Meetings

The following guidelines shall be used by the Commission and committee and subcommittee chairs and NVTC staff in conducting all-virtual meetings:

  1. The required meeting notice shall indicate whether the meeting will be an in-person or all-virtual public meeting along with a statement notifying the public that the method by which the Commission or its committee or subcommittee chooses to meet shall not be changed unless the Commission or its committee or subcommittee provides a new meeting notice in accordance with the provisions of the Act;
  2. Public access to the all-virtual public meeting will be provided via electronic communication means;
  3. The electronic communication means used will allow the public to hear all members of the Commission or its committee or subcommittee participating in the all-virtual public meeting and, when audio-visual technology is available, to see the members as well;
  4. A phone number or other live contact information will be provided to alert the Commission or its committee or subcommittee if the audio or video transmission of the meeting fails; the Commission or its committee or subcommittee will monitor such designated means of communication during the meeting; and the Commission or its committee or subcommittee will take a recess until public access is restored if the transmission fails for the public;
  5. A copy of the proposed agenda and all agenda packets and, unless exempt, all materials furnished to members of the Commission or its committee or subcommittee for a meeting will be made available to the public in electronic format at the same time that such materials are provided to members of the Commission or its committee or subcommittee;
  6. The public is afforded the opportunity to comment through electronic means, including by way of written comments, at those public meetings when public comment is customarily received;
  7. No more than two members of the Commission or its committee or subcommittee are together in any one remote location unless that remote location is open to the public to physically access it;
  8. If a closed meeting is held during an all-virtual public meeting, transmission of the meeting to the public will resume before the Commission or its committee or subcommittee votes to certify the closed meeting as required by the Act;
  9. The Commission or its committee or subcommittee will not convene an all-virtual public meeting (i) more than two times per calendar year or 25% of the meetings held per calendar year rounded up to the next whole number, whichever is greater, or (ii) consecutively with another all-virtual public meeting; and
  10. Minutes of an all-virtual public meeting held by electronic communication means will be taken as required by the Act and include the fact that the meeting was held by electronic communication means and the type of electronic communication means by which the meeting was held. If a member’s participation from a remote location pursuant to this subsection is disapproved because such participation would violate the Policy or the Act, such disapproval shall be recorded in the minutes with specificity.

NVTC Electronic Participation During a Declared State of Emergency

The Act allows any public body to meet by electronic communication means without a quorum of the public body physically assembled at one location under certain circumstances. As part of its NVTC Electronic Participation Policy, the Commission and its committees and subcommittees will adhere to § 2.2-3708.2. which reads:

Any public body, or any joint meeting thereof, may meet by electronic communication means without a quorum of the public body physically assembled at one location when the Governor has declared a state of emergency pursuant to § 44-146.17 or the locality in which the public body is located has declared a local state of emergency pursuant to § 44-146.21, provided that:

(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 provide for the continuity of operations of the public body or the discharge of its lawful purposes, duties and responsibilities.

The public body convening a meeting in accordance with this section shall:

  1. Give public notice using the best available method given the nature of the emergency, which notice shall be given contemporaneously with the notice provided members of the public body conducting the meeting;
  1. Make arrangements for public access to such meeting through electronic communication means, including videoconferencing if already used by the public body;
  1. Provide the public with the opportunity to comment at those meetings of the public body when public comment is customarily received; and
  1. 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.

The provisions of this section shall be applicable only for the duration of the emergency declared pursuant to § 44-146.17 or § 44-146.21.

NVTC and its committees and subcommittees shall adopt a resolution at each meeting held by electronic means during a declared emergency finding that the need for the electronic meeting exists based on the nature of the emergency, and that the purposes of the meeting as set forth in the meeting agenda comply with the Act.

 

1 This Policy does not apply to the Virginia Railway Express Operations Board, which is a joint committee of NVTC and the Potomac and Rappahannock Transportation Commission (“PRTC”). A separate policy, approved by NVTC and PRTC, shall apply to the Operations Board.

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