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Ruling clears council
Virginia Supreme Court rules Fredericksburg City Council did not violate Freedom of Information Act

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Date published: 3/6/2004

By ELIZABETH PEZZULLO

E-mails judged not a meeting

An e-mail exchange among members of Fredericksburg City Council did not violate the state's Freedom of Information Act, the Virginia Supreme Court ruled yesterday.

The court unanimously held that e-mail messages that are not almost simultaneous do not constitute a meeting under the FOIA.

The ruling came as little surprise to council members involved in the suit.

"This confirms we operated entirely within the law," said Fredericksburg Mayor Bill Beck. "It's just unfortunate Fredericksburg had to suffer through Mr. [Gordon] Shelton's political vendetta and willingness to waste time and money on a clearly baseless lawsuit."

The court's ruling ends an 18-count lawsuit filed last year against members of the City Council by Shelton, the city's former vice mayor; former City Council candidate Anthony Jenkins; and city resident Patrick Timpone.

The suit charged that some of the councilmen held illegal meetings via e-mail and in person.

Fredericksburg Circuit Judge John W. Scott Jr. threw out 17 of the counts, but found Beck and City Councilmen Scott Howson and Matt Kelly in violation of the FOIA when they exchanged e-mails over a week's time regarding a city appointment to the regional library board. That ruling was overturned by the high court.

State law prohibits three or more members of a public body from holding meetings via "electronic communication," but there had been no previous court rulings dealing with e-mail.

Beck, Howson and Kelly appealed the lower court's decision.

Oral arguments were heard by the seven justices on Jan. 15.

The court's seven-page opinion indicated that three or more elected officials must be assembled or in near-simultaneous communication for the meeting to be illegal.

Given that the e-mail exchange among Beck, Kelly and Howson took place over a week's time, the justices ruled there was no simultaneous discussion, thus no meeting.

"The court ruling indicates instant messaging and chat rooms, which are nearly simultaneous, would be illegal," said Frosty Landon, executive director of the Virginia Coalition for Open Government. "But in this case e-mails occurring at least four hours apart didn't meet the court's test for near-simultaneity."

The court upheld Scott's rulings on other aspects of the case.

It affirmed that council members-elect are not subject to the FOIA and that a gathering by three council members and residents on a street corner to discuss traffic safety was not an illegal meeting.

Councilman Kelly had not taken office at the time of the e-mail exchange.

"The issue of how to regulate e-mail should have been brought to the FOIA [Advisory] Council or the General Assembly, not the courts," Kelly said. "To do so would have brought about the same result without the cost to the city taxpayers."

Shelton was not surprised at the outcome.

"But it doesn't alter the fact that the council members and mayor acted to cut other council members out of debate," he said.

To reach ELIZABETH PEZZULLO: 540/374-5421 epezzullo@freelancestar.com