Charlottesville City Council has adopted a revised version of the “continuity of government” ordinance to avoid potential legal trouble.
“This ordinance is intended to clean things up a little bit that were sort of thrown up in the air by a recent Supreme Court case,” said Andrew McRoberts, an attorney with the firm Sands Anderson.
That case is Berry v. Fairfax Board of Supervisors in which the Virginia Supreme Court ruled that locality did not have the authority to adopt a new zoning code at an electronic meeting in March 2021.
“It fundamentally could potentially change the law and say potentially because the case is not yet final,” McRoberts said. “It’s under reconsideration. It may be affected by either judicial or perhaps by legislative processes at the state level.”
McRoberts said the case has introduced a lot of uncertainty about whether other actions taken at online meetings may be legally suspect, including recommendations of the Planning Commission.
“The answer is they acted in good faith, they acted pursuant to your approvals in your continuity of government ordinances and they acted pursuant to recognized exemptions under [the Freedom of Information Act].”
McRoberts recommended adopting a new ordinance to state clearly that Council had the authority to take votes during the period. He said the underlying code that allows emergency rules is broad and gave Council a wide berth.
“The intention is to try to the best we can protect the actions of the Council and the other public bodies took during the pandemic in good faith to try to keep government moving,” McRoberts said.
In response to a question from Councilor Brian Pinkston, McRoberts said localities take actions retroactively frequently. One example is the real property tax rate which is voted upon in the spring but applies to the calendar year. But he said there are limits.
“Retroactivity for example can’t act unconstitutionally,” McRoberts said. “It can’t create an ex post facto law and put people in criminal jeopardy for things they’ve already done. It cannot unsettle vested rights.”
Council voted unanimously and Mayor Lloyd Snook expressed this caveat.
“While I am a lawyer on Council, I am not a lawyer for Council and I trust Mr. McRoberts and the others who have been working on this issue to steer us right,” Snook said.
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