General Government Bills to Watch

January 20, 2022

Governmental Immunity

HB 609 (Bourne) – This bill, which is very detrimental for localities, creates a civil cause of action for the deprivation of any rights, privileges, or immunities pursuant to the constitutions and laws of the United States and the Commonwealth due to the acts or omissions of either a public employer or its employee and provides that a plaintiff may maintain an action to establish liability and recover compensatory damages, punitive damages, and equitable relief against the public employer and its employee. The bill provides that sovereign immunity is not a defense to such an action. The bill further provides that public employers owe a duty of reasonable care to third parties in the hiring, supervision, training, retention, and use of their employees and that a person who claims to have suffered injury or sustained damages caused, in whole or in part, by a breach of this duty may maintain an action to establish liability and recover compensatory damages, punitive damages, and equitable relief against such public employer.

HB 384 (Davis) Right of state and local Employees; freedoms of conscience and expression – This bill seeks to protect state and local government employees from being required to take actions incompatible with their deeply held beliefs, values, or conscience and protects them from being penalized for expressing opinions in opposition to or approval of official government policy.

Conflict of Interests

HB 626 (Roem) – This bill creates new and more stringent land use disclosure requirements for certain local government officials. These requirements apply to the governing body, the planning commission, and the board of zoning appeals in any proceeding before each such body involving an application for a special exception or variance or involving an application for amendment of a zoning ordinance map, which does not constitute the adoption of a comprehensive zoning plan, an ordinance applicable throughout the locality, or an application filed by the governing body that involves more than 10 parcels that are owned by different individuals, trusts, corporations, or other entities. Members of these public bodies shall, prior to any hearing on the matter or at such hearing, make a full public disclosure of any business or financial relationship that such member has, or has had within the 12-month period prior to such hearing. Business or financial relationship is defined in the bill and includes the receipt by the member, or by any person, firm, corporation, or committee in his behalf, from the applicant in the case or from the title owner, contract purchaser, or lessee of the subject land, except, in the case of a condominium, with the title owner, contract purchaser, or lessee of 10 percent or more of the units in the condominium, or from any of the other persons above specified, during the 12-month period prior to the hearing in such case, of any gift or donation having a value of more than $100, singularly or in the aggregate. If at the time of the hearing in any such case, such member has a business or financial interest with the applicant, that member shall, prior to any hearing on the matter or at such hearing, make a full public disclosure of such a business or financial interest or employee-employer, agent-principal, or attorney-client relationship and shall be ineligible to vote or participate in any way in such case or in any hearing thereon.

HB 216 (Simonds) and SB 57 (Locke) – These bills exempt from the definition of gift, tickets and registration or admission fees to an event that are provided by an agency to its own officers or employees for the purposes of performing official duties related to the officer’s or employee’s public service.

SB 224 (McPike) Local Lobbying – This bill creates a new requirement of registration for individuals who lobby local government officials. The bill requires any individual who is compensated to influence or attempt to influence a local government action through oral or written communication with a local government officer or employee to provide written notice of his status and a $25 fee to the clerk of the governing body of the officer’s or employee’s locality. The bill exempts from this requirement (i) certain executive and legislative officials and employees, (ii) local government employees or officers acting in their official capacity, (iii) contractors or employees of a contractor performing services for the local government, and (iv) an attorney clearly identified on a land use application. Failure to provide notice is a Class 1 misdemeanor.

Public Notice

HB 167 (Ransone) Publication of notice by localities –VACo supports this bill, which provides that in any instance in which a locality has submitted a correct and timely notice request to such newspaper and the newspaper fails to publish the notice, or publishes the notice incorrectly, such locality shall be deemed to have met the appropriate notice requirements so long as the notice was published in the next available edition of a newspaper having general circulation in the locality.

Freedom of Information Act

HB 150 (March) Posting Minutes – This bill requires, with certain exceptions outlined in the bill, any local public body subject to the provisions of the Freedom of Information Act to post meeting minutes on its official public government website, if any, within seven working days of final approval of the minutes. The bill provides that if a local public body does not own or maintain an official public government website, it shall make copies of all meeting minutes available no later than seven working days after the conclusion of a meeting at a prominent public location in which meeting notices are regularly posted, at the office of the clerk of the public body, or, in the case of a public body that has no clerk, at the office of the chief administrator.

HB 154 (March) Public Database – This bill requires the establishment of a publicly available, centralized database for all public records. All public bodies will be required to transfer any public records in its possession to the database. The provisions of the bill that establish the central public records database shall become effective on July 1, 2023, and the provisions of the bill requiring every public body to submit its public records to VITA for inclusion in the central public records database shall become effective on January 1, 2024.

HB 307 (Freitas) – Provides that a public body subject to the Virginia Freedom of Information Act shall make all reasonable efforts to supply records requested by a citizen at the lowest possible cost. The bill also requires a public body to notify the requester in writing of any estimated costs for the supplying of requested records prior to conducting a search for such records.

HB 331 (Krizek) – Adds a requirement that a request for public records made pursuant to the Virginia Freedom of Information Act shall be made in writing and sent by the requester to the public body by registered mail, certified mail, or any other similar first-class mail tracking method used or approved by the United States Postal Service.

HB 444 (Bennett-Parker) and SB 214 (McPike) – VACo supports these bills amending existing provisions concerning electronic meetings by keeping the provisions for electronic meetings held in response to declared states of emergency, repealing the provisions that are specific to regional and state public bodies, and allowing public bodies to conduct virtual public meetings under certain circumstances in non-emergency times.

HB 493 (Mullin), HB 734 (Bell) and HB 890 (Kilgore) – All these bills make changes to the provisions of the Freedom of Information act dealing with disclosure of law-enforcement and criminal records, limitations.

HB 599 (Roem) – VACo opposes this bill, which changes FOIA policy in three major ways. First, it mandates that each person in the Commonwealth including every member of a news entity receive 8 free hours of FOIA requests per month free of charge. It provides a per hour cap on fees charged on any request after the 8 hours of free monthly requests. It also provides that a public body may petition the appropriate court for relief from the hourly fee cap. Finally, the bill requires a public body to post on its website or otherwise publish a written policy (i) explaining how the public body assesses charges for accessing or searching for requested records and (ii) noting the current fee charged, if any, by the public body for accessing and searching for the requested records.

HB 722 (Gooditis) – Allows a local public body that serves in an advisory capacity to gather through electronic means without a quorum of the public body physically assembled at one primary or central meeting location if certain conditions regarding notice and public participation are met.

HB 980 (Williams Graves) – This bill adds email addresses as information that, when made in confidence to the local governing body, with respect to complainants in local investigations are exempt from disclosure under the Virginia Freedom of Information Act. The bill expands the applicability of the exemption to zoning enforcement complaints for all such complaints, not just individual enforcement complaints. The bill also adds local public health and safety, nuisance, and waste and recycling complaints to the list of complainants whose personal information is exempt from disclosure.

Procurement bills

HB 58 (Davis) – Prohibits local governing bodies from requiring contractors to pay wages above those required by federal or state law.

HB 374 (Williams Graves) – Requires all bidders or offerors on construction contracts over $250,000 to submit a list of subcontractors intended to be used and a statement they have investigated them. Public bodies shall review the list and may disqualify a subcontractor if the information has not been submitted.

HB 488 (Freitas) – Prohibits state agencies from requiring contractors in public works contracts from complying with collectively bargained wage provisions.

HB 705 (Keam) – This bill allows localities to use joint and cooperative procurement for construction projects not to exceed $200,000.

HB 818 (Torian) – This bill provides that no state agency shall furnish a final payment to any prime contractor without first ensuring that all subcontractors have been paid in full.

HB 881 (Fowler) – Requires contracts awarded by state or local government agencies to include a clause obligating the contractor to be individually liable for the amount owed to a subcontractor minus any amount for breach of contract.

HB 883 (Byron) – Repeals provisions relating to paying prevailing wage above minimum wage and project labor agreements.

HB 1091 (Wilt) – This bill requires that prior to requiring a contractor on a public works project to enter into a project labor agreement, the public body shall make a written determination that it is in the public’s interest to do so.

SB 258 (Bell) and SB 259 (Bell) – The bills set mandatory bid, performance, and payment bonds at $500,000.

SB 225 (McPike) and HB 429 (Bulova) – These bills provide for all public bodies A/E term contract limits are $10 million for term, $2.5 million per project with three renewals. Term ends at end of year or when limit is reached.

SB 13 (Favola) – This bill allows roofing to be part of an energy performance contract but requires that the roofer be acquired through competitive negotiation.

SB 290 Favola and HB 471 (Subramanyam) – This bill requires state agencies and localities designing new buildings over 5,000 square feet or in large renovations to ensure that such building has a solar ready roof. Does not apply to localities under 100,000 until July 1, 2023. New school buildings or large renovations must be designed to generate more electricity than consumed.

VACo Contact: Phyllis Errico, Esq., CAE