This is exactly what we were trying to avoid
VCOG asks that Fredericksburg make the resumes of candidates to fill a vacant city council seat be made availabe to the public
Last year, Del. David Bulova carried a bill at VCOG’s request that was aimed at making sure citizens knew the names and qualifications of people who the rest of the board would decide to appoint to a vacancy on the board. These are seats that open up because an elected member has resigned or, God forbid, died.
The person appointed to the empty seat will have the same voting rights as the person he or she is replacing and will be representing the same constituents. If this were an election, everyone would know who the candidate was and what the candidate’s qualifiactions were.
Unfortunately, we had heard too many story of citizens being kept in the dark about who might fill the seat until a decision was announced at a board meeting. Surprise!
So, HB69 amended the section of law dealing with board vacancies, § 24.2-228, and said that when filling a vacancy,
At least seven days prior to making such interim appointment, the body or board shall hold a public meeting in accordance with § 2.2-3707 at which the body or board shall announce the names of all persons being proposed for the interim appointment and shall make available for inspection each person's resume and any other materials required by the body or board.
The bill elicited one “no” vote in subcommittee, a different “no” vote in full committee, then the bill sailed through both chambers unanimously. It made sense: let the public know who will be representing them and what they bring to the table.
And yet…
According to a press release today from the City of Fredericksburg, that new law, well, it doesn’t apply.
[T]his provision [from § 24.2-228] is not applicable to the City because Virginia Code Section 24.2-225 excludes localities subject to charter provisions that separately govern interim appointments.
Fredericksburg’s charter does indeed discuss interim appointments. Fredericksburg’s charter hasn’t been amended since 2009. In that time, § 24.2-228 has been amended four times. (Is it the city’s position that none of those changes apply to them?)
It’s not just Fredericksburg that has a city charter dealing with vacancies. Spot-click on just about any city charter on this page — and quite a few town charters, too — and you’ll see that they have similar provisions. But, if we take Fredericksburg’s position, none of those cities and towns have to follow HB69.
And here’s another rub: Fredericksburg is taking the position that cities with charters like theirs get to ignore HB69, but counties can’t (only three counties have charters).
Staying with this point for just a bit longer, supermacy clauses (those establishing which laws carry more weight) kick in only when competing statutory provisions conflict.
If one says it must be blue, and the other says it must be yellow, those laws conflict and you’d go to various sources to understand how to decide which provision had supremacy. A judge called on to resolve the dispute might ask which statute was created first, or which one is more specific, or maybe the judge would get into the details of the purpose or context.
But if one says it must be blue, and the other doesn’t even mention what color it must be, those statutes do not conflict. They can be read together. It’s called the principle of harmonization.
That’s what’s going on with the Fredericksburg charter (from 2009): it doesn’t say anything about announcing the names of candidates or making resumes available, but HB69 does. They are not in conflict and can (and should) be read together to give effect to the legislative intent.
But let’s just say that the city is right: they don’t have to follow HB69, so they aren’t required to make public the resumes of those people they’re considering for the vacancy. What’s a citizen to do? FOIA. Ask for the resumes for FOIA.
And yet…
Fredericksburg says that even if you FOIA them for the resumes, they’re not going to give them to you because resumes are exempt from disclosure by § 2.2-3705.1(1) as personnel information.
FOIA exemptions are discretionary. They are not prohibited from disclosing the resumes; they are choosing to withhold them.
The Supreme Court ruled in the 2022 case Hawkins v. Town of South Hill that the personnel exemption is limited to information that is "private," where "disclosure would constitute an 'unwarranted invasion of personal privacy' to a reasonable person under the circumstances." In 2024, the Court of Appeals reviewed a trial court's use of that Supreme Court's guidance to conclude that materials like a resignation letter and complaints about an employee were not personnel information because their diclosure would not be an invasion of privacy. Resumes are routinely posted publicly and widely shared.
Why? Why are citizens prevented from knowing about the experience and qualifications of the person who will be representing them on city council?
It’s frustrating for me because this was literally what we were trying to fix with HB69. But my frustration is nothing compared to the frustration citizens in Fredericksburg must feel when their legitimate desire for information about their future representatives (in a representative democracy!) meets a brick wall.
I encourage the city to take a different, more transparent approach to this critically important decision.