City Council's Process for Filling Ward 3 Seat Questioned
Virginia Code states that governing bodies shall make public application materials for those seeking appointment to vacant seats, City says this code section doesn't apply.
By Adele Uphaus
MANAGING EDITOR AND CORRESPONDENT
Email Adele
The process Fredericksburg City Council is following to fill the vacant Ward 3 seat could conflict with state code—especially with a provision added last year that states that governing bodies must publicly announce the names of those being considered to fill a vacant seat at least seven days before the appointment is made.
At City Council’s January 28 meeting, Mayor Kerry Devine announced that council would hold a closed session that evening to narrow the list of candidates who have applied to fill the Ward 3 seat vacated by Tim Duffy late last year from 14 to “about four or five.”
Council would hold closed interviews with those selected on February 4 and then announce and seat the person to be appointed at the February 11 meeting, Devine said.
While Virginia Code section 24.2-228 states that the remaining members of a local board or body “may” appoint a qualified voter to fill a vacant seat, it also states that the board or body “shall,” at least seven days before making such an appointment, “hold a public meeting … announc[ing] 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 public meeting requirement and the requirement to make application materials available were added to Virginia Code last year by House Bill 69.
Delegate David Bulova, who introduced the bill, told a House of Delegates subcommittee that the intent of the bill was to “[provide] a little bit of transparency and sunshine to the process of making interim appointments when there’s a vacancy in a local governing body.”
“Currently, the code allows those remaining members to appoint an interim member. That’s certainly necessary in order to keep operations of governing, but when you think about it, it’s one of the most undemocratic things you can think of, right?” Bulova said at the January 29, 2024, meeting of the Election Administration subcommittee of the House Committee on Privileges and Elections. “I was surprised that there is nothing in the code that provides guidance with respect to prior announcement of who might be appointed.”
Bulova said he was introducing the bill in response to recent examples in Frederick, Chesterfield, Isle of Wight, Roanoke, and Loudoun counties in which the governing body appointed a representative without giving citizens of the election district advance notice of who was being considered or a chance to weigh in.
The Privileges and Elections subcommittee voted to advance HB 69 by a vote of 21-to-1, with Chair Marcia Price calling it “a great transparency bill.” It was then approved unanimously by both the House of Delegates and Senate and signed into law by Governor Glenn Youngkin in March of 2024.
In response to concerns raised by Fredericksburg residents last week, City Attorney Kelly Lackey said in an email which was shared with the Advance that the process outlined by section 24.2-228 only applies “if there are no other statutory or charter provisions for filling a vacancy in the office.”
She referenced Fredericksburg’s Charter, which mirrors the language found in Virginia Code but without the language added last year by Bulova’s bill.
Lackey cited Virginia Code section 24.2-225 to support the statement that state code does not supersede the city’s charter. However, the same section goes on to say that state code that “specifically override[s] other statutory or charter provisions shall prevail.”
In a conversation with the Advance, Megan Rhyne, executive director of the Virginia Coalition on Open Government, said, “I can’t imagine a charter being able to override state code, especially when it doesn’t conflict.”
“Otherwise, what is the point of state law?” she questioned.
Lackey also cited the Virginia Freedom of Information Act’s exemption for “personnel records” to explain why council is not releasing candidate applications and resumes, as well as a 2004 Virginia FOIA Advisory Council opinion finding that applications and resumes are exempt from disclosure.
However, Rhyne pointed to a 2022 Virginia Supreme Court decision finding 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 December of 2024, the Virginia Court of Appeals cited this decision in its conclusion that disclosure of materials such as a resignation letter and complaints about an employee would not be considered an “unwarranted invasion of personal privacy.”
Rhyne noted that resumes are often posted publicly. “I don’t know how you make the argument that a resume meets that definition of an unwarranted invasion of personal privacy,” she said.
She also added that all exemptions provided by Virginia’s FOIA laws are discretionary, meaning that governing bodies and boards are not required to use them, but choose to use them.
Local Obituaries
To view local obituaries or to send a note to family and loved ones, please visit the link that follows.
Support Award-winning, Locally Focused Journalism
The FXBG Advance cuts through the talking points to deliver both incisive and informative news about the issues, people, and organizations that daily affect your life. And we do it in a multi-partisan format that has no equal in this region. Over the past year, our reporting was:
First to break the story of Stafford Board of Supervisors dismissing a citizen library board member for “misconduct,” without informing the citizen or explaining what the person allegedly did wrong.
First to explain falling water levels in the Rappahannock Canal.
First to detail controversial traffic numbers submitted by Stafford staff on the Buc-ee’s project
Our media group also offers the most-extensive election coverage in the region and regular columnists like:
And our newsroom is led by the most-experienced and most-awarded journalists in the region — Adele Uphaus (Managing Editor and multiple VPA award-winner) and Martin Davis (Editor-in-Chief, 2022 Opinion Writer of the Year in Virginia and more than 25 years reporting from around the country and the world).
For just $8 a month, you can help support top-flight journalism that puts people over policies.
Your contributions 100% support our journalists.
Help us as we continue to grow!
This article is published under Creative Commons license CC BY-NC-ND. It can be distributed for noncommercial purposes and must include the following: “Published with permission by FXBG Advance.”
I shared this on social media and also wrote to the four members I personally voted for (Mayor Devine, at-large members Mackintosh and Holmes, and Ward 2 member Gerlach) and asked them to delay the appointment by one week in order to comply with the new language in the Virginia code. I also added: * FOIA laws were not created to protect public bodies from scrutiny but rather to ensure that public business is conducted in the open. *
"A lack of transparency results in distrust and a deep sense of insecurity." -the Dalai Lama