Ten days ago, the City Council of Manassas (an unlikely war-zone for Virginia’s creeping siege on freedom of choice, at a whopping 40,000 residents) tried to continue its stealthy plans to close an abortion clinic. Following the road-map laid out by the City of Fairfax, and unable to attack the clinic directly, they are using the one form of law that any local elected official can tell you trumps the Code of Virginia, the constitution of the Commonwealth, and the United States Bill of Rights: the city zoning ordinance.
In a “special meeting” held February 3, the council heard a report from their staff on options to update the entire ordinance. Seems like the top-line items would be use categories, density limits, proximity restrictions, and so on, as that’s what a zoning ordinance is for. But, as Fairfax City found out, you can use it to close an abortion clinic, if you change the definition of “medical care facility” to include that clinic. That lets the government impose collateral regulations, like special permits, enhanced parking requirements, and so on, on a business, until it just can’t meet them, and has to close its doors. It is big government at its worst, gaming the law to get a result it wasn’t supposed to be able to reach. Now, Manassas is trying the same trick. To see how grimly determined they are to get away with it, you have to go back a few days, to a meeting of the City Council’s Land Use Committee on January 23. The meeting convened at 5:30 pm. Five minutes later, it went into closed session. That’s where the ground-work for the council’s attack was laid, off the record, and out of the public’s view. Here’s the excerpt from the minutes of the meeting:
“Chairman Way moved at 5:35 pm that the Land Use Committee of the City Council convene in closed session to discuss subjects in accordance with the amended Freedom of Information Act, Virginia Code Sec. 2.2-3711 Paragraph A (7) Consultation with legal counsel employed or retained by a public body regarding specific legal matters concerning medical facilities requiring the provision of legal advice by counsel for which the Virginia Freedom of Information Act permits discussion in closed session.”
How can they do that? Aren’t meetings of government bodies supposed to be open the public? Well, they are, unless the body invokes one of the exceptions allowed by the Freedom of Information Act. Here, it appears that they did. They referred specifically to Virginia Code Sec. 2.2-3711 Paragraph A (7). They even follow that with a kind of label, apparently from the cited Paragraph A(7), complete with capitalization: “Consultation with legal counsel employed or retained by a public body regarding specific legal matters concerning medical facilities…” Only, that isn’t what it says. Here’s Paragraph A(7), in full:
“Consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body; and consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel. For the purposes of this subdivision, ‘probable litigation’ means litigation that has been specifically threatened or on which the public body or its legal counsel has a reasonable basis to believe will be commenced by or against a known party. Nothing in this subdivision shall be construed to permit the closure of a meeting merely because an attorney representing the public body is in attendance or is consulted on a matter.”
There’s no exception for consultation “concerning medical facilities.” Indeed, the last line of the paragraph makes it clear that merely consulting their attorney is not grounds for closing the meeting. But, it is equally clear what was really going on. They were discussing how to bring the city’s abortion clinic under the definition of “medical care facility,” and didn’t want anyone to know how they were going to do it. In the slightly more open meeting (held in a side room and not sent by video on the city’s Web site), the key phrase in all this came up again. You can see it on the slide-show the city staff gave to the council: Right there, in the middle of top-level issues any zoning ordinance update would typically include, on a short list of three items, is “Medical Care Facilities.” Just like Fairfax City used. Here’s a bit more detail, though the slides are, in slightly different format, in the agenda that includes the January 23 minutes:
Lest anyone doubt what’s going on, anti-choice activists were present in the small room you see in that first picture. Council-member Marc Aveni, an established anti-choicer, went directly to meet with them after the evening’s meeting was ended. (The council decided, over Aveni’s objections, to take a slow approach to updating the ordinance, rather than jump ahead to individual items as he would have preferred.)
If you are pro-choice, this should be a sadly familiar sequence. A local government with an anti-choice majority literally changes the definitions in order to regulate out of existence a clinic that it cannot legislate out of existence. If you are pro-transparency, this should infuriate you. A local government that is too cowardly to discuss a definition on the record illegally invokes a privacy exception so it can lay its plans behind closed doors. If you are anti-choice, maybe that doesn’t bother you. But will you feel the same way if say, you own a farm and the government decides to discuss the definition of “animal unit” behind closed doors? What if you own the only farm in town? Might that not seem like something you’d want on the record? Sure, if you sue and the case goes to court, everyone, even governments, get to talk to their lawyers privately. But this isn’t a litigation, nor even a “specific legal matter.” This is a definition. If a government can shut the public out over that, God save us when they start defining words like “citizen” and “freedom.”
What the City of Manassas did on January 23 wasn’t just illegal. Any free citizen should know that it was wrong. Whether your are pro-choice or not, government in Virginia behind closed doors is government against Virginians. Thousands of activists on both sides of the choice debate are brave enough to stand up and be counted, out where we can see them.
Why isn’t the City Council of Manassas willing to do the same?