For years, Virginia local government attorneys believed that an absolute legislative privilege attached to reports and statements by staff and others to the elected officials at a meeting of a local governing body.

Legislative bodies like our local elected boards and councils should have an absolute privilege for good reason. Frank advice and reports from staff, and unconstrained comment from the public is important for our representative democracy. Dishonesty, error or even mean-spirited accusations can sometimes be an unfortunate part of the noise of democracy, just as honesty, truth and positive and well-meaning comments can be. Public policy suggests that letting the legislature weigh all the information and act in the best interests of its citizens is better than the legislature receiving half of the story from staff or the public for fear of a lawsuit.

Apparently, Virginia local government attorneys were right. But not entirely.

Isle of Wight County v. Nogiec Decision

In a recent opinion handed down on January 13, 2011 by the Virginia Supreme Court in the case of Isle of Wight County v. Nogiec, the Court assumed without deciding that a local elected body had an absolute legislative privilege “when it is creating legislation,” but held that no absolute privilege exists when the governing body is acting “in its supervisory or administrative capacity.” In the latter case, only a qualified privilege exists, which can be overcome by allegation and proof of malice.