Local Legislative Immunity Bill in Virginia Fails

Here's a curiosity relating to local official legislative immunity. According to an article in statehousenewsonline.com on Friday, Virginia state senator Chap Peterson sponsored a bill to give local officials in Virginia legislative immunity. The bill would have added the following provision to the state code, using the U.S. Constitution's "speech or debate" language:

An elected member of a local governing body shall not be compelled by law to be questioned on any speech or debate engaged in by the elected member during the exercise of his legislative powers without leave of court. However, the provisions of this section shall not restrict the power of the local governing body to regulate the conduct of its members.

The impetus for this bill was a suit filed against the town of Vienna, in which the suing party wanted to ask council members why they voted on an application to change an historic district. The court found that the officials were protected by immunity from having to do this. A recent Virginia Supreme Court decision on a charge of defamation,  Isle of Wight County v. Nogiec (Jan. 13, 2011), found that local officials have an absolute privilege with respect to situations "when the legislative body is acting in its legislative capacity — i.e., when it is creating legislation — rather than in its supervisory or administrative capacity," where they have only a qualified privilege. The case involved a communication made by an assistant county administrator to a member of a county’s board of supervisors during a board meeting.

But Sen. Peterson wanted to be sure, and he wanted to cover all the bases, not just defamation. And so did the state senate, barely, since the bill somehow passed the senate by a vote of 20-20. However, the house rejected the bill in a voice vote.

Robert Wechsler
Director of Research-Retired, City Ethics

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