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County board’s closed sessions violated FOIA

Where a county Board of Supervisors met in closed session and discussed the contents of an ad to replace the county attorney, and also discussed alternatives to the current county attorney set up, the board violated the Virginia Freedom of Information Act. This discussion, and any decision on the criteria for employment, should have been made in open session.

Overview

Petitioner Bragg complains that the Rappahannock County Board of Supervisors went into closed session at five board meetings between June and September 2016. In each case, the board conducted an open meeting, then went into closed session after a vote, and then certified that only matters exempted from open meeting requirements were discussed during the closed sessions.

Petitioner alleges the motions to close the meetings were not properly made, that she was improperly excused, that matters were discussed in closed session in violation of FOIA, and that the motions certifying compliance were false.

Petitioner seeks declaratory and injunctive relief, imposition of fines on the supervisors, and costs and attorney’s fees.

Discussion

A review of respondent’s exhibits shows that the board “expressly followed” the Virginia Code’s requirements to go into closed session. Petitioner alleges she was “ejected” from the meeting before any motions were read or voted on but the “weight of the evidence is to the contrary.”

The court finds that matters were discussed in closed session that were not exempt from open meeting requirements. At the closed session in June 2016, the county attorney announced his retirement. The board’s receipt of this information did not violate FOIA. However, at this session “or perhaps in more detail at the following meeting in July,” the board discussed alternatives to the county attorney set up. Respondent claims this was “legal advice” or discussion about “prospective candidate for employment.”

But the code suggests that discussion must be of specific candidates, not candidates in general. “While the County Attorney clearly could discuss his opinion regarding the various ramifications of criteria of employment under the auspices of legal advice, the court does not find that discussion by the Board, or a decision could be made, on this criteria without going into open session.”

The county attorney “was adamant in testifying” that no votes were taken in closed session. The court accepts this but also finds that the board gave the staff “a tacit grant of permission to allow the criteria of the job to be established by staff.” The board’s action “was not exempted from the Freedom of Information Act.”

Thus, the motions certifying FOIA compliance “coming out of closed session were not 100% correct in identifying their actions.” But no civil penalties will be imposed on board members because of several factors: good faith reliance on the county attorney’s advice, “no ulterior motives, no monetary harm,” a belief that the recommended form of advertising would be cost-effective, “disclosure of procedures during litigation, [and] no evidence of repeat violations.”

The court enjoins any further discussions of attorney hiring in closed session for 10 years. Petitioner’s motion for attorney’s fees and costs will be scheduled.

Bragg v. Board of Supervisors, Case No. 16-180. March 5, 2020; Rappahannock Cir. Ct. (Parker). David L. Konick, Arthur L. Goff, Michael T. Brown for the parties. VLW 020-8-017, 4 pp.

VLW 020-8-017