Looks like we’re going to have to take Augusta County to court to get access to a recording of a March 20 closed session of the Augusta County Board of Supervisors that the supervisor who recorded the meeting says should be made public.
A hearing date has been set for Tuesday, Sept. 5, at 11:30 a.m. in Augusta County General District Court on our petition for a writ of mandamus to compel the county to turn over the recording, which Wayne District Supervisor Scott Seaton, who made the recording, feels should be released.
“It is my opinion that most of the 3/20/23 meeting should be released as I don’t think the latter portion of the meeting falls under personnel exemption,” Seaton wrote in an email to AFP on Wednesday.
The county, through its Freedom of Information Act officer Jennifer Whetzel, the assistant county administrator, denied our request for a copy of the recording of the March 20 closed meeting in an email response to our request sent to us on Monday, asserting that “all of the records requested are exempt from disclosure under the Virginia Freedom of Information Act,” citing FOIA code sections relative to the personnel exemption and the economic development exemption.
We’re challenging the county on this based on what we have come to know was discussed in the closed session through public comments from the BOS chair, Michael Shull.
Shull, unwittingly, it would seem, confirmed at the July 13 Board of Supervisors meeting, as the board was discussing a resolution of censure against Seaton, that the matter of the resignation of Steven Morelli from the BOS had been discussed at length by board members in the March 20 closed session.
Ahead of that revelation from Shull, there had been rumors floating around the county for several weeks about why Morelli, who was elected to represent the South River District on the Board of Supervisors in 2020, stepped down, focused on sexual harassment allegations against Morelli as the rumored reason.
Shull, spelling out at the July 13 meeting why he was supporting the motion on the table to censure Seaton, referenced how “several board members were asked about one case of sexual harassment, and I was asked that when I came right over here, several other board members were, too. And I thought, did they have a tin can against the wall listening to us there? How was that knowledge disclosed that quickly?”
The board would go on to vote 6-1, with Seaton the lone no vote, to censure Seaton at that July 13 meeting, basing its censure vote on the majority’s allegation that Seaton had shared details of the March 20 closed meeting to the press.
But in fact, what Seaton did was reach out to members of the local media ahead of the board’s regularly scheduled March 20 staff briefing to share the message that we should pay close attention to the briefing because “something will come up” that our readers should be aware of.
The something that came up was the resignation of Morelli, which he formally submitted to the BOS on the morning of March 20.
The board voted to go into closed session during the afternoon staff briefing, citing the personnel and economic development exemptions, and that closed session would stretch on more than two hours before board members returned to open session, and County Administrator Tim Fitzgerald read a brief statement acknowledging Morelli’s resignation.
After the censure of Seaton, and revelations that Seaton had made recordings of other closed sessions of the board, the BOS called a special meeting for Aug. 2 to vote to request that Seaton turn over his recordings.
AFP then filed a request under the Freedom of Information Act on Aug. 3 to gain access to the recording of the March 20 closed session, after Seaton had asserted publicly that he felt the contents of that closed meeting should be made public.
The county, through Whetzel, asked for an extension of the legally-mandated five-working-day response to our FOIA request on Aug. 10, then on Monday, denied our request, asserting that the meeting was exempt from disclosure under Virginia law.
In an email explaining that decision, Whetzel cited a 2003 advisory opinion from the Virginia Freedom of Information Advisory Council that concludes that “(i)f a public body has the authority to censure, reprimand or otherwise discipline a fellow member of the elected body, then it may exercise this exemption to discuss the performance and subsequent discipline of the member.”
“Given this guidance, requests for information related to closed session calls whereby a board member is discussed would be withheld,” Whetzel wrote.
Our response to Whetzel:
“The person who was discussed at the 3/20/2023 board meeting had resigned his seat on the board. Mr. Morelli had resigned his seat the morning before the meeting, several hours ahead of the closed meeting.
“Therefore, the board was not meeting to discuss a board member. It was meeting to discuss a former board member.
“This would not be protected under FOIA.”
This will be the crux of the matter for the judge to decide on Sept. 5.
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Chris Graham
