Home All of the legal issues for Augusta County with the March 20 BOS closed session: Analysis
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All of the legal issues for Augusta County with the March 20 BOS closed session: Analysis

Chris Graham
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The Augusta County Board of Supervisors, according to one of its members, illegally went into closed session on March 20 to discuss the resignation of Steven Morelli, who we later learned apparently stepped down from his post as the elected South River District supervisor as a result of unspecified sexual-harassment allegations.

Because we know that they discussed Morelli, thanks to a revelation from the board’s chairman, Michael Shull, at a July Board of Supervisors meeting, you have to wonder, why are county leaders still fighting a Freedom of Information Act request to release a copy of a recording of the meeting?

“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,” South River Supervisor Scott Seaton wrote in an email to AFP last week.

The recording of the March 20 closed meeting, made by Seaton, is the subject of a court action challenging the rejection of a FOIA request filed by AFP that will be heard in Augusta County General District Court on Tuesday, Sept. 5.

According to the official minutes of the March 20 meeting, the BOS called a closed session citing the personnel exemption under Virginia Code section 2.2-3711 (A)(1) – the minutes spelling out that the exemption would be “discussion, consideration or interviews of (a) prospective candidates for employment, or (b) assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of specific employees.”

Of note here is that the motion to go into closed session was specific to the point of the discussion being about “specific employees.”

The code section cited actually allows, more broadly, closed-session discussions of “specific public officers, appointees, or employees of any public body,” and a 2003 advisory opinion from the Virginia Freedom of Information Advisory Council tells us 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.”

The motion made by the BOS to go into closed session, for some reason, did not cite “specific public officers,” just “specific employees.”

This was likely just an oversight on the part of the county attorney, but there have been questions raised regarding whether the Augusta County Board of Supervisors has the statutory authority to ” censure, reprimand or otherwise discipline a fellow member.”

A second issue here: Morelli had already resigned his office before the closed meeting.

Meaning, it would seem to stand to reason, that the board could no longer “censure, reprimand or otherwise discipline” Morelli in his capacity as a public officer, because he was no longer a public officer.

The same 2003 FOI Council advisory opinion, which the county’s FOIA officer, Jennifer Whetzel, the deputy county administrator, cited in an email to AFP backing the county’s decision to deny our FOIA request, details why we have FOIA laws on the books in the first place.

“It is important to consider the public policy behind the creation of exemptions for certain public records and meetings generally. In no instance are the exemptions created purely for the convenience of the public body, or to allow a public body to keep somewhat embarrassing or sensitive issues out of the public light. Instead, each of the records and meetings exemptions was enacted to benefit the public in some way,” the 2003 advisory opinion informs us.

It is no doubt embarrassing to Augusta County that one of its members may have been accused of sexual harassment – again, we only know this to have been the subject of that March 20 discussion because the board’s chair, months later, said as much in a public setting.

The cat is already out of the bag there, thanks to the chair.

Virginia’s FOIA law makes clear that whatever was said behind those closed doors on March 20, no matter how embarrassing it might be, however sensitive it might be, should have been said in a public forum.

This is what our legal fight boils down to.

The board seems to have used the personnel exemption under FOIA to provide cover for a discussion of a topic that could be seen as embarrassing for the county.

It did so sloppily – with a poorly-worded motion that wouldn’t have covered Morelli even if he hadn’t yet resigned, because the motion didn’t include “specific public officers.”

And even that point is rendered moot by the fact that Morelli wasn’t, at the time of the meeting, a “public officer,” because he had already resigned his seat, and at the time of the meeting was thus a private citizen.

A board of supervisors can’t meet behind closed doors to discuss the activities of former board members.

The Augusta County Board of Supervisors, back on March 20, did just that.

A recording of the meeting just so happens to exist.

That recording needs to be made public.

Then we can get to the question, what did they talk about that day that they are fighting so hard to keep us from knowing?

Chris Graham

Chris Graham

Chris Graham is the founder and editor of Augusta Free Press. A 1994 alum of the University of Virginia, Chris is the author and co-author of seven books, including Poverty of Imagination, a memoir published in 2019, and Team of Destiny: Inside Virginia Basketball’s Run to the 2019 National Championship, and The Worst Wrestling Pay-Per-View Ever, published in 2018. For his commentaries on news, sports and politics, go to his YouTube page, or subscribe to his Street Knowledge podcast. Email Chris at [email protected].