The Augusta County 6 really, really don’t want people to know what goes on behind the scenes when the Board of Supervisors goes into closed session.
That much was made clear at Wednesday night’s board meeting.
As the BOS was moving to go into closed session, South River Supervisor Scott Seaton – the 1 in the 6-1 in Augusta County – asked the county attorney, James Benkahla, if it was OK for him to take notes during that closed session.
The background there: Seaton was censured last year for recording two years of closed sessions of the board, he said to help his note-taking, and the AC6 set into motion at its reorganization meeting last week a new rule that would formally bar recording of closed sessions in the hereafter.
Remarkably, Virginia state law does not require either recordings or minutes of closed sessions in its Freedom of Information law, which, you can understand, can make it hard, if not impossible, for citizens and the local media to ensure that public bodies aren’t in fact using closed sessions to discuss business that should be done in front of the public.
We just have to take their word for it.
This is something that needs fixing.
Benkahla answered Seaton, on the question about taking notes, that “it would be up to the board, I don’t, there’s no rule.”
Seaton then pressed the county attorney on a point that an outside counsel, Rosalie Pemberton Fessier, who is representing the county in two suits brought to challenge the legality of a March 20, 2023, closed session, has tried to raise regarding the recordings, contending that the recordings were criminal.
“The fact that Dr. Seaton made a secret recording of the closed session does not constitute a waiver or otherwise change the confidential nature of the record itself. Virginia’s wiretap statute applies to the interception or use of oral or electronic communications by private citizens as well as law enforcement,” Fessier wrote in a Dec. 28 legal brief submitted in the cases.
But the state code section cited by Fessier in her brief also makes clear that “(i)t shall not be a criminal offense under this chapter for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception,” a point that Benkahla, at Wednesday’s BOS meeting, conceded.
“It’s not a violation of Virginia’s criminal wiretap statute that if a party, and I’m not Commonwealth’s attorney, this is my interpretation, if a party to that conversation, if a person recording is a part of that conversation, it just means it’s not a crime,” Benkahla said.
You could tell that he hated having to give in on that.
“It doesn’t give you permission to record. That’s not an affirmative statute that gives you permission to record everywhere,” Benkahla said. “The minutes, this board is not required to even have a record of discussions in closed meeting. So, minutes are official records that the board, if they choose to have minutes of the closed meeting, they can, but again, it doesn’t give anybody an affirmative right to recording in closed session.
“Where the General Assembly has given an affirmative right is for the public to record in open meetings, and anybody, for that matter, to record and have recording devices in public meetings. They have affirmatively done that. But there’s nothing in the code that gives someone the affirmative authority to record in closed meetings, and I believe the board is, in my opinion, within its rights,” Benkahla said.
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Chris Graham
