The Augusta County Board of Supervisors appears to have learned an important lesson from its stinging legal defeat in a Virginia Freedom of Information Act case.
You had to pay attention, but if you did, you would have noticed the detailed specificity of the motion by the board to go into closed session at its Monday staff briefing.
Cue Pam Carter, who represents the Pastures District on the Board of Supervisors, who was in possession of the piece of paper with the motion spelled out:
“Mr. Chairman, I move that the Board of Supervisors of Augusta County convene in closed session pursuant to, one, the personal exemption under Virginia Code 2.2-Dash-3711-A1, discussion, consideration or interviews of prospective candidates for employment, assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of specific public officers appointees or employees of any public body, A, boards and commissions, Economic Development Authority and CAPSAW;
“2, the economic development tax exemption under Virginia Code 2.2-Dash-3711-A5, discussion concerning a prospective business or industry or the expansion of an existing business or industry where no previous announcement has been made of its interest in locating or expanding its facilities in the county, A, proposed office space, flex space, storage facilities, manufacturing facilities, utility and mixed use development;
“3, the legal counsel exemption and Virginia Code 2.23711-A7, consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation, where such consultation or briefing and open meeting would adversely affect the negotiating or litigating posture of the public body. For the purpose of this subdivision, probable litigation means litigation that has been specifically threatened or on which the public body or its legal counsel …”
County Attorney James Benkahla interjected here.
“Can I just inter-, it’s actual litigation. It’s going to be, it’s actual litigation,” Benkahla said.
Carter picked up.
“OK, so not probable litigation, but actual?” she said.
“It needs to be actual,” Benkahla said.
“Alright. Nothing in this subdivision shall be construed to permit the closure of a meeting merely because an attorney representing the public body is in attendance or in is consulted on a matter.
“3A, Breaking Through Media LLC, etc., vs. Scott Seaton and Augusta County for the legal counsel exemption under Virginia Code 2.23711-A8, consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel. Nothing in this subdivision shall be construed to permit the closure of a meeting merely because an attorney representing the public body is in attendance or is consulted on a matter.
“A, Breaking Through Media LLC, etc., vs. Scott Seaton and Augusta County.”
If you’ve been following along, this is the aftermath of an Augusta County Circuit Court judge smacking the county’s hand for an illegally-held closed session back on March 20, 2023, in which the Board of Supervisors discussed the resignation of South River Supervisor Steven Morelli, who stepped down amid allegations involving the sexual harassment of county employees.
In a Jan. 11 ruling, Judge Thomas J. Wilson IV held that the board’s motion to go into closed session did not meet the requirements spelled out in the state’s FOIA law, citing a 2020 Virginia Supreme Court decision in Cole v. Smyth County Board of Supervisors, which held that a “general reference to … the subject matter of the closed meeting shall not be sufficient,” and that “this prohibition against ‘general reference[s]’ is an implicit requirement that a motion effectively identify the subject matter to be discussed in the closed session.”
“(F)or the personnel exemption for the closed session, the County simply listed one of the subject matters as ‘Board of Supervisors.’ That statement is too cryptic, is merely a general reference to the subject matter, and does not contain the particularity I believe the statute requires,” Wilson wrote in his ruling.
The county has yet to comply with Wilson’s six-week-old order to turn over a digital recording of the March 20, 2023, closed meeting, which he ruled, in the matter of a separate case filed by AFP, is a public record, because Wayne Supervisor Scott Seaton, who had recorded the meeting for personal note-taking, had turned over copies of recordings that he had made of that and other closed meetings of the BOS to the county.
The Board of Supervisors, on Jan. 24, voted to authorize an appeal of the ruling in the Breaking Through Media case, and on Feb. 14 voted 5-1 to defeat a motion made by Seaton to drop the planned appeal, moments after Benkahla, in response to a question from Seaton, conceded that the appeal was unlikely to be successful at the appellate level.
Because of the specificity in the motion made on Monday to go into closed session, we were able to learn that the board engaged in “consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation” – scratch the “probable” – related to the Breaking Through Media case.
For those keeping score, the closed session lasted approximately one hour.
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Chris Graham
