The outside counsel representing Augusta County in its quest to keep a recording of an illegally-held closed meeting of the Augusta County Board of Supervisors under wraps has filed two motions in Augusta County Circuit Court seeking to delay the enforcement of a court order to turn the recording over.
The county, on Wednesday, put on the record a motion to reconsider, which, if granted, would result in an entirely new evidentiary hearing in Augusta County Circuit Court, effectively starting the clock over to where the case was six months ago, and in a separate filing, asked for a stay of the Jan. 11 ruling from Circuit Court Judge Thomas J. Wilson IV pending an appeal of the ruling up the judicial chain.
The sum effect of the two filings is obvious intent on the part of the county to simply delay the court-ordered release of the audio of the March 20, 2023, closed meeting of the Board of Supervisors, in which board members discussed the resignation of South River Supervisor Steven Morelli, who stepped down on the morning of the meeting amid accusations that he had sexually harassed county government employees.
Wilson, in his Jan. 11 ruling in the public records case, ordered the county to turn over the recording of the closed meeting.
The wording of his order was clear: “There is no need for an injunction – I am ordering compliance, which is sufficient,” Wilson wrote.
The county, in the face of that tersely-worded court order, has still not produced the recording, and in its court filings on Wednesday, made it clear that it does not intend to comply with the court order anytime soon.
“There is no showing of any likelihood to prevail on the merits, and indeed there is none. Even were one relying on the original record without considering this newest onslaught of rather dubious filings – the continued reliance on bad law does not speak well for chances on appeal, nor does the state of binding law, nor does the inability to follow procedural mandates. This case was decided on binding Supreme Court precedent,” wrote Amina Matheny-Willard, the Norfolk-based attorney representing Breaking Through Media in the case, in a legal brief filed on Wednesday.
It was Matheny-Willard who had raised the issue with the application of binding Virginia Supreme Court precedent relative to the motion that the Board of Supervisors had used to go into closed session at its March 20, 2023, meeting that Wilson would ultimately decide the case on.
Matheny-Willard, in a Dec. 21 court hearing, cited a 2020 Virginia Supreme Court decision, Cole v. Smyth County Board of Supervisors, in which the high court had sided with the petitioner in a case involving a closed meeting of the Smyth County Board of Supervisors that was held to discuss the possible closing of the county library system.
In that 2020 ruling, the Virginia Supreme Court, in an opinion written by Chief Justice S. Bernard Goodwyn, observed that the relevant state code section, 2.2-3712(A), states 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. The Motions’ broad mention of ‘actual or probable litigation’ does not do so.”
The motion read and adopted by the Augusta County Board of Supervisors to go into closed session at its March 20 meeting was of the “general reference” variety, as County Administrator Tim Fitzgerald attested to in court testimony at the Dec. 21 hearing.
“(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.
That message has apparently gotten through to the Augusta County Board of Supervisors, which on Monday broke with decades of tradition of using “general reference” motions as it moved to go into closed session.
The motion from Pam Carter, who represents the Pastures District on the board, to go into closed session at Monday’s staff briefing was specific on several key points, including detailed mention of how the board would be meeting behind closed doors with its outside counsel to discuss the FOIA case.
The Board of Supervisors voted on Jan. 24 to authorize an appeal of Wilson’s ruling, and on Feb. 14, the board voted 5-1 to reject a proposal from Wayne District Supervisor Scott Seaton to drop the matter, moments after County Attorney James Benkahla, in response to a question from Seaton, conceded that the appeal wasn’t likely to succeed.
“The County has been accused of misdeeds by its co-defendant, Scott Seaton, a member of the selfsame board, who noted the impropriety of the closed session and the need for transparency. It cannot be stated that the citizens of the county are served by allowing misdeeds to be concealed,” Matheny-Willard wrote in her brief filed on Wednesday.
“The motion for stay should simply be denied,” Matheny-Willard went on. “Hopefully this will avoid what willmost certainly be a waste of further tax money on an appeal that will, in the absolute best of worlds, avoid sanction, by arguing for alteration of the law established in Cole.”
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Chris Graham
