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Legal filing: Augusta County didn’t follow FOIA law in March 20 closed session

Chris Graham
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Augusta County, in its legal defense of denials of two Freedom of Information Act requests made to access a recording of a 2023 closed meeting of the Board of Supervisors, has failed to demonstrate that what it did to go into closed session on March 20 “was proper under the current law, and not the law as it existed forty years ago.”

This is chief among the conclusions of a brief filed by Amina Matheny-Willard, a Norfolk-based attorney representing Breaking Through Media, one of two parties – along with Augusta Free Press – suing the county in Augusta County Circuit Court over the FOIA denials.

The March 20 board meeting went into closed session so that supervisors could discuss the resignation, tendered earlier in the day, of South River Supervisor Steven Morelli, who reportedly stepped down in the aftermath of sexual-harassment allegations coming to light.

I’m the other party in the case, first filing a request, on behalf of AFP, under Virginia’s FOIA law on Aug. 4 for access to a copy of the digital recording made by Scott Seaton, who represents the Wayne District on the Board of Supervisors, then taking the county to court after the county moved to deny that request.

My first attempt at overturning the decision was denied by Augusta County General District Court Judge Rupen Shah, who ruled in an Oct. 12 opinion that the recording is not subject to FOIA because it was made by Seaton for Seaton’s own purposes, and is therefore “not a record of the agency,” despite the fact that Seaton turned over copies of the recording of the March 20 closed session to the county, at the request of the Board of Supervisors, on Aug. 9.

Shah also accepted the county’s contention that the Board of Supervisors had legally used the FOIA exemption to go into closed session, which was held to discuss the resignation of Steven Morelli from the South River seat, opining that Morelli’s resignation, tendered the morning of the BOS meeting, was still revocable under state law, and that the board could thus meet outside of public scrutiny to discuss possible discipline of Morelli because he was still at the time of the closed session a board member.

My appeal in circuit court has raised questions about the applicability of the state-code section used by the county to claim that Morelli’s resignation was revocable, and punched holes in the testimony from County Administrator Tim Fitzgerald, who claimed in a Dec. 21 hearing that, to his knowledge, members of the Board of Supervisors were unaware that Morelli had resigned before the closed session had begun, in an effort to buttress the contention by the county that it could legally go into closed session to discuss his status.

Matheny-Willard’s brief, filed on Friday, takes a different approach at challenging the legality of the closed session, citing a 2020 Virginia Supreme Court decision, styled Cole v. Smyth County Board of Supervisors, in which the high court sided with the petitioner, Cole, in a case involving a closed meeting of that board of supervisors held to discuss the possible closing of the county library system.

In the ruling, the 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.”

It’s a technical matter, sure, but the motion read and adopted by the Augusta County Board of Supervisors to go into closed session at its March 20, 2023, meeting was of the “general reference” variety, as Fitzgerald attested to in his Dec. 21 testimony.

The county, in its legal defense of the FOIA denials to the requests from Breaking Through Media and AFP, is relying, Matheny-Willard wrote in her brief, on precedents from cases in 1982 and 1990 that were written before the state’s Freedom of Information Act was amended in 2017.

“What the County has demonstrated is that they complied with the law as it existed in 1990 or 1982, and unfortunately the County needed to demonstrate that what they did was proper under the current law, and not the law as it existed forty years ago,” Matheny-Willard wrote.

“Augusta County, and for that matter its advocates, have demonstrated an insouciance to the law, its plain language and the mandates that it imposes upon them,” Matheny-Willard wrote in her brief. “They have done this and continue to do the same to the disservice of the law and citizens in general – it is worth noting that they continue to fight (utilizing taxpayer dollars) to hide their dealings from those same taxpayers, where it is just apparent that they have violated the law.

“Had the County realized its mistake and rectified its ways, there would be no need for the Court and concerned members of the public to disabuse it of its mistaken notions. Because this is not the case, the Court must set the County straight – if the Court does not, the County will simply continue to ignore the law.”

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].