Augusta County has almost no chance of winning its appeal of the Augusta County Circuit Court order requiring the county to turn over the recordings of an illegally-held closed Board of Supervisors meeting.
The Virginia Supreme Court is not going to overturn the four-year-old precedent cited at the heart of the court order; sorry to break it to you, Augusta County 6, this is just reality.
It takes a certain degree of arrogance on the part of the AC6 to think that county taxpayers want them to spend tens of thousands of their dollars on this quixotic quest to keep whatever they said in private about the resignation of South River Supervisor Steven Morelli, and ostensibly the women who had accused Morelli of sexual harassment, which reportedly factored heavily into his decision to resign, from getting out into the public domain.
No doubt about it: whatever level of arrogance is needed to do what they’re doing does indeed exist among the 6, and in abundance.
“I can tell you how I’d sell it to my district. This is how this started, and this is what this kind of crap is costing you. That’s how I’ll sell it,” Middle River Supervisor Gerald Garber said Wednesday, in response to a question on how he’d deal with constituents who would ask why he would support putting good money toward more litigation, given the likely outcome.
Garber, of course, would go on to vote with the 6-1 majority of the Board of Supervisors to authorize an appeal of the Jan. 11 court order from Judge Thomas J. Wilson IV.
It’s notable that the BOS voted to proceed with an appeal of the order without having any kind of sense of what the county has already had to pay to fight the legal challenges under the Virginia Freedom of Information Act from AFP and Breaking Through Media, which date back to requests made in August under FOIA for a copy of the recordings of the March 20 closed meeting held to discuss the Morelli resignation.
The county defended the decisions to deny the FOIA requests by claiming, counterintuitively, that the recordings weren’t a public record because it had been made secretly by Wayne District Supervisor Scott Seaton; the outside counsel handling the case for the county even tried to raise the specter of criminality on the part of Seaton in a Sept. 5 Augusta County General District Court hearing.
General District Court Judge Rupen R. Shah, in an Oct. 12 decision, sided with the county, declaring that that the recordings were not subject to FOIA because they were made by Seaton “for simply self-serving purpose,” and that they were “not a record of the agency nor is kept in a normal course of its business.”
Wilson, in his Jan. 11 court order, overturned Shah on that significant point, ruling in the AFP case that the recordings, “having been turned over to the County, are now County public records and no longer the private property of Dr. Seaton.”
In the Breaking Through Media case, Wilson cited a 2020 Virginia Supreme Court decision, styled Cole v. Smyth County Board of Supervisors, in which the high court had 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 that 2020 Virginia Supreme Court 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.”
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 a 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.
It’s this that Garber is arrogantly diminishing with the dismissive “this kind of crap” – a ruling from a circuit court judge that the Board of Supervisors illegally went into closed session on March 20, and shooting down the argument by the county that the recordings shouldn’t be treated as public records, when it was the AC6 that requested that Seaton turn over copies of the recordings, in the process, making them public records.
Garber, apparently speaking for the 6, seems to think that the county should be able to decide whether its closed meetings are done legally or not, and whether FOIA applies to anything the local government does.
Bad news for you there, bubba: you got yourself a judge’s order telling you to hand the tapes over.
The county, trying to extend the game, down 25, with 30 seconds left, is still fouling us, hoping we miss a free throw, maybe that will open the door for a dramatic comeback.
No.
Not going to happen.
The BOS is within its rights to seek an appeal, same as we were, same as Breaking Through Media was.
It’s not going to win, though; that much is clear, based on how the circuit court ruling was crafted, citing an air-tight 2020 Virginia Supreme Court precedent.
It would be one thing if the individual members of the Board of Supervisors were chipping in their own dollars to keep this case going, which is what I’ve had to do, which is what Breaking Through Media has had to do.
But no, they’re using your dollars to fight their fight – a fight, it needs to be noted, that is entirely about keeping what they had to say behind closed doors about the resignation of one of their fellow members, and the people who alleged misdeeds that played a role in him deciding to step down.
Whatever that final dollar figure ends up being, how many ever billable hours at $250 per that they’re paying the same lawyer that already lost this case when it mattered, that money that they’re throwing down this rabbit hole won’t be able to do a single thing to educate a kid, to put a body cam on a sheriff’s deputy or a dash cam in a cruiser, to beef up staffing at our fire and EMS departments.
Nope, nothing good will come of this, just, utter waste.
What’s being done here is your tax dollars are being spent on “this kind of crap” to keep them from looking bad.
Remember that next time you’re writing the check for your real-estate taxes.
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Chris Graham
