Augusta supervisors must provide closed session recordings

AUGUSTA COUNTY — The controversial closed session recording of the Augusta County Board of Supervisors “will be ordered” to be provided to those asking for it, wrote Judge Thomas Wilson IV.

On Dec. 21, the Augusta County Circuit Court heard evidence in two civil cases filed against Augusta County concerning two FOIA requests. The first was Breaking Through Media LLC and Samuel Orlando; the second an appeal of a previously rejected case from Chris Graham of Augusta Free Press. Both requested the March 20, closed session recording of the Augusta County Board of Supervisors, and Breaking Through Media asked for recordings of over a dozen other closed sessions.

Writers from both outlets, Augusta County employees, attorneys, and Augusta County supervisors Scott Seaton and Butch Wells filled the seats in the courtroom.

Evidence presented during the joint hearing could be used by parties in both lawsuits, allowing county employees to testify once, rather than presenting similar information twice for similar cases dealing with the same subject matter.

Wilson’s opinions for both cases were filed with the Augusta County Circuit Clerk’s office on Wednesday. While Breaking Through Media LLC won their argument, Graham’s argument was rejected.

Morelli's resignation is at the center of the FOIA lawsuits

What was discussed in the March 20 meeting is at the center of the FOIA battles. Testimony in the Dec. 21 hearings confirmed the discussion was centered around former supervisor Steven Morelli.

Shortly before the meeting, Morrelli resigned in an email to the board. The email reads, “Please take my resignation affected today, March 20, 2023 for personal reasons Steve.” His term would have expired at the end of 2023.

County Administrator Timothy Fitzgerald testified on Dec. 21 that the board did not place the closed session on the agenda because of the resignation. However, Fitzgerald’s testimony also confirmed that Morelli was the reason for the closed session. The closed session was scheduled by the time the of resignation, with the email arriving 18 minutes before the meeting was scheduled to begin at 1:30 p.m.

Supervisor Scott Seaton recorded the closed session without the other supervisors knowing, a regular practice on Seaton’s part. After learning Seaton recorded the closed session, the board demanded the recordings and censured Seaton. Even after he was re-elected, Seaton remains censured and the board’s new rules formally prohibited closed session recordings.

After the closed session, Seaton referenced the resignation, saying, “I was going to make a statement, but the victims have asked me to hold off on that. I’ll choose to hold off right now regarding the South River resignation.”

The News Leader has reached out to Morelli, but has not heard back before press time.

Breaking Through’s case opened the FOIA gates

State and federal code only allow government boards to enter closed sessions for a specific list of topics, such as discussing real estate deals or personnel. The Breaking Through Media case rested on whether the county gave enough detail about the closed session before entering the closed session.

The closed session motion, made by Supervisor Jeffrey Slaven and seconded by Seaton, identified the personnel exemption as the reason for the closed session. This, however, was the extent of explaining what would be considered during the closed session.

In its closing argument, Augusta County’s counsel, Rosalie Pemberton-Fessier, explained the board of supervisors needs an approved motion that “identifies the subject matter, states the purpose of the meeting as authorized,” and “cites the applicable exemption from the open meeting requirement” to enter closed session.

Pemberton-Fessier specifically notes, “When going into closed session under the personnel exemption, it is not necessary to identify the personnel.” Because of this, “Augusta County complied with FOIA when the board of supervisors went into closed session” and the “petition should be overruled and dismissed with prejudice.”

Breaking Through’s attorney, Amina Matheny-Willard, disagreed in her closing arguments, writing “simple citation to the statutory exemption (or paraphrasing of the statutory language) is without contest unacceptable.” She cited Cole v. Smyth County Board of Supervisors, a case where a similar argument for keeping the closed session out of FOIA reach was rejected.

“The closed session was not properly convened – hard stop – and therefore is not exempted and is to be disclosed pursuant to Virginia FOIA,” wrote Matheny-Willard. ”The problem, again rather predictably, is that while evading the actual problem and thrashing about searching for anything that might save this drowning argument, the county failed to undertake the most basic of due diligence to ensure that this flotsam it clings to could carry them through the waves.”

Judge Thomas Wilson IV agreed.

“In the present case, however, for the personnel exemption for the closed session, the county simply listed one of the subject matters as ‘board of supervisors,’” wrote Wilson. “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. Ms. Matheny-Willard’s closing brief is on point with this issue, and I adopt her argument.”

As a result, Wilson writes, “The county will be ordered to provide the tape or recording of the portion of the March 20 closed session involving Morelli to petitioners.”

However, this does not extend to the recordings of closed sessions beyond March 20. Wilson wrote, “These were designated with more particularity than ‘board of supervisors,” though, and were not nearly as cryptic or general. According, the only portion of the meeting that was in violation of the Virginia FOIA is the portion that discusses Morelli.”

Augusta Free Press's case fails

Although both cases heard similar evidence on Dec. 21, only one case was successful.

Augusta Free Press editor Chris Graham previously filed suit for the recording, but his petition was denied by Judge Rupen Shah. Graham appealed, and the new case’s evidentiary hearing was set for Dec. 21.

According to the petition for injunction, Augusta County’s FOIA officer, Jennifer Whetzel, denied the request by “informing [Graham] that the meeting had been determined to be exempt from disclosure under Virginia Freedom of Information Act, Code 2.23705.1.”

Graham, representing himself, argued he has good cause to get the recording because “the county cites a personnel exemption that should not be applicable in this case because the discussion did not involve an employee of the county.”

Because Morrelli resigned before the meeting, Graham argued the closed session was discussing a private citizen rather than an elected official. However, Augusta County argued Virginia law allows for a resigning government official to have until midnight to rescind their resignation. Therefore, Morrelli was still a supervisor during the meeting, despite his emailed resignation coming in before the board convened.

Wilson’s order agreed with Augusta County.

“It appears that Morelli’s resignation was not effective until the end of the day that it was tendered, and theoretically, it could have been withdrawn or rescinded later that day,” Wilson writes. “Also, the county had not yet accepted or acted upon the resignation when it entered closed session. Under these circumstances, it appears that the personnel matters involving Morelli had not been wholly foreclosed by his resignation email at the time the board entered closed session.”

Despite this, the Breaking Through Media case still requires the county to turn over the recordings. Both parties, and The News Leader, now wait to receive the recording from the county.

Seaton’s closing statement left unaddressed

Before going into closed session on July 13, likely to discuss Seaton’s censure, supervisor Pam Carter asked, “Is it legal for us to go into closed session as defined by the state code to discuss an elected official?” The county attorney, James Benkahla, said yes, in his opinion.

Seaton, a defendant in the Breaking Through case, argued the answer should be no.

“Board members are not employees of the board because they are both elected and can’t be terminated by the board,” wrote Seaton in his closing statements. “Additionally, exemptions to open meetings should not be interpreted in ways that produce absurd or irrational consequences. FOIA would be defeated by motions for closed meetings that would hide the behavior of elected officials involving county business and, therefore, deprive the voters of the jurisdiction their right to be informed and make their own judgement about the behavior.”

Wilson did not touch on this argument in his opinions, leaving the closing statement in the air. However, Judge Shah agrees with Benkahla.

Shah wrote the closed session rule can be used “if a public body has the formal power to discipline a fellow public officer” for the “discussion of the performances of that officer and what disciplinary action to take.” If Morelli had “not resigned or had the Augusta County board of supervisors taken any disciplinary actions or discussed the reprimand of the member, that would be requiring public scrutiny.” However, in the March 20 closed session case, “neither of those happened.”

Although he was not responding to or agreeing with Seaton’s legal argument, Shah also referred to the ethics of the case, writing, “In no instance are the exemptions created purely for the convenience of the public body or to allow a public body to keep somewhat embarrassing or sensitive issues out of the public light.”

This article originally appeared on Staunton News Leader: Augusta supervisors must provide closed session recording, judge writes