Closed session antics, including secret recordings, happen across the state

VERONA — During the June 14 Augusta County Board of Supervisors meeting, a motion to go into closed session was met with comments by two members accusing another of “secretly” recording a closed session on June 2.

Virginia Code provides a variety of reasons governing bodies may go into closed sessions. The reasons include, but aren’t limited to, personnel and disciplinary matters, discussions concerning a prospective business locating in the community when no previous announcement has been made, and consultation with legal counsel.

It has typically been the practice in Augusta County that what is discussed in those meetings remains private. Both Butch Wells and Vice Chair Jeff Slaven accused Wayne District representative Scott Seaton of recording a closed session without the consent of other members June 2.

“I don’t take any great pleasure in doing this,” Wells said at the June 14 meeting. “But right now my trust level is at an all-time low for one of my fellow board members.”

Wells then turned toward Seaton and addressed him by name.

“Moving forward in any future closed sessions, do you plan to secretly tape what I have to say like you did in our last closed session meeting?” Wells asked. “I’d like an answer, just yes or no.”

Seaton didn’t provide a simple yes or no, though. He asked if it was illegal to record the meetings, repeating that twice more as Wells pushed him. Finally Seaton said, “there might be episodes of where I feel It is necessary.”

When asked by Seaton if he could record closed meetings, Augusta County Attorney James Benkahla responded that it would be up to the board, but that "it’s not illegal.”

It probably wouldn't be up to the board.

There is nothing that The News Leader could identify in the Virginia Code that would prohibit recording closed sessions. The Code does say that “minutes may be taken during closed meetings of a public body but shall not be required. Such minutes shall not be subject to mandatory public disclosure.”

Seaton has been in a dispute with the rest of board members over what he feels are illegal fees being charged by the Shenandoah Valley Animal Services Center in Lyndhurst, saying that he "may be the only person to stand in the way of an out-of-control bureaucracy," referring to Augusta County's fees that he feels aren't allowed by Virginia or Augusta County code.

When the closed meeting was called for June 2 there was a question from some about whether or not Seaton was going to be disciplined by the board over his public comments concerning the fees. It's unclear what transpired in the meeting as the recording made by Seaton hasn't been made public as far as The News Leader can determine.

Seaton did tell the other board members that nothing recorded has been shared with anyone else.

“How do we know that?” Slaven responded.

The News Leader reached out to Slaven, Wells and Seaton for comment. Both Slaven and Wells responded, saying they wanted to withhold comment for now but would talk about the issue in the near future.

During the June 14 meeting, Seaton also brought up that Virginia is a one-party consent state, meaning as long as a participant in a conversation — in this case, Seaton — consents to being recorded, it’s legal to do so.Slaven asked the board not to get tangled up in the word “legal.” Wells agreed.

“In my opinion there is a difference between ethical and legal,” Wells said. “A big difference.”

The Vice Chair obviously wasn’t happy with Seaton’s supposed breach of trust, saying that in closed meetings the supervisors talk about economic opportunities for Augusta County or financial situations or personnel.

He said there are times that maybe a county employee is having some challenge in their life and need concessions made by the supervisors to help them, and they expect some privacy with those discussions.

The Augusta County Board of Supervisors is not the only governing body in Virginia that recently has found itself embroiled in a debate over a closed session.

There are 50 good reasons to call a closed session. Losing your temper isn't one of them.

Those reasons can be found in 2.2-3712. Closed meetings procedures of the Virginia Code. Not among them is "to yell at one or more of your colleagues."

One public body found this out the hard way. In June a judge ordered the Gloucester School Board to release a recording of a closed session after the judge ruled that the meeting was improperly called. The 2021 closed session was called "to discuss 'personnel matters' but instead talked about conflicts between board members, according to a local judge who ordered the county to pay $4,000 in legal fees and took the rare step of fining the board $250," according to The Virginia Mercury, which sued for the recording when they heard of its existence.

A single board member, whose colleagues blamed him for contributing to their defeats in a recent election, recorded the meeting, in a tactic similar to Seaton's reason for recording the Augusta County closed session.

Petersburg City Council also committed a Virginia FOIA violation after the city's mayor vehemently demanded a closed session July 5 to discuss "personnel issues" that was not properly cited beforehand. The "personnel" in question was Councilor Charlie Cuthbert, who angered Mayor Sam Parham and others when he questioned in open session the need for Petersburg to issue bonds now for a courthouse-expansion project that had not even been drawn up yet.

State FOIA says closed meetings can only happen after a governing body cites the proper Virginia code section that allows that meeting, such as personnel or legal issues or issues where the body's bargaining position could be jeopardized if discussed in public. A review of the council's July 5 livestream (starts at 29:38) uncovered no such citation.

It also helps to have someone present familiar with FOIA law to make sure closed meetings start properly, stay on course in the closed session, and then are noted in the minutes for the meeting.

"I suspect many times public bodies veer off subject, sometimes intentionally, and sometimes by mistake," said Megan Rhyne, the director of Virginia Coalition for Open Government. "That's why it's helpful to have someone well versed in FOIA's rules in the closed meeting: to keep them on track and compliant with the law."

Back in Augusta County, Board chair Michael Shull had no comment on the closed session issue. But various sides have hinted that Wednesday's Board meeting will include clearing some things up.

Meanwhile, the argument over what's legal and what's legitimate when it comes to recording closed sessions may go on past the next meeting.

“It may not be illegal,” Slaven said about Seaton's behavior. “But it sure as hell don’t make it right.”

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— Patrick Hite is a reporter at The News Leader. Story ideas and tips always welcome. Contact Patrick (he/him/his) at phite@newsleader.com and follow him on Twitter @Patrick_Hite. Subscribe to us at newsleader.com.

This article originally appeared on Staunton News Leader: Closed session antics and recordings not just a local controversy