Chesapeake’s ex-city attorney warned council of alleged violations — months before planning official’s lawsuit was filed

Chesapeake’s city attorney sternly warned City Council members in November the city likely violated the law by not turning over documents sought through a public records request, and urged members to provide responsive documents in order to mitigate their legal liability.

The warning and advice was laid out in a legal opinion and memo authored by former City Attorney Jacob P. Stroman, who resigned last month. His two memos, obtained by The Virginian-Pilot, appear to have played at least some role in his departure — as three governmental sources say his legal interpretations have frustrated the mayor over the years.

The legal opinion has to do with a Freedom of Information Act request from Planning Commission member Levin Turner, who sought two documents circulated during an Oct. 25 closed session to discuss his appointment.

Turner filed a lawsuit against the City Council last month — an action Stroman warned could happen. The lawsuit said city staff initially disputed the existence of such documents but later produced two photographs of the documents, though not the documents in their entirety.

Turner’s lawsuit said the requested documents were circulated by council member Debbie Ritter in an effort to prevent him from getting seated on the commission. Turner was appointed to the commission following that meeting anyway.

Stroman sent a seven-page legal opinion regarding Turner’s request to council members Nov. 18 and a follow-up memo Nov. 30. In the correspondence, Stroman said the city’s responses had been inaccurate and cautioned members that legal action could result if the documents aren’t provided.

“It is difficult to overstate the vulnerability of both the city and the council member in light of the prior, inaccurate FOIA responses,” Stroman said. “In the event that Mr. Turner files a lawsuit alleging FOIA violations against the city, it is likely that the city would lose the lawsuit, and may be ordered to pay Mr. Turner’s attorney’s fees.”

Further, he warned Ritter is at “significant risk of monetary penalties for a willful violation of FOIA.”

Virginia FOIA is the commonwealth’s primary open government law. It starts from the presumption that all government records and meetings are open and available to the public, but includes specific exemptions.

Attempts to reach Stroman for comment on the legal opinion and his departure were unsuccessful.

Reached by phone Friday, Ritter said she “acted in good faith” with the belief the documents weren’t public records. But she declined to state whether the documents had since been provided to the city or to elaborate due to the pending litigation.

“I believe that it will be resolved in a fair and just manner,” she said.

Mayor Rick West previously said the council did nothing to violate FOIA to his knowledge, and that it’s always operated under the assumption that documents presented in a closed session aren’t public records. He said Friday that he doesn’t “have an opinion on it.”

City attorney’s departure

Stroman’s legal opinion regarding the city’s public document predicament seems to have played some role in his departure, according to three governmental sources who spoke on the condition of anonymity due to potential retribution for publicly discussing privileged information.

The council voted last month to accept Stroman’s resignation at the first meeting of 2023, after newly elected lawmakers were sworn in. But the initial plan was to terminate the city attorney before the option to resign was presented, according to one source.

The three sources liken Stroman’s analysis on the FOIA issue to the last straw in a series of opinions West has disputed publicly and privately. For example, following the vote in 2021 to appoint Dwight Parker — who’d previously served on council and was the next highest vote-getter in the last election — to fill a vacant seat, West called for a special meeting shortly afterto determine whether the vote was legal. Stroman said it was.

Virginia law states local elected officials are required to complete a FOIA training session within two months after assuming office and at least once during a two-year period following the previous training. In a memo sent to City Council members in December, Stroman said members were due for a refresher on new changes to public records law since the last session was in December 2020, and that independently reviewing a video of the outdated session wasn’t sufficient.

Stroman wrote in the memo that West canceled the training session, stating he didn’t think it was necessary. But none of the members were informed before he did so. West confirmed to The Pilot he did cancel it without first consulting the council because there were more pressing issues and he believed it needed to be held with all new council members.

“I decided to make that decision,” West said.

West said the training session has not been rescheduled but will be.

West told The Pilot he “was in question” about the legal requirement to conduct the FOIA training within the timeframe Stroman suggested after receiving information from “other sources.” He added that he sometimes seeks outside counsel from others such as the Virginia Municipal League and state legislators, for example, because there is often “confusion” about Stroman’s interpretation of the law.

West, however, said he doesn’t think Stroman’s opinion on the city’s pending FOIA matter had anything to do with his departure.

Response to request for documents

The documents central to Turner’s lawsuit include a printout of a Sept. 10 email that questioned why the Chesapeake Republican Party was supporting then-City Council candidate Amanda Newins after she was accused of elder abuse in a lawsuit filed by her great aunt, according to Turner’s complaint. Newins was elected to council in November and the lawsuit against her is still pending.

The second document was an “internet protocol address analysis” that purportedly showed the email had been sent from a Yahoo account belonging to Turner, the complaint said.

Turner first requested the documents Nov. 4. He received a response shortly after that the documents hadn’t been given to the city, and as a result the city had no records to provide, according to his lawsuit and Stroman’s memo, which included an attached correspondence between Turner and the city. Turner then asked that his request be forwarded to council members, who were advised by the city clerk that Stroman had opined the records must be produced.

Three days later, the city told Turner that council members said they didn’t have the records.

On Nov. 15, Turner asked for Ritter to provide the documents along with a written response. The city replied a few hours later, saying Ritter already reported she didn’t have them and FOIA does not require the city or its officials to create a record.

Stroman’s Nov. 30 memo said several council members informed his office that Ritter circulated the documents and council member Robert Ike provided photos of the front pages of both documents.

Ike told The Pilot he took the photos “above the table and right in front of everybody” and then provided them to Stroman’s office following the Nov. 18 memo.

“I complied with the FOIA request,” Ike said.

The photos were provided to Turner, but Stroman said the city is still responsible for providing the original documents, writing that the city is the official “custodian” of a public record and must take all necessary precautions for the “preservation and safekeeping” of the record. He also said the photos didn’t suggest any exemption that would allow the documents to be withheld.

“This import of this additional information is clear: the failure to produce the documents constitutes a violation of FOIA for which both the City and the Council Member may be held liable,” Stroman wrote Nov 30. “The Council Member who brought the documents to, and removed them from, the Closed Meeting is at significant risk of monetary penalties for a willful violation of FOIA.”

Megan Rhyne, director of Virginia Coalition for Open Government, previously told The Pilot that no record otherwise deemed open can be withheld “by virtue of the fact that it has been reviewed or discussed in a closed meeting.” A provision recently added to the law says it’s a violation to destroy a record in an effort to avoid having to turn it over, she added.

Turner’s lawsuit asks the city and Ritter be found in violation of the state’s FOIA law and Virginia Public Records Act, which requires public records be retained for a time period set by the Library of Virginia. He’s also asking that Ritter be ordered to pay civil penalties and his attorney fees. A hearing in the case is set for later this month.

In Stroman’s memos, he said the documents became public records subject to FOIA “the moment they were considered by council in the course of making appointments (to) the Planning Commission.”

He also opined they’re considered public records because they were possessed by a public official in the transaction of public business and they memorialize a transaction or activity by or with a public officer.

Stroman added that even if the documents were considered personnel records, Turner is the subject.

He urged the City Council to turn over the documents “so that we may do everything possible to protect the City and avoid liability.”

Natalie Anderson, 757-732-1133, natalie.anderson@virginiamedia.com