Fort Monroe Authority seeks title change for director, raising questions about impacts on public record disclosures

Legislation is advancing in the Virginia General Assembly that would rename the Fort Monroe Authority’s executive director as the authority’s chief executive officer.

The change appears semantic. But it has raised questions about whether the title change will expand the types of records the authority can exclude from disclosure under the state’s open records law.

The Fort Monroe Authority is a political subdivision that oversees development on the state’s property at the fort, which ceased to operate as an Army base in 2011. HB 1138, introduced by Del. A.C. Cordoza, R-Hampton, and SB 89, Sen. Mamie Locke, D-Hampton, would change the Fort Monroe Authority’s executive director to a chief executive officer.

State code grants exceptions for Freedom of Information Act requests. It allows specific public bodies, such as the “chief executive officer of any political subdivision of the Commonwealth,” to exclude working papers and correspondence from FOIA requests.

Phyllis Terrell, a spokesperson for the Fort Monroe Authority, said she didn’t believe getting around FOIA law was part of the motivation in the title change.

“It is the understanding of the Fort Monroe Authority (FMA) that the title of ‘executive director’ is already covered by the working papers exception… I.e., the ‘executive director’ is the FMA’s ‘chief executive officer’ as that term is used in the FOIA statute,” Terrell said. “So, there’s no change in the application of FOIA by this title change.”

Terrell, who said she consulted with the attorney general’s office about the change, told the Daily Press the title change would better reflect all of the responsibilities as the leader of the “dynamic organization.”

“Many CEO’s lead nonprofit, government agencies, and business type organizations,” she wrote in a text, citing similarities to the leadership structure of the Colonial Williamsburg Foundation.

There, she noted Williamsburg CEO Cliff Fleet oversees operations and preservation of the historic area as well as the revenue generating hospitality, retail, and commercial real estate units.

“Similarly this role at Fort Monroe Authority is moving in this direction. Future leaders of the FMA will likely have this experience and expertise,” Terrell said. “The title of Chief Executive Officer perhaps better reflects all that is entailed with the role.”

When advocating for the legislation in a Feb. 1 House subcommittee hearing, FMA Executive Director Glenn Oder said the current title makes the position sound like an agency position.

“The position is not an agency position,” Oder said. “It’s not appointed by the governor. It’s a position that serves sort of at the pleasure of the Board of Trustees. And so moving it into a chief executive officer position aligns it more with some of the other more significant responsibilities that are in the commonwealth of Virginia.”

Megan Rhyne, executive director of the Virginia Coalition for Open Government, said her initial reaction to the legislation was concern, fearing it would enable the Fort Monroe Authority to skirt FOIA law.

“Initially, this did grab my attention,” Rhyne said. “And it did concern me that it could be a way of claiming use of an exemption that that position might not have had access to. But in talking with some experts and people who understand the code as a whole a lot better than I do, I decided that it was probably not as alarming as I had thought it was.”

Based on her conversations with state code experts, Rhyne said the FOIA exemptions granted to CEOs of political subdivisions are less about “the title” and more about “the function.” She said she believes Oder already can use the “working papers exemption” because he is in charge of the Fort Monroe Authority, which already is labeled a political subdivision of the commonwealth.

She said she backed off opposing the legislation because she felt “that it seemed to be something that was already allowed whether he thought he could do it or not.”

Locke wrote in a text that the change of title from executive director to CEO recognizes that the Fort Monroe Authority is “more than just a tourist attraction.”

She stated it is also a multi-faceted real estate operation and visitor center and that the title of CEO best represents one who heads such an operation. She said the title does not convey any additional authority to the position and that “there is no change under the FOIA statute by the title change.”

The legislation passed the Senate unanimously and had been read twice in the House and engrossed as of Friday.

The Fort Monroe Authority has previously sought legislation to shield it from FOIA requests. Last year, Cordoza and Locke introduced legislation that allowed the Fort Monroe Authority to withhold “trade secrets, proprietary information or financial information” received from a private individual or entity for the purposes of complying with a lease, license, permit, or other agreements of a commercial or residential real estate nature. The legislation passed and was signed into law.

Oder said then the legislation was needed as developers were reluctant to do business with the authority because they didn’t want their financial information to be subject to FOIA. The legislation drew criticism from open government advocates and journalists.

Terrell told the Daily Press the authority has been “very transparent” when FOIA requests are made. She cited the authority handing over salary information to the Daily Press last year.

Josh Janney, joshua.janney@virginiamedia.com