Isle of Wight School Board settles FOIA lawsuits over closed meetings

The Isle of Wight County School Board paid $20,000 in attorney’s fees to settle two lawsuits alleging the board violated the Virginia Freedom of Information Act, according to district spokesperson Lynn Briggs.

County resident Kathryne Lemon filed the lawsuits, first reported by the Smithfield Times, last year. She was represented by Virginia Beach attorney Kevin Martingayle, who also represented a Suffolk School Board member in two FOIA cases in recent months.

The suits accused the board of violating the statute multiple times over several years, including after the first lawsuit was settled in early October.

The first lawsuit focused on the board’s regular monthly meetings. For several years, meeting notices told the public that the board’s public meetings start at 6 p.m., a change implemented in 2016 due to confusion from those showing early up for school board recognitions.

But the open meeting still technically starts at 5 p.m. The board then immediately votes to go into closed session, allowed under FOIA when the board is talking about things like personnel actions. It then reconvenes in public at 6 p.m.

The second lawsuit mostly focused on the board’s reasons for going into closed session. FOIA requires the board to spell out specifically the FOIA exemption they’re using when they meet in private, reading the reason aloud and including it in the minutes.

In a statement read at a board meeting on Jan. 14, chair Jaqueline Carr read a statement denying they “knowingly and willfully” broke the law. But she said the board would implement more transparency.

“I personally want to say that being in this seat is a huge responsibility and one that is not taken lightly,” Carr said. “I cringe at the thought of making any kind of mistake, but if we do and when it is discovered, we will always make sure it is corrected and then learn from it and move forward.”

In May, the Virginia Supreme Court issued a ruling in a case involving the Smyth County Board of Supervisors. The court decided the board hadn’t been specific about the subject of closed meetings, nominally for “actual or probable litigation.”

The board was being sued by trustees it had kicked off a regional library board. During the meeting, they discussed the lawsuit but also disbanding the library. When they met again in public, they voted to disband the library with no discussion or public comment.

That decision was cited in a lengthy opinion issued by the Virginia Freedom of Information Advisory Council on May 29 in response to a series of questions posed by an Isle of Wight resident about the School Board.

In the opinion, executive director Alan Gernhard noted multiple times where the board may not have followed the law. When they want a closed meeting, Gernhard said, they can’t just cite or paraphrase a FOIA exemption — they have to be specific about the “subject, purpose and citation.”

Lemon’s second lawsuit focused specifically on closed meetings after her first lawsuit, including one on Sept. 30 in which the board cited “actual and probable litigation” as one of the reasons for a closed session. According to a court transcript, Carr said during a day-long trial Jan. 5 that they talked about Lemon’s case as well as another pending lawsuit during that meeting.

They reached a settlement before the trial could continue. The board agreed to make the personnel report — which describes hires and separations and is often discussed in closed session — more readily available to the public, one of the other concerns brought up in Lemon’s second lawsuit.

The board also said it’d do better at explaining votes on things discussed in closed sessions and would do better at posting both official and unofficial meeting minutes online. Carr said in January they would “implement steps that go beyond what FOIA requires.”

As part of the settlement of the first lawsuit, the board agreed to read the entirety of the FOIA statute and comply with the law. The board has also clarified its meeting postings.

After the first lawsuit, Carr asked the School Board clerk to set up a FOIA training with the Virginia School Board Association. The board did the training Feb. 24.

Matt Jones, 757-247-4729, mjones@dailypress.com