The war between the statutes

Did the BOS violate FOIA . . . again? Maybe not

The big question that came out of last week’s regular and two continued Board of Supervisors’ meetings was not “Did we get anything done?” But “Did we violate Virginia’s Freedom of Information Act (FOIA)?”

At the end of a marathon, nearly six-hour regular meeting on April 3, the Rappahannock County Board of Supervisors voted to recess and meet later in the week to continue the agenda. The videotape of the meeting shows Jackson district supervisor Ron Frazier summing up the decision at the end of the meeting, saying the board will reconvene on Thursday, April 6, “at 9 a.m. at the library unless there is an issue [with the library’s availability.]”

That seemingly simple act to recess and continue a meeting, which is allowed by law, stimulated the latest round of criticism among some community members about the way the board conducts the county’s business. Specifically, in email exchanges on Rappnet, the county’s listserv, they turned to sections of FOIA to support their claims that the continued meetings had been held illegally. Their reasons were that the actions to announce and approve the recess had not been conducted properly, proper public notice was not given, and the apparent change in agenda items required calling a separate special meeting.

An item on the agenda for the meeting on the 3rd — “Schedule next budget meeting” — appeared differently on the agenda for the meeting on the 6th — “Budget Review and Discussion.”

Several days of calls to county and state officials and online research into state statutes and parliamentary procedures produced information, but not many definitive answers about this particular instance. However, it appears the board acted legally.

The board did reconvene on Thursday, April 6. At the end of that meeting, they again voted to recess and reconvene the next morning, Friday, April 7, also at the library. The meetings were open to the public, but few were in attendance because the continuances had not been announced outside the meetings themselves.

In fact, confusion over public notice shut down the Friday meeting when Director of Elections Kim McKiernan said she had not been notified of the meeting continuation, despite asking County Administrator Debbie Keyser to alert her to budget discussions.

According to Frazier, he moved to table the Friday meeting. “We seem to be tripping over ourselves,” he said in a phone call Monday.

Piedmont district supervisor Mike Biniek, on Tuesday, called the decision to shut down the Friday meeting “gut wrenching.”

The board then scheduled another meeting for Thursday, April 13.

In a phone call last Monday, County Attorney Art Goff, who was unable to attend the meetings, cited Virginia code section 15.2-1416 in support of the board’s actions.

“Regular meetings, without further public notice,” he read, “may be adjourned from day to day or from time to time or from place to place, not beyond the time fixed for the next regular meeting, until the business before the governing body is completed.”

Alan Gernhardt, senior attorney at the Virginia FOIA Advisory Council in Richmond, quoted the same statute in a phone call last Monday. However, he said that that section was not under the FOIA regulations.

What was less clear, he said, was whether the day, time and place had been clearly stated in the April 3 meeting for the continuation on April 6. “FOIA would definitely require meetings to be noticed for day, time, and place,” said Gernhardt. “Those are the three essential things.”

As for the agenda change, Gernhardt said that was more of a parliamentary issue, not a statutory one.

According parlipro.org, an online parliamentary procedure site: “The members at a meeting may adopt an agenda by a majority vote, and may amend it prior to its adoption. After it is adopted, an amendment to the Agenda requires a two-thirds vote, or a vote of a majority of the entire membership, or unanimous consent.”

Hampton district supervisor John Lesinski, however, said in a phone call Tuesday, “The board doesn’t follow Robert’s Rules of Order. We have an agenda policy that we can modify the agenda with a majority vote, but not after the agenda has been adopted.”

He also summed up the feelings of many of the supervisors, “We did create confusion and I am frustrated about that.”

An unedited video of the Rappahannock Board of Supervisors 2 p.m. meeting on Monday, April 3, can be found online at rappnews.com/video, or on the newspaper’s YouTube channel at youtube.com/RappNewsPlus.

The meeting agenda and related documents are online at boarddocs.com/va/corva/Board.nsf/Public.

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About Patty Hardee 154 Articles
Writer, consultant, actor, director, recovering stand-up comic, Patty covers the county’s courts and other topics of interest for Rappahannock News. She lives with her grape-growing husband Bill Freitag in Flint Hill.