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Posted September 16, 2012 | 6 Comments
Attorney: Meeting 'conduct' too broad for closed chat
By Alex Bridges -- firstname.lastname@example.org
Whether the Shenandoah County Board of Supervisors violated open meeting laws Tuesday remains uncertain.
An attorney with the Virginia Freedom of Information Advisory Council said Friday the board may not run afoul of state code if supervisors sought advice on how to address the conduct of a specific individual at meetings. But asking an attorney about basic decorum isn't specific enough, according to Alan Gernhardt, staff attorney for the agency.
"It's a little bit debatable in that specific legal matters means just that -- there's gotta be a legal matter," Gernhardt said.
The board went into closed session at the end of its regular meeting to discuss legal matters with County Attorney J. Jay Litten and receive his advice. Supervisors cited the subject matter of such discussion as "conduct at public meetings and the board's rights, duties, and obligations pertaining to the same," according to the agenda and the motion made to go into closed session.
Litten said Friday he could not comment on the discussion he had with supervisors in the closed session except that the board talked about the items listed on the agenda exempted under the opening meeting laws.
If a board cites actual or threat of litigation as reason for a closed session, the panel must be talking about an instance in which a member believes he or she is going to be sued or the board plans to sue someone and can name the suit and why it would happen, according to Gernhardt.
"That's pretty specific and a discussion of etiquette would not qualify under that, I would agree," Gernhardt said.
However the code section contains more language that addresses consultation with counsel on specific legal matters, upon which Litten relied for the reason the board went into closed session.
In some cases a board has sought legal counsel to explain the consequences of the language in a contract before the body signs such a document during the negotiation process, according to Gernhardt. However courts have ruled that general policy matters that could address possible issues in the future is not specific enough, Gernhardt said. The attorney admitted the issue raised this week may fall into a gray area, one which has not yet been addressed by any court case.
"I think if they just wanted to set a general etiquette policy I don't know if that's a specific, I mean, is that specific?" Gernhardt said. "Is that a specific legal matter? We want to set a policy for the conduct of behavior. Then again, what if they're talking about, 'hey, we've got this one individual who keeps having outbursts and we're afraid they're going to keep doing it and we want to set a policy that will stop that specific behavior because it's happening right now.' That certainly sounds a lot more specific."
"Honestly, if they end up before a court, I don't know what would happen," Gernhardt added. "I can't predict that."
Supervisors this summer asked Litten to assist the board by looking into issues of etiquette and decorum at public meetings by members of the audience. Repeated incidents at meetings in which some members of the audience spoke out of turn, not during specific comment periods or hearings, prompted the board to seek Litten's advice.
On more than one occasion, Chairman Conrad Helsley or Vice Chairman Dennis Morris has had to call order to the meeting and advise individuals in the audience they are not to speak out of turn directly to the board. Helsley and Morris also have threatened to have anyone who continued to speak out of turn removed from the board room.
Gernhardt cited the section of the state code pertaining to open meetings and pointed to the specific language which addresses consultation with legal counsel. The code exempts from open meetings consultation with legal counsel over actual or probable litigation; the latter would have to refer to specific threats of action "or on which the public body or its legal counsel has a reasonable basis to believe will be commenced by or against a known party."
The code states, "Nothing in this subdivision shall be construed to permit the closure of a meeting merely because an attorney representing the public body is in attendance or is consulted on a matter."
Some residents who have spoken at the supervisors meetings have expressed frustration at the fact the board does not respond to direct questions. Supervisors set aside times at meetings for the public to comment only on new business items and then on topics not on the agenda. The board does not allow time for the audience to comment on items held as a part of a public hearing or on old business, such as issues tabled from earlier sessions.