Board receives confidentiality outline draft

Shenandoah County’s attorney has offered supervisors a way to remind them about what they should keep to themselves.

County Attorney J. Jay Litten recently sent the Board of Supervisors a draft of a resolution about confidentiality that outlines what legal information members should not divulge to the public.

The draft resolution states: “although this Board serves the public and is accountable to the citizenry, certain confidences must be kept.” Information supervisors should keep confidential includes the board’s strategy in litigation; how much they would be willing to spend for property; its negotiating strategy in contract matters; and matters of employee discipline, the resolution states.

“It states what ought to be obvious,” Litten said Wednesday. “Anecdotally, I know other places have [adopted resolutions].”

Whether or not the board plans to bring up the resolution at a future meeting remains uncertain. Litten sent the resolution and an accompanying letter to the board Nov. 3 — less than a week after he raised the issue of confidentiality. At the board’s Oct. 28 meeting, Litten voiced concern that legal advice had been “leaked” to the press and the public. Litten warned the board that divulging confidential advice could hurt the county’s position should it become involved in a legal matter related to that information.

The resolution reiterates Litten’s warning and states that “releasing such information to the public (before such release is appropriate) would undermine the very purpose of County government.” Divulging such information, as Litten explained to the board Oct. 28, could force the county to waive certain privileges of confidentiality.

“Communications from the County Attorney should be considered confidential and should not be disseminated without consulting him, because supervisors are not expected to have legal expertise in the evidentiary rules of privilege,” the resolution states.

“Discussions which take place in a lawfully convened closed session have been deemed by the Board to be inappropriate (or unripe) for public disclosure, so such discussions should not be disseminated to those not present,” the resolution adds. “Such dissemination (i) could injure the County by giving adversaries or competitors a tactical advantage, and (ii) would surely inhibit the free flow of opinions among supervisors.”

Supervisor Cindy Bailey provided a copy of the draft to the media and discussed her concern about the resolution’s intent.

“I believe it is a further attempt to stifle free speech of, specifically, the two new board members,” Bailey said, referring to herself and Supervisor Marsha Shruntz. “We ran [campaigns] on transparency and you know I would only release what could lawfully be released and when it can be released.”

Bailey said she forwarded the proposed resolution and her concerns to the Virginia Freedom of Information Advisory Council and the Coalition for Open Government.

FOIA rules for both records and open meetings allow an exemption for attorney-client privilege information, Council Staff Attorney Alan Gernhardt said Friday. In common law, a client who shares that information waives the privilege, Gernhardt explained. FOIA doesn’t address situations in which one board member divulges an attorney’s counsel and others do not, Gernhardt said. The question arises over whether or not the privilege is waived and who is the client — the whole board or members, he said.

Megan Rhyne, executive director for the Coalition, responded to Bailey’s message last week.

“While I in no way condone such policies, they are not entirely uncommon,” Rhyne states in an email to Bailey. “Many boards have an internal policy that says board members should not talk publicly on matters that are discussed in closed session.”

A board can take internal actions against a member who violates such a confidentiality policy, she added. A board can’t prohibit a member from speaking publicly on matters not deemed obscene or that threaten violence, Rhyne stated.

“I would remind the attorney and fellow board members that FOIA’s exemptions for closed session are ALL discretionary,” Rhyne states. “That means the discussions MAY be had behind closed doors but they do not have to be. There is nothing that would prevent you or anyone else for speaking on a matter discussed in closed session.”

Contact staff writer Alex Bridges at 540-465-5137 ext. 125, or