Attorney says board likely followed FOIA

Shenandoah County leaders again debated at a meeting whether or not to talk about a controversial topic behind closed doors.

The Board of Supervisors on Tuesday used an exemption in the Virginia Freedom of Information Act that allows officials to go into closed session to talk to legal counsel about a specific topic. The board has cited the exemption on numerous occasions though only recently has any member questioned why supervisors needed to use it to talk about certain topics.

Alan Gernhardt, staff attorney for the Virginia Freedom of Information Advisory Council, said Wednesday the board doesn’t appear to have violated open meeting rules since members discussed a specific topic with legal counsel.

The oft-cited exemption for “consultation with legal counsel” pertains first to actual or probable litigation. As such, some supervisors have questioned why the board would go into closed session to hear from the county attorney if no actual or probable litigation exists. But the exemption also includes a more generic “consultation with legal counsel employed by a public body regarding specific legal matter requiring the provision of legal advice by such counsel.”

The exemption does require that the public body have a specific topic in mind for its discussion with the attorney, Gernhardt noted.

“That can be kind of hard to tell at times,” Gernhardt said.

FOIA experts last year recommended the separation of the two provisions – actual or probable litigation and specific legal matters, he added. While “specific legal matters” requires the body to consult with the attorney, litigation could involve the attorney or briefings from staff, Gernhardt said.

The board eventually voted 5-1 to talk with County Attorney J. Jay Litten about the local government’s obligation and legal rights concerning emergency medical services and procedures. Gernhardt noted that the motion gives more detail than required under the exemption so it does provide a subject for the closed session.

“Whether that’s a proper subject for this or whether that’s too general or too specific, I mean, that really depends more on what they actually talked about,” Gernhardt said. “I mean you would expect them to be somewhat vague in identifying it in the motion but then the actual thing they’re discussing, you want them to be pretty specific.”

Litten further divulged in open session that the board talked specifically about the status of the state license issued to New Market Fire and Rescue to provide EMS.

Gernhardt said that the broad topic of the county’s obligations and legal rights concerning emergency medical services could likely require an attorney’s counsel.

County Administrator Mary Beth Price sent an email to supervisors July 21 advising members she wanted the board and state officials to meet in closed session at its Tuesday meeting to discuss the New Market Fire and Rescue matter.

“I am advising you of a confidential Emergency Medical licensure issue with the New Market Volunteer Fire & Rescue department,” the email states. “The Virginia Office of Emergency Services and the county’s Medical Director met with County Administration, the Fire Rescue Chief and Deputy Chief of Operations about some very complicated matters and they have asked us to be active players. Therefore, I have asked the state officials to explain the licensure issues with you in closed session at the August 11 board meeting.”

Supervisors nearly didn’t take their discussion behind closed doors. Supervisors Cindy Bailey and Marsha Shruntz opposed the motion to go into closed session to talk about the subject. Chairman David Ferguson also backed Bailey and Shruntz in trying to keep the discussion in open session. At the time, it was not disclosed that members would be talking specifically about New Market Fire and Rescue and other supervisors warned that they should talk about the matter in closed session.

After the board returned to open session, members voted 5-1 to certify that all they talked about in closed session was the topic they mentioned in the motion to go into closed session. Litten asked Bailey to provide a reason for her dissenting vote. Bailey reiterated that she felt the board could have talked about the topic in the open. When asked if she felt the board had violated open meeting rules, Bailey said yes.

Bailey said later that she did not feel “licensure” issues, citing Price’s July 21 email, required a discussion in closed session.

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

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