[The case was first heard in General District Court; order below.]

May 3, 2001

Mr. Patrick J. Mannix, Sr.
xxxxxx
Bristol, VA 24201

Mr. J.D. Bowie
Attorney at Law
xxxxxx
Bristol, VA 24203

Re: Patrick J. Mannix, Sr. v. Washington County Board of Supervisors
Circuit Court of Washington County
File No. 01-93

Gentlemen:

This matter is on appeal from a judgment of the General District Court denying petitioner’s request for mandamus and injunctive releif alleged to be necessary in response to allegations that the Board went into a closed session during its meeting on January 9, 2001.

The facts are not in dispute and the issue can be simply stated as follows:

Petitioner properly asserts that there are three prongs, which must be satisfied before a closed meeting is deemed appropriate under the Virginia Freedom of Information Act. See Code § 2.1-344.1. That section requires the public body proposing to hold a closed meeting to have an affirmative recorded vote in an open meeting approving a motion which:

In this case petitioner agrees that the purpose of the meeting and the specific reference to an exemption are adequately stated, but he argues that the subject matter of the closed meeting has not been identified.

Counsel for the Board asserts that all three requirements were met as follows: (i) the subject matter was identified as "probable litigation;" (ii) the purpose was stated as "to discuss with legal counsel"; and (iii) the specific reference to the exemption was made, to-wit: Code § 2.1-344(A)(7).

Some two months following the January 9, 2001, meeting, the Board, in an open meeting, certified the subject matter discussed on January 9. The minutes of the regular meeting of the Board held on March 13, 2001, relect the following action:

The minutes of the March 13 meeting reflect discussion before the adoption of the motion. In that discussion, the County Attorney explained that "she was reluctant to give more information about that meeting on the Agenda for the public notice at that time; however, she stated the need for confidentiality on the subject of that meeting is now no longer necessary . . ."

In fact, criminal warrants were issued for Mr. Mannix prior to the March 13 meeting.

The court notes from its own docket that controversies between Mr. Mannix and the Board are hardly new. By Mr. Mannix’s statement in argument on this matter, the court was advised that Mr. mannix has been removed from Board meetings by deputies on numerous occasions.

No Virginia case was found directly in point, but a trilogy of cases decided by the Supreme Court of Virginia on March 12, 1982, give insight into the proper analysis to be made in deciding whether the subject matter of a closed meeting has been adequately stated. See, Marsh v. Richmond Newspapers, etc., 223 Va. 245 (1982); Nageotte, et al. v. Board of Supervisors of King George County, 223 Va. 259 (1982); and City of Danville et al. v. Laird, et al., 223 Va. 271 (1982).

Closest in facts to the present case is the Nageotte case, supra, in which the minutes regarding several executive sessions were fairly represented by minutes of one such meeting, which used the following language:

The Code section then applicable did not specifically require a statement of the subject matter. (See February 26, 2001, letter addressed to petitioner from the Virginia Freedom of Information Advisory Council, Attachment B to Answer filed herein). Nevertheless, the Supreme Court held that "the Board’s motions to go into executive session did not adequately comply with the provisions of Code § 2.1-344(b)." [Note: Section 2.1-344.1]. Nageotte, supra, p. 267.

In the Laird case, supra, the Supreme Court approved a motion that was almost as vague as the motion that was disapproved in the Nageotte case, supra. The Laird motion was recorded as follows:

The saving factor for the motion for a closed meeting in Laird, supra, was that the motion came upon the convening of a special meeting at which the only business on the agenda relating to legal matters were two matters which were clearly identified on the agenda by subject matter. The court held: "A motion, however, to confer privately with counsel over two pending legal proceedings, which were the sole items on Council’s agenda, comes within the terms of the exemption in § 2.1-344(a)(6) and is not an effort to hide anything that should be publicly disclosed." Laird, supra, p. 276 (emphasis added).

This court fully understands the awkwardness of discussing in an open meeting potential criminal charges against any person, much less a person present at the open meeting, and particularly when the subject of the discussion is an individual who is in frequent conflict and litigation with the Board. Private individuals and private companies would not be inclined to discuss such matters in an open setting.

However, public bodies operate under different rules. Indeed, the Legislature has expressly directed that all exemptions under the Act be "narrowly construed." Code § 2.1-340.1.

The court has reviewed the authorities cited and additional authorities and concludes that, under the circumstances of this case, simply citing "probable litigation" as the subject matter of a closed meeting is not compliance with the Virginia Freedom of Information Act.

That being decided, the court must determine what relief is appropriate.

I concur with the Board’s position that the request for mandamus is moot. The specific subject matter has now been disclosed as set forth in the minutes of the March 13 meeting.

In weighing the need for monetary sanctions, injunctive relief, and the reimbursement of costs, I conclude that the unique and special circumstances of this particular case do not indicate a willful or substantial violation and do not warrant or require such relief. The fact that petitioner advised two of the Board members in advance that the agenda statement of the closed meeting was not sufficient is certainly evidence to consider. However, Board members are not obliged to accept petitioner’s view of the matter as more authoritative than legal guidance from the County Attorney. I infer from the March 13 minutes that the County Attorney apparently felt that the special circumstances of the Board’s contentious relationship with petitioner justified not identifying the subject matter of the probable litigation with any specificity. I do not believe it fair or equitable to assign a label of willful misconduct to Board members who followed the advice of their legal advisor instead of the opinion of petitioner.

The local court system has been burdened trying to keep up with the cases emanating from conflict between petitioner and the Board. This court will grant relief where relief is appropriate and required, but I decline to allow this court to simply become a pawn in the never-ending conflicts between these parties.

I am satisfied that the Board will take note of this court’s view of the notice necessary to convene a closed meeting and there will be no further problem, in that regard. If I am incorrect, future sanctions will most certainly reflect the court’s disappointment in its present assessment of the need for sanctions.

This action is consistent with the refusal of the court in Nageotte, supra, to impose sanctions or award costs. The denial of relief is also consistent with the opinion in Hale v. Washington County School Board, 241 Va. 76 (1991). The findings in Hale, supra, are equally applicable in this case with regard to whether the action of the Board was willful or substantial.

Finally, I have noted that nine years ago Judge Smith found that the Board had committed a technical violation of the Act by briefly discussing a matter in executive session that was not identified in the motion to convene the executive session. Judge Smith expressly found that the topic was brought up spontaneously by a nonmember of the Board and there was no intention to violate the Act. I do not consider that incident persuasive evidence that the Board of Supervisors of Washington County is inclined or likely to intentionally be in violation of the Virginia Freedom of Information Act.

I request Mr. Bowie to prepare and submit an appropriate order.

Very truly yours,
s/ Charles B. Flannagan, II
Judge

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V I R G I N I A

IN THE CIRCUIT COURT OF WASHINGTON COUNTY

PATRICK J. MANNIX, SR.,
Petitioner

v.

WASHINGTON COUNTY BOARD OF SUPERVISORS,
Respondent

File No. CL 01-93

ORDER

This matter came to be heard April 30, 2001, on appeal from a judgment of the General District Court denying Petitioner’s request for mandamus and injunctive relief. It appearing to the Court that the facts were not in dispute, the issue can be stated as follows:

Having heard argument by Petitioner and counsel for Respondent, for the reasons stated in the Court’s Memorandum Opinion dated May 3, 2001, which Memorandum is incorporated herein by reference, the Court finds as follows:

ENTER: This 9th day of May, 2001.

s/ Charles B. Flannagan, II
Judge

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[The case was first heard in General District Court. Order below.]

IN THE GENERAL DISTRICT COURT OF WASHINGTON COUNTY

PATRICK J. MANNIX, SR.,
Plaintiff

v.

THE BOARD OF SUPERVISORS OF WASHINGTON COUNTY,
Respondent

CASE NO. V01-0716

ORDER

This proceeding came on March 20, 2001, to be heard on the petition of the plaintiff, supported by an affidavit showing good cause shown, against the respondent for violation of Chapter 21, of Title 2.1 of the Code of Virginia, 1950, as amended, "The Virginia Freedom of Information Act" pertaining to a closed meeting on January 9, 2001, of the respondent, the answer and pleading of additional facts of the respondent, the hearing brief of the respondent, the papers filed herein, the worn testimony in open court of each member of the respondent, the argument of the plaintiff, and the argument of respondent by its attorney. Witnesses for the plaintiff, Carol Fields and Stacie Rowe, were excused by agreement and did not testify.

Upon consideration whereof, it is ADJUDGED and ORDERED:

Nothing further remaining to be done herein, the proceeding is dismissed and removed from the docket.

ENTER: March 21, 2001

s/David D. Brown
Judge