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Three City Council members found in violation of Freedom of Information Act
for series of e-mails.
By ELIZABETH WATERS
The Free Lance-Star
Date published: 12/14/2002
Judge rules e-mails violated open-meeting law
A judge ruled yesterday that three Fredericksburg City Council members violated
the state's Freedom of Information Act by exchanging e-mails about public business.
Fredericksburg Circuit Judge John W. Scott Jr. said Mayor Bill Beck, Vice
Mayor Scott Howson and Councilman Matt Kelly broke the law when they discussed
committee assignments in a series of e-mails they sent to each other during
the first week of July, just days after Kelly took office.
But Scott dismissed the remaining counts in the lawsuit against those three
and cleared Councilmen Tom Fortune and Billy Withers entirely.
The ruling clarifies a previously gray section of the state FOI Act. The law
states that three or more members of a public body may not hold meetings via "electronic" communication,
but does not state whether e-mail falls into that category.
Scott said the problem with the council members' e-mails about committee assignments
was that they were intended to achieve consensus, which should have occurred
in a public session.
The judge said two other e-mail counts against the councilmen did not violate
the law because the messages were intended to gather information only, not
to reach a decision.
Beck said he was disturbed by the precedent-setting ruling.
"I'm concerned that any of us in any way could be found culpable for
something that until today was not law," he said.
But Michael Barnsback, attorney for the plaintiffs, agreed that the councilmen
broke the law by the way they used the e-mails.
"That's the key. It's the communication leading to the deliberation of
public business," he said.
The lawsuit filed in September by former Vice Mayor Gordon Shelton and two
other city residents claimed the five councilmen deliberately excluded the
public and Councilmen Joe Wilson and Hashmel Turner from private "meetings" via
e-mail and in person. The suit initially cited 18 counts of FOI violations,
but Scott dismissed nine of those in a hearing last month and five others before
the trial.
The judge ruled yesterday that Fortune did not violate the law because he
did not send any e-mails about committee assignments after taking office in
July. Fortune said he was pleased, but would "stand in solidarity" with
the three councilmen found guilty.
"I don't think this is the kind of thing anybody comes away feeling good
about," he said.
Scott also dismissed yesterday all claims against Withers, who did not send
any of the e-mails cited as evidence in the three counts considered at the
trial.
And the judge ruled that Beck, Howson and Kelly did not violate the state's
open-meetings law when they gathered July 25 on a street corner to discuss
traffic problems with residents of the Charlotte Street area. He said the councilmen
attended the neighborhood meeting to hear residents' concerns and obtain information,
not to conduct city business.
Scott refused to sanction the three councilmen for their lone violation. He
scheduled a hearing Tuesday, however, on a defense request to sanction Shelton
and the other two plaintiffs--city residents Patrick Timpone and Anthony Jenkins.
Howard Stahl, the attorney representing Beck, Howson, Kelly and Fortune, said
the plaintiffs should be penalized for initially including three "baseless" counts
in their suit. One claimed the five council members held an illegal meeting
on a FREDericksburg Transit bus on an unknown date.
Shelton and Beck have a long history of political feuding. Shelton endorsed
Jenkins in the May council election, while Beck backed Fortune. Timpone was
an active supporter of Beck's opponent, incumbent Bill Greenup, in the 2000
mayoral election.
Shelton, who retired from the council last year, said he was pleased by yesterday's
outcome and is looking forward to Tuesday's 9 a.m. hearing.
"I'm not disappointed," the 24-year City Council veteran said. "We
did win one today."
Scott ended the six-hour trial by thanking the attorneys for "keeping
the politics--by and large--out of these proceedings."
He encouraged the plaintiffs and defendants to work out their differences
for the sake of the city. He referred to a trial last year in which five other
council members were found guilty of holding an illegal closed meeting to discuss
bringing the proposed National Slavery Museum to the city.
"Last year we appeared here and the court made a statement it was time
to come togetherand move on and do what's best for this community. It's still
time for that to occur," Scott said.
"I would hope that one year hence we don't end up in this courtroom doing
something similar to what has occurred today."
Date published: 12/14/2002 |
