The Fredericksburg City Council went back to court for its second Freedom of Information Act-related trial in just over a year, and again the taxpayers will pick up the tab.

Fredericksburg Circuit Judge John W. Scott ruled Dec. 13 that e-mail circulated among Fredericksburg Mayor Bill Beck, Vice Mayor Scott Howson and Councilman Matt Kelly about appointments to the city library board constituted an improper electronic meeting under the Freedom of Information Act.

FOIA prohibits electronic meetings by local governments.

On cross-motions for summary judgment, attorneys for the council members relied heavily on a 1999 Attorney General opinion and argued that the e-mail exchange had to be simultaneous, as in a chat-room or Instant Messenger, for it to rise to the level of a meeting.

The plaintiffs lawyers argued that FOIA doesn't mention "simultaneity," so in the absence of any such language, FOIA should be interpreted liberally to foster public access.

Scott focused on how the e-mail was being used, instead of what time frame it was sent, received and/or responded to. If the communication is for the purposes of establishing a dialog, coming to a consensus or furthering a discussion, then it is a violation of FOIA, the judge said in his ruling from the bench.

The e-mail about the library board appointment contained such a discussion, Scott said. A name was proposed, the person's qualifications were discussed, and one of the three council members said he would vote for the appointment.
The Virginia Municipal League went on record in opposition to the ruling.

"The e-mails in question were not a part of a chat room or instant messaging service," Mark Flynn, director of legal services for VML, wrote. "In some cases, at least 12 hours passed between the sending of an e-mail and the response by another member of the council. Therefore, the e-mails were little different in nature from letters sent from one member to the other members. The act does not support the argument that sending letters back and forth could constitute a meeting, and does not support these e-mails as constituting a meeting."

Scott determined that two other e-mail exchanges did not constitute an improper meeting under FOIA because they involved the mere exchange of basic information, not a discussion. One exchange had to with zoning issues and the other had to do with creating a committee on historic preservation.

Scott also ruled that a neighborhood meeting attended by the same three council members was not an improper meeting of the city council.

When three or more members of a body (or two members when the body has three or fewer members) gather to discuss public business, FOIA requires them to give notice of the meeting and to take minutes. FOIA allows informal gatherings, such as at barbecues or grocery stores, so long as the gathering was not arranged to discuss public business and no public business is actually discussed.

Scott said the councilmen attended the meeting to hear the neighbors' concerns about traffic and speeding and to obtain information, not to conduct city business.

Scott did not sanction the council members for their one violation. The judge did, however, fine the plaintiffs $8,000 for filing two frivolous allegations that were earlier dismissed.

The fine will go toward offsetting the nearly $90,000 in attorneys fees the city has racked up and which will come out of city coffers. Last year, city taxpayers had to foot the $7,348 bill the city ran up when the Free Lance-Star successfully sued the city for holding an improper closed meeting.