Unanimous pro-FOIA ruling from Supreme Ct.
The Virginia Supreme Court unanimously reversed a Culpeper County Circuit Court ruling that had okayed a closed-door session of the Culpeper Board of Supervisors to discuss a contract between the Culpeper County School Board and an architect hired to design a new public high school.
Justice Cynthia Kinser’s 7-0 ruling found the board of supervisors misused the meetings exemption for contract negotiations, §2.2-3711(A)(30), which allows for private discussion of the award of a public contract, including the terms or scope of the contract, where public discussion could jeopardize the public body’s bargaining position or negotiating strategy.
The full text of the opinion can be found here: http://www.opengovva.org/index.php?option=com_content&id=879&task=view&Itemid=5
The county argued it was discussing the terms of a publicly awarded contract. It wanted to meet in private to discuss with the architect options not included in the school board’s contract, options the board felt should have been given more consideration.
The court agreed the supervisors were trying to shore up their negotiation strategy: their strategy with respect toward the school board, though, not toward the architect.
"[T]he Board’s purpose in closing its . . . meeting was not one that is allowed under the exemption contained in Code §2.2-3711(A)(30). As admitted, the Board was discussing its strategy in relation to the School Board due to the policy dispute between those two public bodies about the new high school facility. The Board was not discussing changes in the terms or scope of the [architect’s] contract vis-Å•-vis the vendor. Indeed, [County Attorney John D.] Maddox admitted that no negotiations with [the architect] occurred during the closed session. In other words, the purpose of the Board’s closed meeting was not for forming or modifying a procurement contract."
The ruling was vindication for the Culpeper Citizen, Culpeper Star-Exponent, (Fredericksburg) Free Lance-Star and the Virginia Press Association, who challenged visiting judge Herman Whisenant’s May 5, 2005, ruling in the board of supervisors’ favor. Whisenant said the contract exemption could be used because supervisors were discussing the scope of the contract with the thought that it would suggest amendments to it.
Though Whisenant also ruled the county abused FOIA’s meeting-notice requirements, he refused to award the media plaintiffs any attorneys’ fees. The Supreme Court reversed this ruling, too, concluding the media plaintiffs "substantially prevailed" and were entitled to attorneys’ fees and costs.
A tentative settlement on fees was set for final approval on Jan. 3, according to Christian & Barton attorney Craig Merritt, who argued the case for the media outlets in front of the Supreme Court. Merritt was joined by colleague Roman Lifson, while the board of supervisors was represented by Hefty & Wiley name partner Roger Wiley.
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