Public business or not?

Coalfield Progress

FOIA council: Meeting may have violated law

by JODI DEAL • Staff Writer

Four county school board members may have failed to follow state public meeting law when they conferred with their attorney while boycotting an official school board meeting, according to a lawyer with the state Freedom of Information Advisory Council.

Coeburn native and Wise resident Bob Nixon got that informal opinion from FOIA Council attorney Alan Gernhardt, who attempted to answer Nixon's questions about the May 2 meeting between school board members Betty Cornett, Mark Hutchinson, Jess Powers and Rocky Cantrell. Their attorney, Frank Kilgore, has confirmed the meeting and said he and his clients have nothing to hide — he maintains the board members have a right to meet with their legal counsel.

In his reply to Nixon, Gernhardt wrote that if three or more school board members gather to discuss or transact school business, they must advertise the meeting to the public and follow other provisions of the Virginia Freedom of Information Act.

If those members want to discuss legal matters, Gernhardt wrote, "then they could hold a closed meeting pursuant to the legal matters exemption" provided in the law.

"Given the facts as you have presented them, that the members in question are meeting without having given any notice of the meeting, and that they are discussing school board business, the meeting would be in violation of FOIA for lack of the required notice," he wrote.


In an e-mail response sent to local media and county officials, Kilgore said the key phrase is "to conduct school business," which, he added, is not the same as private counsel advising clients about pending litigation or legal strategy.

Kilgore pointed out that his clients have filed suit against Superintendent Jeff Perry and board Chairman Ted Thompson. Convening a closed meeting of the school board wouldn't be an appropriate venue for discussions about that litigation, since the other side would be able to sit in and listen, Kilgore added.

"Obviously Mr. Nixon failed to reveal all the facts," Kilgore wrote. He went on to note that just because an attorney "hails from Richmond" does not necessarily give his opinion extra weight.

Kilgore said he'd be glad to share his side of the story with Gernhardt if he'd like, or "he can come on down to Wise County and we can see what a Judge has to say."

After all, he added, advisory opinions aren't binding.

Kilgore wrote: "All lawyers have opinions, it is the lawyers with black robes that impress me the most. One thing is very clear, this was my call and not my clients and I am a big boy and after a trip to the state supreme court and back, if that is what it takes, if I am wrong I will tell Mr. Gernhardt he is the man, until then, you all know the old saying about opinions."


Last week, Nixon reached out to state Dels. Terry Kilgore and Clarence "Bud" Phillips seeking an opinion from the state attorney general on the matter. Although a citizen can request unofficial opinions from the FOIA Council, only certain elected and appointed officials can ask for AG's opinions.

In a letter dated May 31, Nixon also reached out to county Commonwealth Attorney Ron Elkins to ask for a Virginia State Police investigation to determine if the meeting was "a willful conspiracy to violate state law."

He went on to add that the Freedom of Information Act is supposed to allow the public to fully participate in government.

"The action by the four elected school board members to boycott a regular meeting to conduct their own private dinner meeting is an affront to the law that must not be allowed to stand unchallenged," Nixon wrote.

He also suggested that "to think the four did not discuss public business of the Wise County Schools would be most foolish."

Contacted Thursday, Elkins declined comment, noting that he's still reviewing Nixon's request. Elkins said he did not receive the request until late Wednesday.



I'm disappointed that the attorney takes a backhanded swipe at Mr. Gernhardt. The two attorneys at the FOIA Council are from Richmond, sure, but the real reason their opinion should be given consideration is because their job is to study and interpret FOIA. They are fair, impartial and thorough. VCOG doesn't agree with every opinion the Council issues, but we respect the office and its attorney 100%.

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