Meeting behind closed doors can cause public ire

Elected officials in cities and counties across Central Virginia routinely take advantage of a state law affording them the opportunity to discuss matters behind closed doors, away from public view.

City councils and county boards of supervisors in the Lynchburg area last year met in closed meetings an average of 51 percent of the time during regular meetings, according to an examination of public minutes by The News & Advance.

Amherst County supervisors met behind closed doors at the highest rate in 2009, doing so 19 times out of two dozen regular meetings, or 79 percent of the time.

By comparison, Camp-bell County supervisors met in closed session in 59 percent of their meetings; Lynchburg City Council, 47 percent; Appomattox County supervisors, 44 percent; Bedford City Council, 43 percent; and Bedford County supervisors, 36 percent.

Experts in open-government law say closed sessions are legal and often necessary, but should not become habit.

“Just because something can be discussed in closed session doesn’t mean it has to be,” said Megan Rhyne, executive director of the Virginia Coalition of Open Government. “Sometimes it’s unavoidable based on what the subject is.

“There are those localities that tend to go into closed session wherever legally permissible, though they don’t need to.”

Protecting the ‘people’s interest’

The closed-session procedure is a privilege or tool for officials to use and should be properly handled to earn public trust, said Maria Everett, executive director of the Virginia Freedom of Information Advisory Council and an attorney.

Everett said exemptions under the Virginia Freedom of Information Act (FOIA) allowing closed sessions are mainly intended to protect the bargaining positions of governments that handle taxpayer money. Other states have similar rules.

“It’s really to protect the people’s interest in some cases,” Everett said.

According to FOIA, officials only can take votes in open meetings, and closed sessions are for certain limited purposes.

Examples include land acquisition where open talks may adversely affect bargaining positions, interviews with potential candidates for employment and talks regarding litigation.

The law requires that for closed sessions to be legal, a recorded vote in open proceedings must approve a motion that identifies the subject matter, states the meeting’s purpose and makes specific reference to the exemption requirement in state code.

Closed sessions have become an issue in the area several times recently. Earlier this month, Amherst supervisors voted 3-2 to terminate employment of Vaden Hunt, the county attorney, following a closed session.

The move infuriated Claudia Tucker, a newly elected supervisor who last year spoke of the need for open and transparent government in her campaign.

Board of Supervisors Chairman Chris Adams said he has tried to keep communication open between the public and the government.

“Then again, certain things that are sensitive have been discussed in closed session in all due respect to people and businesses involved,” Adams said. “We are very conscientious about discussing the item and we do adhere by the guidelines.”

Controversy also erupted in Amherst last spring when former county administrator Rodney Taylor quit his post following conflicts with several supervisors in closed sessions.

Supervisors initially would not talk about Taylor’s tumultuous exit, labeling it a personnel issue, though they later issued a brief statement on the matter. Some board members at the time said the silence was meant to protect Taylor’s privacy.

Taylor’s response was that the board’s steps to issue the statement away from open view continued “a pattern of arrogantly shutting the public out of county government.”

When residents demanded an explanation, a former supervisor serving at the time said he was legally bound from speaking. But experts say that’s not exactly the case.

“There’s nothing in the law that makes it confidential,” Everett said. “They’re not strictly prohibited (from talking) but that’s the point of the closed session, to not talk about it later with anyone else.”

Local closed-session controversies

Amherst is not the only government in which closed sessions have played a role in important decisions.

Lynchburg City Council recently moved to use closed-session interviews to choose a replacement for a seat vacated by Scott Garrett following his election to the Virginia House of Delegates.

But council reversed course on the issue, deciding in December to instead interview candidates. Councilman Randy Nelson was named to the interim seat.

Lynchburg Mayor Joan Foster, who motioned for the open process, said she changed her position on the matter because she realized a candidate’s life is “an open book” when stepping into public office.

Following the sudden death of a supervisor in early 2007, Bedford County interviewed about a dozen candidates for the vacant seat in closed session away from public view. Roger Cheek, chairman of the Bedford County Board of Supervisors, said the board handled the appointment as a personnel matter to protect applicants’ privacy.

“I think you should do as much as you can in the open,” Cheek said. “It doesn’t look good to conduct all your business behind closed doors. That’s something we use sparingly.”

In the city of Bedford, entire meetings have fallen under an exception clause to FOIA.

For nearly two years, the city and Bedford County have negotiated a possibility of the city reverting to town status, a move that would join the two. The public has not been privy to those closed meetings and Bedford Mayor Skip Tharp said the reversion talks are a multifaceted “work in progress” that could lead to misinformation if made public.

Attorneys with both the city and county and Everett said the reversion talks are not subject to FOIA because of a state code section (15.2-2907) — Everett said it’s a rare case that “trumps” the act.

More education needed

Closed sessions are trustworthy if done correctly, Everett said.

She said she feels mistakes often made by officials are truly from ignorance of what the law requires and not through malfeasance.

Last fall she visited Amherst County to present elected officials a FOIA tutorial. She said she gives similar visits to any group that asks her to come.

“We’re not the FOIA police,” said Everett. “Our job is to give legal opinions on the law and to try to help government do a better job.”

Adams said the tutorial was a “step in the right direction” for the board to be more educated about FOIA requirements and described it as a good learning experience.

“It’s not done to hide things from the public,” Adams said of closed sessions. “It was done in respect of people. I think the board has taken great strides in involving the public. And we will continue to do so.”

Rhyne said the “easiest, most visible and most immediate” way for residents to engage in government is to attend meetings.

“The public has to be there to know that procedures are being followed,” she said. “There’s only so far you can ride this secrecy and confidentiality train.”

• Staff reporter Duffie Taylor contributed to this report.