Five members of the Prince William Board of County Supervisors violated Virginia’s Freedom of Information Act when they attended a police department meeting called in the wake of a Manassas protest against the police killing of George Floyd in 2020 without complying with statutory public disclosure requirements, the Virginia Supreme Court held Thursday.
Writing for the majority in a 5-2 decision, Justice Wesley Russell, Jr. said that there was sufficient evidence presented that the meeting at issue, called by former Prince William County police chief Barry Barnard and Deputy Chief Jarad Phelps, met the definition of a public meeting subject to Virginia’s FOIA law.
The Supreme Court decision, released Thursday, May 18, revived the lawsuit after it was dismissed in October 2020 by Judge Dennis Smith, the former chief judge of the Fairfax County Circuit Court, when he granted Board of Supervisors Chair Ann Wheeler and her four fellow Democratic supervisors’ motion to strike the lawsuit in Prince William County Circuit Court after a five-hour hearing. Smith was assigned by the Virginia Supreme Court to hear the case after all six judges on the Prince William County Circuit Court bench recused themselves.
The meeting that sparked the case was a gathering of about 60 community members, faith leaders and elected officials – including the five supervisors as well as former delegate Lee Carter, who was involved in a May 30, 2020, protest following Floyd’s death.
According to testimony, several faith leaders and members of local Black churches were also in attendance. The meeting was held on May 31, 2020, at the Prince William County Police Department’s central station off Bacon Race Road and lasted about two hours, supervisors said.
Prince William County residents B. Alan Gloss, Tammy Spinks and Carol Fox alleged the police department meeting was illegal because the public wasn’t notified and because the three Republican county supervisors – Jeanine Lawson, R-Brentsville; Yesli Vega, R-Coles; and former supervisor Pete Candland, R-Gainesville – were not told about the meeting and did not attend. Spinks said she is no longer a party to the lawsuit because she moved out of the county.
The lawsuit alleged public business was discussed at the meeting because the police department officials gave their account of the police response to the protest, which began peacefully and then turned violent.
Police declared the protest an unlawful assembly after some demonstrators threw rocks and other items at officers and into the crowds. The Virginia State Police, who came to the aid of local officers, deployed chemical agents into the crowds to disperse them hours after calling on all protesters to leave the area. Several businesses in the area of the protest, which took place outside Manassas near Va. 234 Business and Sudley Manor Road, suffered property damage, including broken windows.
The case turned on the legal definition of “public business” for purposes of Virginia’s FOIA law.
The five supervisors said during testimony during the circuit court hearing that they conducted no public business at the meeting. All said they were not formally invited to the meeting by the police department, did not realize their fellow supervisors would be in attendance and went just to listen.
The Supreme Court’s majority disagreed with the five supervisors and concluded that the matters discussed at the meeting met the definition of public business.
Russell wrote that a topic is public business under Virginia’s FOIA law if it “is on a public body’s agenda or is likely to come before the public body in the foreseeable future.”
Applying that definition of public business, Russell agreed with the petitioners’ attorneys, Chris Kachouroff and Patrick McSweeney, who argued throughout the case that because more than three supervisors were in attendance and the discussion covered public business -- demonstrations against police brutality and the police department's response -- the community meeting met the definition of a meeting of the Prince William Board of County Supervisors as defined by the Virginia FOIA Act.
“To adopt the defendants’ construction—that a topic cannot be public business until it appears on a formal Board agenda—would gut the open meeting provisions of VFOIA,” Russell wrote. “It would allow portions of or full boards of supervisors to meet, discuss, and decide county business in secrecy by waiting until after their private discussions and decisions to place an item on a formal agenda. Such a result cannot be reconciled with either the language or purpose of VFOIA, and we reject such a construction of the statute.”
The state Supreme Court justices were split on the decision. Two justices, S. Bernard Goodwyn and Cleo E. Powell, disagreed with Russell’s interpretation of the legal definition of public business for FOIA purposes and joined in a dissenting opinion.
In the minority opinion, Goodwyn wrote that Russell’s definition was “unsupported by the plain meaning of the phrase public business in which the phrase is used” in Virginia’s FOIA law.
“This broadened definition of public business will make gatherings for the purpose of purely informational discussions between government officials and citizens subject to the notice requirements of VFOIA, despite language in VFOIA clearly intended to exempt such discussions from its requirements,” Goodwyn wrote.
Because the majority opinion reversed the judgment of the circuit court and remanded the case for further proceedings, the matter is on its way back to the circuit court.
Spinks said that while she is no longer a petitioner in the case, she was “delighted” with the outcome and said it was a “huge” victory not just for the parties involved but for all citizens of the commonwealth.
“This has been a long hard fight where for three long years there has been no accountability,” Gloss said, expressing satisfaction with the high court’s decision and thanking his fellow petitioners and attorneys.
“Open meeting laws exist so we don’t get politicians making backroom deals,” Gloss said. “The government must at all times operate in the open and in view of the public.”
The case will be back in the circuit court for further proceedings, but no upcoming hearings have been scheduled.
The ruling comes at a difficult time for the Wheeler and the other four Democratic board members. All are up for reelection in November, and some face challengers in the June 20 primary.
An issue that may come to the forefront as the case proceeds is the attorney fees that have been mounting over the last three years of litigation.
“This court case has cost the county hundreds of thousands of dollars on teams of high-priced lawyers,” Gloss said.
Wheeler said that the county paying for all of the supervisors’ attorney fees.
“While there’s pending litigation, the only comment that I have is that it is unfortunate a case such as this has already cost the taxpayers of Prince William County over $150,000 (in attorney fees) with more certainly to come.”
Gloss said he anticipates a quick resolution in the circuit court. “Hopefully the court issues a ruling based on the original case and the Supreme Court decision so that the taxpayers are not paying for their defense any longer,” he said.
Reach Cher Muzyk at cmuzyk@fauquier.com
(5) comments
There is no gate that keeps people out at Heritage Hunt. The security booth screens those who enter for just that purpose, security. Given the vicious, personal attacks Jackie Chidders continuously launches at everyone to intimidate them into silence it’s easy to see why anyone would want more security. The residents there are average citizens who volunteer in their community, served their country or had long professional or public service careers. They care about the integrity of elected officials. Jackie cannot address the issues of any piece, and is left to engage in negative campaigning against average citizens. Oh… and before Jackie decides to launch another false accusation, NO, I am not a felon. But exactly who is Jackie? …. this is at least their 5th “identity”. Integrity?
Obviously, I meant plaintiffs.
How do you continue to essentially proclaim this a nuisance case when the Virginia Supreme Court sided with the defendants? Shouldn't that at least give you pause? Making a mistake in a crisis situation is forgivable. Entrenched hubris is not.
Not surprising. This fits a well-worn pattern of behavior by the current Board majority to avoid transparency and treat their public office like a private club. These are the same folks who liberally use non-disclosure agreements to negotiate sweetheart corporate give-aways, safely shrouded from public scrutiny. They collude privately, limit open policy debate, dismiss expert opinion and ignore public input.
Chair Ann Wheeler said that the county is paying for all of the supervisors’ attorney fees and commented: “it is unfortunate that a case such as this has already cost the taxpayers of Prince William County over $150,000 with more certainly to come”.
No kidding it’s unfortunate, but why is “more certainly to come”? If the adjudged wrongdoers would simply admit their error and fold their tent, the taxpayers of Prince William County could be spared the burden of shoveling more good money after bad. Why are the taxpayers responsible for picking up the tab for certain Board members’ bad judgment and improper conduct? As one of the plaintiffs suggested, “board members should reimburse the county for breaking the open meetings law”.
These autocrats are unfit for public office and need to be replaced. Get a head start in the June 20th Democratic primary.
Does the guy that live in a literal gated club with a HUGE fence and security guards to keep common folks really want to talk about private clubs? Does the guy that was involved with a frivolous lawsuit against the county for the CPA that got laughed at by the judge and thrown out of court want to talk about costing the county money in attorney fees? Are you and HH going to reimburse the county for their attorney fees for your frivolous lawsuit?
The Board listened to the broad public support for their initiatives and your individual screaming and crying voice wont drown out the broader public!!
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