While there were a lot of unusual things occurring at the last Christiansburg Town Council Meeting (open discussion, raising of issues, asking questions, paring the budget), there was one event during the last few minutes that captured my attention because it revolved around my personal pet peeve, FOIA (Freedom of Information Act).
During the last few minutes, an event occurred which has not been seen in Christiansburg Council Chamber in decades (if not in forever). The Mayor rose from his seat and picked up a packet of manila envelopes. He told council members that he was passing this out and that it contained “Confidential Personnel Information” upon which he hoped Council could act at the next Town Council meeting.
Obviously, this had to be big news for it to be announced in such an unusual manner. (Usually, these things are just passed out to council without citizens having any knowledge.) Clearly, it was intended to make people aware that the information contained was confidential and they wanted the audience to be sure and understand that fact.
Unusual behavior always captures my interest. So, I found myself wondering what could be up? Was someone resigning or something? Was this the resignation of the Chief of the Rescue Squad that some had been expecting? I have been keeping track of bills affecting FOIA and could not think of anything that would have precipitated such a change. Guess my only other option would be to go to the LIS website, pull up the FOIA Codes and start reading again. Here is what I found:
- From: § 2.2-3705.1. Exclusions to application of chapter; exclusions of general application to public bodies. The following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law:
- 1. Personnel records containing information concerning identifiable individuals, except that access shall not be denied to the person who is the subject thereof. Any person who is the subject of any personnel record and who is 18 years of age or older may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, the public body shall open such records for inspection and copying.
- § 2.2-3705.8. Limitation on record exclusions.
- A. Neither any provision of this chapter nor any provision of Chapter 38 (§ 2.2-3800 et seq.) of this title shall be construed as denying public access to (i) contracts between a public body and its officers or employees, other than contracts settling public employee employment disputes held confidential as personnel records under § 2.2-3705.1; (ii) records of the position, job classification, official salary or rate of pay of, and records of the allowances or reimbursements for expenses paid to any officer, official or employee of a public body; or (iii) the compensation or benefits paid by any corporation organized by the Virginia Retirement System or its officers or employees.
- The provisions of this subsection, however, shall not require public access to records of the official salaries or rates of pay of public employees whose annual rate of pay is $10,000 or less.
- B. Nothing in this chapter shall be construed as denying public access to the nonexempt portions of a report of a consultant hired by or at the request of a local public body or the mayor or chief executive or administrative officer of such public body if (i) the contents of such report have been distributed or disclosed to members of the local public body or (ii) the local public body has scheduled any action on a matter that is the subject of the consultant’s report.
As a quick aside, I see that my favorite section of the code still exists:)
- § 2.2-3707. Meetings to be public; notice of meetings; recordings; minutes.
- H. Any person may photograph, film, record or otherwise reproduce any portion of a meeting required to be open. The public body conducting the meeting may adopt rules governing the placement and use of equipment necessary for broadcasting, photographing, filming or recording a meeting to prevent interference with the proceedings.
When “Confidential Information” is involved, one can reasonably expect a ‘closed meeting’ to be just around the corner for discussion (remember that no action can be taken during the ‘closed meeting’, just a discussion on the matter to be acted upon. Since the Mayor did note it was confidential personnel information, that narrows the scope of what would constitute such a meeting. This information can also be found in the FOIA. Here are those sections applicable to ‘personnel’:
- § 2.2-3711. Closed meetings authorized for certain limited purposes.
- A. Public bodies may hold closed meetings only for the following purposes:
- 1. Discussion, consideration, or interviews of prospective candidates for employment; assignment, appointment, promotion, performance, demotion, salaries, disciplining, or resignation of specific public officers, appointees, or employees of any public body; and evaluation of performance of departments or schools of public institutions of higher education where such evaluation will necessarily involve discussion of the performance of specific individuals. Any teacher shall be permitted to be present during a closed meeting in which there is a discussion or consideration of a disciplinary matter that involves the teacher and some student and the student involved in the matter is present, provided the teacher makes a written request to be present to the presiding officer of the appropriate board.
- 4. The protection of the privacy of individuals in personal matters not related to public business.
- B. No resolution, ordinance, rule, contract, regulation or motion adopted, passed or agreed to in a closed meeting shall become effective unless the public body, following the meeting, reconvenes in open meeting and takes a vote of the membership on such resolution, ordinance, rule, contract, regulation, or motion that shall have its substance reasonably identified in the open meeting.
- C. Public officers improperly selected due to the failure of the public body to comply with the other provisions of this section shall be de facto officers and, as such, their official actions are valid until they obtain notice of the legal defect in their election.
- A. Public bodies may hold closed meetings only for the following purposes:
Given the above excerpts from FOIA (the full text is available at the Legislative Information System website), it would seem reasonable to assume that either someone is resigning or someone is being disciplined. However, in order to make reasonable assumptions, one must be operating within a ‘reasonable environment’. Since we’re dealing with the Christiansburg Town Council, where the ‘reasonable person’ test would be hard pressed to find a basis for comparison, who knows. Rumors are already running rampant with the most common two being the Rescue Chief or the Town Manager are resigning. Perhaps a FOIA request is in order so that if it is refused the actual statue involved would be noted. That would at least give people a general idea but no specifics.
