Members of the Falls Church City Council appeared in direct violation of Virginia “open government” laws according to copies of e-mail correspondences among a number of them that occurred from last Saturday to Monday morning. The News-Press has secured copies of the e-mails, in which Council members, as well as members of the City staff, are “copied” in “reply-all” mailings.
By law, no more than two members of an elected body can engage in a discussion together about matters of policy without proper public notification of a meeting. Last weekend’s spate of e-mails is in clear violation of that, and when a school board official caught wind of it, she reacted strongly.
School Board chair Joan Wodiska e-mailed all the participants at 9:28 pm EDT Sunday, June 5, that, “I would again remind City Council members you cannot legally ‘reply all’ – doing so violates open meeting law.”
She added, “I am referring this matter to the City Attorney for immediate action and remediation.” She told the News-Press that as of yesterday, she had received no response from City Attorney John Foster or City Manager Wyatt Shields.
But “open government,” also known as “sunshine,” laws under various federal and state Freedom of information Act (FOIA) statutes are considered serious matters to insure the public’s right to know about the deliberations of its elected officials on matters of public policy. Only under precisely circumscribed conditions are governmental bodies allowed to meet in private.
In fact, in the Virginia State Legislative session completed this spring, the Virginia Press Association-backed HB 1457 passed and was signed by the governor to double the civil penalties for “knowing and willful violations” of the Freedom of Information Act by public officials.
None of the narrow conditions that allow for private discussions were involved in the weekend’s spate of e-mails, which began on Saturday morning with an e-mail communique from City Manager Shields notifying all Council members that he’d attached a draft “scope of work” for the task force proposed to examine the future use of the Child Development Center (CDC) property at 201 N. Cherry St.
The “open government” violations technically began with a “reply-all” e-mail from Council member Johannah Barry at 6:30 p.m. Saturday night that also included members of the School Board and the City staff.
That was followed on Sunday night when Council member Robin Gardner wrote at 5:43 p.m. and then came a “reply-all” at 9:12 p.m. from Council member Ira Kaylin. Then Mayor Nader Baroukh weighed in with a “reply-all” sent from his iPhone at 9:21 p.m.
At 9:28 p.m. Sunday came the firm warning of the violation of “open government” policy by Wodiska.
Moments later, at 9:30 p.m., however, Council member Gardner weighed in again on the “reply-all” discussion, and, finally, at 9:50 a.m. Monday morning, June 6, Barry “replied-all” yet again.
As for the subject matter of this unlawful discussion, it was a lively exchange over the make-up and scope of work for the task force that the Council determined it would form to hammer out the future of the CDC, and was clearly an extension of a discussion the Council had at its work session the previous week.
In particular, the viability of a negotiated solution that could result in a shared use of the CDC between the School Board and its current occupants, the Easter Seals’ day care program, was disputed, including proposed changes to the points of Shields’ memo, proposals for serving on the task force, and arguments for and against the notion of sharing the CDC space.
In the interest the public’s right to know, the News-Press here reproduces relevant comments by Council members on these matters:
Barry on June 4 at 6:30 p.m. wrote: “I am concerned that a fairly straightforward interaction between the School Board and the CDC has evolved into a larger issue over which, frankly, I don’t believe Council has any control. City staff has inserted Council into a debate which was well underway when the T.J. (Thomas Jefferson Elementary – ed.) expansion issue came before Cuncil. I take Robin’s point that she was unclear that the CDC was already a part of the equation when the expansion plans were presented to Council…I will look hard at any solution which financially encumbers the City at a dollar number higher than what the School Board has already indicated.”
Gardner on June 5 at 5:43 p.m. wrote: “I differ with Johannah on the point that this is not as straightforward a transaction as some may think. I am not the only one who didn’t believe that the approval of the T.J. Expansion was contingent on the schools getting the CDC…This is not just a cost issue, it is a human issue, as well..There is a cost involved with moving the schools into the CDC, too…There are options other than doing a $17 million renovation which we haven’t even talked about yet.”
Kaylin on June 5 at 9:12 p.m. wrote: “Any solution developed between the School Board and CDC (should) not require any additional City expense…The tone of the draft scope memo seems to imply that the School Board and CDC are equals in this discussion. If it was intentional I do not agree…I believe the School Board has already made it clear what they believe are the alternatives: millions of dollars for Mt. Daniel expansion or displacing of 70-80 families…of which about a third are residents of Falls Church.
Baroukh on June 5 at 9:21 p.m. wrote: “The scope of work for the task force needs to be agreed to by Council before any meetings so forward. We as a Council need to determined who will represent the Council on the task force.”
Gardner on June 5 at 9:31 p.m. wrote: “I indicated to Nader after the task force discussion that I would like to be the Council representative on this…I continue to be hopeful that we can come up with a solution that will benefit all parties involved.”
Barry on June 6 at 9:50 a.m. wrote, “Whoever is the Council rep to this task force (should) be prepared to represent the full range of Council opinion. It is critical to the discussion to ensure that all parties undertstand that the Council rep is there to be a faithful reporter of the dialogue and to provide a broad Council perspective to the issue or issues.”