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.
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.