County supervisors at the first meeting of their new term unanimously passed a new rule raising the possibility of punishing colleagues who speak out about what happens behind closed doors.
The Board of Supervisors’ new rules of order include a new provision detailing what happens if a supervisor speaks publicly about what happens in a closed-door meeting. Virginia’s Freedom of Information Act allows elected officials to hold closed-door meetings and shield records from public disclosure in certain situations, but in almost no circumstances requires it. The state law also does not prohibit elected officials in one of those closed-door meetings from talking about what happens in that meeting publicly if they choose.
But under the new local rules
County Chairwoman Phyllis J. Randall (D-At Large) and Supervisor Matthew F. Letourneau (R-Dulles) doubled down on the new rules after reporting on the proposal before the vote caused a social media stir.
Randall said the board only meets in closed session “when we absolutely have to,” and said, “what we would never want is somebody to come out of closed session and talk.”
“What we did was say that, you know, closed session items will stay in closed session, and if somebody comes out and speaks, then there could be some type of reprimand,” Randall said. She added: “We are an incredibly, incredibly transparent body, but there are times when we we can’t do things in the open, so we don’t.”
Supervisors meet regularly behind closed doors, often to discuss legal strategy in pending lawsuits or negotiations in acquiring real estate—situations where discussing their strategy in an open meeting could put them at a disadvantage. There are no publicly available records of what supervisors discuss in closed session.
Randall also criticized that reporting, both from the dais and in comments on Loudoun Now’s Facebook page, calling reporting on the story “misleading.”
“Our BOS has now simply said no BOS member should disclose close session BOS information,” Randall wrote. “We only go to close session to discuss contract negotiations, litigations or personnel issues. Those items should not be shared, if a BOS member makes a decision to share a closed session item the full BOS will not be held accountable. I, as well as another Supervisor spoke about this at tonight’s meeting. It is unfortunate this article is so unclear[.]”
Supervisor Matthew F. Letourneau (R-Dulles) also defended the new rules.
“I believe it’s always been the board’s practice and understanding that those items remain confidential,” Letourneau said. “We’re dealing with personnel issues, with items that result from litigation, and we discuss our strategy in things that it really would be highly inappropriate for a board member to discuss publicly with anyone outside that room.”
County Attorney Leo Rogers said he proposed the new rule after attending a conference which raised the possibility of losing attorney-client privilege for the board if a supervisor released information from a closed session meeting.
“You could lose the attorney-client privilege just by having one member of a governing body, intentionally or inadvertently, releasing your letter or your memo,” Rogers said.
In particular, he cited a 2006 federal court case, Chase v. City of Portsmouth, in which the court ruled the attorney-client privilege of a letter from the city attorney had been waived—but protected the letter from public disclosure anyway under a different rule.
In that case, the owners of a vacant building sued the city after the council denied a permit to renovate and reopen the building as a church. Before the vote, the city attorney had sent a letter to council members that warned they risked a lawsuit if they denied the permit.
During the lawsuit, the plaintiffs asked the court to compel the city to produce that letter during discovery. The court ruled the council waived the attorney-client privilege protecting that letter by not taking reasonable precautions to keep the letter confidential, and by not objecting when one council member discussed the letter in open session.
But the letter nonetheless was protected from discovery. The court moved that although attorney-client privilege had been waived, the letter was still protected under the work product doctrine, which protects materials prepared in anticipation ofa lawsuit.
Ultimately, the city settled with the plaintiffs for $850,000, on top of providing adjacent land valued at $17,500.
In another case in 2010, Walton v. Mid-Atlantic Spine Specialists, the Virginia Supreme Court ruled a doctor could not keep a letter to his attorney—in which he admitted he may have made a mistake examining a patient—out of the record after it was given to the plaintiff during discovery. The courts ruled he waived attorney-client privilege by failing to take reasonable actions to ensure the confidentiality of the letter.
The Supreme Court found a lower court’s decision to let the doctor keep the letter out of the record allowed the defendant’s attorney to “to engage in questioning that had significant potential to mislead the jury.”
“Parties should not be permitted to use the privilege as both a shield, preventing the admission of evidence, and as a sword to mislead the finder of fact by allowing evidence that would be impeached by the privileged information if it had not been suppressed,” the court wrote.
This article was updated Thursday, Jan. 9 at 2:08 p.m.