Town Manager asserts December 1 Closed Session motion was altered to specify ‘actual’ litigation – but would that alone make it FOIA compliant?

Queried about the omission of a December 1 Closed Session motion “subject” or case reference if actual litigation was to be discussed, in an emailed response Town Manager Steven Hicks asserted that the closed meeting motion wording had been altered from what had been circulated, to indicate that the closed session discussion WOULD be about actual, filed litigation.

“I have consulted with legal counsel who was present at the open meeting on December 1, 2021, and who provided legal counsel during the closed session which followed. Heather Bardot and I concur that the motion which preceded the closed session was made properly in accordance with Virginia Code. As stated during the motion, the closed session was for purposes of discussing and obtaining legal counsel regarding actual, ongoing litigation (emphasis added),” Hicks responded by email at 11:53 a.m. December 13th.

However, the minutes of the December 1 Special Council meeting approved by council about seven hours after receipt of the above email on December 13th indicates the original unspecified motion into closed that was circulated with the agenda prior to the meeting was what was read into the meeting record of December 1.

The minutes of Dec. 1 closed meeting approved by town council the evening of Dec. 13, indicating no change to the originally circulated closed meeting motion citing ‘actual or probable litigation’ as the ‘subject’ of meeting. Royal Examiner Photos by Roger Bianchini

So, did the entire Front Royal Town Council, mayor, and staff present December 13th forget what motion Vice-Mayor Lori Cockrell read into the record just under two weeks earlier, or could the town manager be mistaken about an altered motion being offered? Regardless of the answer to that question, it appears whichever motion was read and approved still does not identify which former town employee and which filed litigation was discussed behind closed doors. And THAT degree of specificity to “subject” and “purpose”, as elaborated on in some detail in our related, story “Did Town Council’s December 1 ‘Special Closed Meeting’ violate multiple FOIA laws?”, is what we believe Virginia Freedom of Information Act (FOIA) law requires of any elected municipal or state body in order to legally go behind doors closed to the public who elected them and media that reports on their actions to that public.

And despite what we believe is substantial evidence for that degree of specificity offered in the above-referenced story, much of it ascertained from the executive director of the Virginia FOIA Advisory Council, obviously, there is disagreement on the Town of Front Royal side, including by its outside contracted law firm representative Heather Bardot, referenced in Town Manager Hicks email. Perhaps a clue to the still undisclosed “subject” of that closed session discussion might be offered by Bardot’s presence for it. We verified with former Front Royal Town Council Clerk Jennifer Berry’s attorney’s office that Bardot is the Town’s legal counsel in the federal sexual harassment litigation filed by the former council clerk referenced in our above FOIA compliance story.

What DOES go on behind closed doors in town hall, some former (Jennfier Berry) or soon-to-be former (Doug Napier) employees may be wondering.

Why not specify?

This reporter remains at a loss to explain the Town’s digging in of its collective “heel”, through its town manager, on this simple question about what “actual, ongoing litigation” was discussed on December 1? What would be lost if like the county government and the County EDA, the Town simply named the litigation to be discussed behind closed doors? No legal strategies or evidentiary assertions would be revealed, just a case name and vague reference to the behind-closed-door meeting’s “purpose” as in a need for legal counsel input or approaching filing deadlines. We cite that latter “purpose” because of the FOIA compliance issue raised about the December 1 meeting, not only being an unscheduled special one, but apparently also an “emergency” one in the bypassing of the FOIA three-day public notice requirement for coming meetings not called on an emergency time-frame basis.

In his December 13 email referenced above, Hicks went on to address that question about the “emergency” meeting requirement, again without any specificity, adding: “There was a time-sensitive need to convene this special meeting on December 1, 2021 …” But again, what the emergency was and in relation to which actual litigation with what former employee, remains a mystery: “TRUST us, it WAS an emergency – whatever it was in whatever case it was!!! Why do you care so much about what cases we’re using Town taxpayer money to pay outside attorneys to represent us on?” seems to be the logic at play here.

But as stated above, one can only wonder at what town officials, elected or appointed, fear is to be lost by going by what appears to be FOIA law on disclosure of the “subject” of actual litigation to be discussed behind doors closed to the public and media under strict legal guidelines.

Perhaps it is time to bring those elected officials into the conversation, rather than rely on staff intermediaries hired to manage the day-to-day business of town government.

Let’s get council to weigh in on the FOIA compliance issue, rather than the town manager who takes his policy direction from them – THAT is who he takes his policy direction from, right? File photo of council work session with Town Manager Hicks and former Interim Mayor/Interim Town Manager and then part-time Director of Business Development Tederick discussing the agenda’s direction in lower left of photo.

Maybe we’ll correct that contact omission in a nice Christmas story and follow up email that could be printed out and placed under their trees by Santa. So, council members, you’ve had FOIA law compliance sessions, right? What’s your opinion on the level of “subject” and “purpose” specificity required to go behind closed doors to discuss “actual ongoing litigation”?

OH, and by the way, which motion was read into the open session record on December 1 to allow convening of the special, emergency meeting closed session, the one presented as part of the December 1st minutes that you approved December 13th that was circulated to the media prior to the meeting, or the one quoted by Mr. Hicks above that added: “actual ongoing” to describe the litigation to be discussed? – Not, as we noted above it seems to make much difference as to FOIA compliance.

And one more thing – hush up, Santa, I know it’s Christmas Eve, I’m almost finished – any chance of finding out what the emergency (as it might apply to “purpose” by FOIA standards) was that allowed Mayor Holloway to call that special meeting under the minimum three-day public notice requirement for non-emergency matters?

Thank you for your time and attention – and a Merry Christmas to all, and to all a good night.

(Norma Jean Shaw contributed to this story.)