Commentary: Why Is the Board Reconsidering Legal Services Transparency and Review?

On Thursday, January 8, the Warren County Board of Supervisors will vote on whether to reverse a transparency policy adopted just four weeks ago. The agenda calls it “reconsideration.” Let’s call it what it is: the new board’s first act could be to undo a Board policy ensuring public access to the legal reasoning behind the laws that govern our county.

The Legal Services Transparency and Review Policy was passed on December 9, 2025, by a 3-2 vote. I introduced it after watching two proposed ordinances — one regulating agritourism activities, one protecting groundwater from industrial-scale extraction/overuse — get derailed not as a result of policy debate, but by a process that prevented the relevant legal analysis from being discussed in public deliberation and/or debate.

What Happened with Agritourism?

On July 15, 2025, the Board held a public hearing on proposed regulations for agritourism activities. During the hearing, I asked planning staff a basic question: what objective standards would determine whether an agritourism activity has a “substantial impact” on public health, safety, and welfare? Before staff could answer, the County Attorney interrupted and recommended the item be tabled so the Board could receive his advice to substantial questions in closed session.

A member of the public correctly noted that Virginia law does not permit closing a meeting merely because an attorney is present or has been consulted. The hearing was never closed, and the motion was tabled. It remains tabled today — six months later — with no public resolution.

What Happened with Groundwater Protection?

On October 7, 2025, I introduced a draft ordinance to protect Warren County’s groundwater from industrial-scale extraction. Before any public discussion could occur, the County Attorney stated he would only provide his legal analysis in closed session, citing the creation or increase of risk to the county.

I requested his analysis in writing so the public could access the legal questions at issue in a public forum. He declined. I asked again the day before the scheduled public presentation. He did not reply.

With no opportunity for publicly accessible discussion and debate of the legal aspects of the proposed legislation, I finally withdrew the ordinance. The public never saw the legal reasoning. The Board never deliberated the legal aspect of the proposed legislation in the open. A policy initiative simply disappeared.

Why This Matters

Reasonable people can disagree about whether Warren County needs county-specific agritourism regulations or groundwater protections from industrial-scale well extraction. That’s what public deliberation is for — so citizens can hear the arguments, including the legal ones, weigh the tradeoffs, and hold their elected representatives accountable for the choices they make.

But in neither case did that open deliberation occur.

The agritourism text amendment was initiated by the County Attorney and recommended to Planning staff — not requested by any member of the Board of Supervisors. It reached a public hearing, but that hearing was interrupted by the County Attorney himself when I asked staff basic questions about the proposed regulation’s standards. He specifically recommended a closed session with himself and planning staff to answer “substantial questions” BOS members may have. The item was tabled without closing the hearing and remains unresolved six months later.

The groundwater protection ordinance was initiated by a sitting Board member — me. It never reached a public hearing at all. Without written legal analysis to inform public discussion, and with the County Attorney refusing to provide that analysis outside of closed session, I withdrew it. The legal aspect was obviously an important part of it and was nothing to deliberate.

In both cases, the County Attorney insisted on closed sessions with justifications like “protecting the County” and not wanting to “create or increase risk.” But these justifications don’t meet the standard established by the Virginia FOIA Council, which has clearly stated that the “legal matters” exemption applies only to specific legal transactions or disputes — not to general policy discussions that may eventually have legal consequences.

As the FOIA Council wrote in Advisory Opinion 01-07:

“[T]he ‘legal matters’ exception applies only to discussions of specific legal transactions or disputes and may not be used to justify closed meetings involving more general issues, even though those issues eventually may have legal consequences.”

Neither proposed ordinance involved a contract negotiation, a pending transaction, or an active dispute. They are legislative initiatives — exactly the kind of public policy deliberation that FOIA requires to occur in the open. Whatever one’s position on the merits of any legislation, the public deserves to see that debate happen. It didn’t.

What the Policy Does

The Legal Services Transparency and Review Policy addresses this problem with three straightforward requirements:

1.     Written legal analysis for legislative matters. When the Board considers ordinances, comprehensive plan amendments, or significant policy decisions, the County Attorney provides written analysis — not as a scholarly treatise, but as a working document that explains the relevant statutes, applicable case law, legal risks, and the attorney’s recommendation. This ensures supervisors understand the legal basis for their votes and creates a public record of the reasoning.

2.     Strict FOIA compliance for closed sessions. Any request for a closed session must cite the specific FOIA exemption being invoked, identify the specific legal transaction or dispute requiring confidentiality, and be submitted 48 hours in advance so Board members can assess whether statutory criteria are met. This isn’t a new legal standard — it’s what FOIA already requires.

3.     Quarterly reporting on legal expenditures. The Board receives a regular accounting of what we spend on legal services and what we’re getting for that investment. Basic fiscal oversight.

That’s it. The policy doesn’t prevent the County Attorney from advising the Board. It doesn’t eliminate closed sessions for matters that genuinely require confidentiality. It simply establishes that transparency is the default, which is what Virginia law already demands.

What Comes Next

Over the next few days, I’ll explain each component of the policy in more detail: what it requires, why it matters, and how it aligns with Virginia law and FOIA Council guidance.

On Thursday, the Board will decide whether to keep this policy or reverse it. That vote will tell us something important — not just about this policy, but about how our new board intends to govern.