Red Apple Mom

February 26, 2011

Fairfax County Judge Denies Emergency Motion to Quash Subpoenas

Lawyers duked it out Friday in a pre-trial hearing about allegations that the Fairfax County School Board violated the Open Meetings Law and the Freedom of Information Act.

Round One (Friday) – Determining Who Will Testify:

Attorneys representing FCPS entered the courtroom Friday morning determined to quash the plaintiff’s subpoenas for the full School Board and four FCPS top-level staff to personally appear at the trial next week.

FCPS’ attorney told the judge that the subpoenas amounted to harassment of the School Board, adding that it would be a hardship for School Board members to appear at a day-long trial next week.  He stated that School Board is only a part-time position and most Members have jobs.

For a moment, it appeared that FCPS’ attorney had the judge convinced on that point.  But then the plaintiff’s attorney spoke saying, “It is up to FCPS to prove this is harassment.  It is up to FCPS to prove it is burdensome.  He hasn’t said why it is burdensome for them to come when we have juries that sit in that jury box for days.”

That got the judge’s attention.   Final decision – the judge said having all 12 School Boards attend the trial was excessive.   Only six will appear.

The six School Board members and four FCPS administrators who will appear in court and may be called to testify at next Wednesday’s trial

Dean Tistadt

include School Board Members Liz Bradsher, Tessie Wilson, Kathy Smith, Tina Hone, Patty Reed and Jim Raney.  The FCPS Staff witnesses are:  Dean Tistadt-Chief Operating Officer, Paul Regnier-Communications Spokesman , Pam Goddard-Clerk to the School Board, and Sara Kolb-Communications Department.

Round Two (Friday) – Admissibility of Documents:

FCPS’ attorney argued that all FOIA’d documents have been produced except about 100 documents that are exempt from FOIA.

The judge asked why they were exempt and was told that the 100 documents contained student or FCPS personnel information or were exempt due to client attorney privilege.

The judge pressed some more saying, “I get that notes during meetings are standard fare.  My clerk sometimes sends notes about the ties some attorneys are wearing.  Were School Board members really getting emails with attorney’s advice and about students during the meeting?”

FCPS’ attorney said her recollection was that these emails took place during the School Board’s closed session meeting.  The plaintiff’s attorney argued that the emails in question clearly were not distributing student information or having client/attorney discussions during meetings.

Final Decision:  The judge will personally review the 100 exempted emails Monday morning (officially called an “in camera review”) and determine if the redacted emails do indeed fall under the auspices of executive privilege and whether they are exempt from FOIA. 

What to Look For at Next Wednesday’s Trial:

This case is about process – not the substance of the emails. At the heart of the case is the Open Meetings Law and whether the FCPS School Board conducted the public’s business about the closure of Clifton Elementary School via email.  If what School Board members had said in private emails had been said in public at the meeting, the decision to close Clifton elementary school may have turned out differently.  So look for the plaintiffs to argue about why the Open Meetings Act matters and how the procedures put in place to protect people’s rights were not followed.

Stay tuned – I’ll have more after Wednesday’s trial.  The public may attend.  Location:  Fairfax County Courthouse, Fairfax City – 10:00am, Wednesday, March 2, 2011 – fifth floor.  Check the docket to determine which courtroom.  Note:  No cameras or cellphones allowed in court.

© Catherine Lorenze and Red Apple Mom, 2001. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Catherine Lorenze and Red Apple Mom with appropriate and specific direction to the original content.


  1. Finally, a judge pursuing JUSTICE! The arrogance and total disregard for the LAW by the school board is simply amazing. It is about time the judicial system applies checks and balances. Thank you RedMom for reporting on this landmark case!

    Comment by redmomma2 — February 26, 2011 @ 7:09 am

    • We will see on Wednesday how this all turns out. The burden is now on the plaintiff’s attorney to demonstrate wrongdoing by FCPS – not an easy burden! But you are correct RedMomma2 – our courts are giving the public the chance and that is to be celebrated!

      Comment by Red Apple Mom — February 26, 2011 @ 8:10 am

      • If the judge rules in favor of the Plaintiffs (Clifton advocates), what will they “win”? Is the goal a re-vote on whether or not to close Clifton, or action against the SB members who violated the Open Meeting laws??? Can a SB member lose their position if the judge rules they violated the law?

        Comment by fedupwithfcps — February 28, 2011 @ 10:23 am

  2. Can’t emphasize enough that this case is about the process–not the substance of the e-mails. No matter what the issue, FCPS has a pattern of shutting out the public when it comes to just about anything to do with our PUBLIC schools.

    Comment by pommefrites — February 27, 2011 @ 10:50 am

  3. Great questions! I’m told that if the plaintiff’s win, the judge will ask the plaintiff’s what recourse they want – which is most likely a re-vote of the Clifton closure. That outcome may not change, but at least the process would be transparent. Attorneys close to the case told me fines are sometimes levied in cases like this. While no one will be heading to the slammer, it is unlikely any School Board member would lose their position. I’m not certain what the School Board’s strategic governance rules say about these matters. If I have the opportunity, I’ll ask FCPS Spokesman Paul Regnier – he may be called to testify tomorrow.

    Comment by Red Apple Mom — March 1, 2011 @ 8:45 pm

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