Red Apple Mom

March 19, 2011

Briefly Speaking

Map of Virginia highlighting Fairfax County

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The plaintiff’s attorneys in the case alleging that the Fairfax County School Board violated the Virginia Open Meetings Law and the Freedom of Information Act, released their brief as submitted to the Fairfax County Circuit Court last Thursday.

FCPS’ attorneys will submit their brief to the Court this coming week.

The plaintiff’s attorney’s brief runs 15 pages.  Click here to read the entire brief.

Below you will see main points contained in the brief.  To maintain accuracy, I copied the material directly from the plaintiff’s attorney’s document.

  • The outcome of this case will have a tremendous impact, not only on the Clifton community, but also on all residents of Fairfax County and the Commonwealth.  The Fairfax County School Board and other public bodies will see the extent to which it is permissible to discuss public business when the public is not watching.
  • By conducting its deliberations behind closed doors in the days prior to the July 8th vote, the School Board violated Virginia’s Open Meetings Law and committed further violations during the July 8th meeting itself and subsequently violated Petitioner Jill D. Hill’s rights under the VFOIA (Virginia Freedom of Information Act) when she tried to learn why the Board voted to close CES (Clifton Elementary School).
  • The Petitioner asks this Court to intervene – not to substitute its views for those of the Board – but rather to ensure the Petitioner and the Board’s other constituents are afforded their right to observe how “the business of the people is being conducted.”
  • The use of email as a means to converse has become so pervasive that the Supreme Court of Virginia held that Email can constitute an “informal assemblage” under the OML (Open Meetings Law) requiring public notice and an opportunity for the public to observe the transaction of public business.
  • The School Board members sent hundreds of Emails over a few days with intervals as short as 2-4 minutes.  The Board members did not use the Email communications as the functional equivalent of letters.  Rather they used Email to discuss their positions, often Emailing back and forth within a short period of time, and to convince other Board members to vote with them on CES.
  • In addition, the Board members engaged in numerous verbal communications with each other, both in person and by telephone.
  • Evidence that the Board members committed numerous OML violations consists of the Board’s own written words and testimonial admissions.   Petitioner, therefore, anticipates that the Respondent will cling to its spin that individual Emails do not constitute an informal assemblage because they allegedly are not among three or more members in an attempt to distract the Court and hope that it misses the forest for the trees.
  • The record as a whole established that 1.) The Board cannot meet its burden to establish there were not three or more members involved in the written and verbal discussions and 2.) most, if not all School Board members engaged in a series of Email, in person and phone conversations with other members, in which everyone ascertained each others’ positions and certain Board members lobbied for votes.
  • The General Assembly has mandated that VFOIA be “liberally construed to…afford every opportunity to citizens to witness the operations of government.”  VA Code 2.2-3700.
  • Ms. Bradsher admitted that she knew it would be a violation to “have a conversation” with two or more Board members outside of open meetings. To avoid that, Bradsher was “very careful” to ensure that everyone knew how the other Board members were going to vote by engaging in email exchanges and then forwarding them to other members with the instruction not to forward them any further, at times skirting the letter of the law but violating its purpose, a purpose that was well known to Bradsher and other Board members.
  • The Court should not permit the Board to use these underhanded tactics to avoid public awareness and scrutiny of its actions.
  • Reed asked whether the water report should be publicly posted and Goddard promptly forwarded the well-water report to Smith and Wilson.  Within minutes, Wilson responded that she had checked with Smith and Smith stated that it could wait until after the meeting.
  • Not posting the report clearly violated the VFOIA, especially given the report’s importance to the CES (Clifton Elementary School) votes.  The School Board discussed the report during the meeting, and it had determined during a June 29, 2010 Work Session that “the decision to close or renovate Clifton ES (sic) School should be based on the issues of the reliability of the water supply” and two other factors.
  • Respondent attempts to downgrade this VFOIA violation by noting that (Dean) Tistadt verbally summarized the contents of the report during the meetings.  Nonetheless, withholding a document provided to the Board for its consideration during an open meeting is a violation of the VFOIA.
  • …the Court should not establish new law that a public body can comply with the VFOIA statute by withholding materials and simply summarizing them.
  • In discussing the (water) report’s impact, Bradsher quoted an Email from her daughter, which she received during the meeting, emphasizing how dangerous the water was due to incomplete testing for Radium 228, even though the undisclosed well water testing report indicated a minimal risk of Radium 228 contamination.
  • Ms. Bradsher’s discussion of Radium 228 misled many meeting attendees, including Petitioner Hill, to believe that the well water should still be considered unsafe.
  • Petitioner is “entitled to recover reasonable costs, including costs and reasonable fees for expert witnesses, and attorneys’ fees from the public body if the petitioner substantially prevails on the merit of the case, unless special circumstances would make an award unjust.
  • Respondent committed numerous VFOIA violations when Petitioner sought to avail herself of her rights to access the School Board’s public records.

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© 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.

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1 Comment

  1. […] Read the condensed version as reported by Red Apple Mom here. […]

    Pingback by Attorneys for Clifton Release Case Brief | Common Sense — March 20, 2011 @ 12:31 am


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