The judge heard the final arguments yesterday in the case alleging that Fairfax County Public Schools (FCPS) violated the Open Meetings Law and the Freedom of Information Act (FOIA). For anyone new to this issue, the case focuses on events related to the School Board’s vote last summer to close Clifton Elementary School.
Several people have asked for my personal observations about this trial. I am not going to speculate how the judge is going to decide this case. However, I will say the following: I was deeply disturbed by the aggressive approach FCPS’ attorney used to question the parent who brought this case forward. I was also disturbed by their attempt to bring up the name of another parent whose name appears on the FOIA’d emails but who is not a plaintiff in this case. The FCPS lawyer’s approach demonstrated a new low for FCPS. Parents aren’t on trial. FCPS is.
The parent who filed this case did so because it is the only legal recourse available. She is simply following the legal procedures made available by the Virginia General Assembly in accordance with FOIA. Furthermore, it should be noted that Fairfax County has no appeals process when the public finds itself in wide disagreement with a vote made by the FCPS School Board. The parent who filed this suit did so because she believes the vote to close Clifton ES was not a transparent process and because she alleges FCPS violated her rights for accessing public information and public documents. If she wins, and I hope she does, the public will owe this brave woman, and her supporters, a debt of gratitude!
As I sat in Court yesterday, I was struck by the thoughtful and probing questions the judge presented to both sides in this case. It left me thinking that if our School Board had demonstrated the same thoughtfulness by completely vetting and addressing the public’s concerns – to the public’s satisfaction – then I wouldn’t be sitting in that courtroom and I wouldn’t be anxious about how much the School Board’s rush to a vote will eventually cost taxpayers in terms of legal fees.
Here’s my summary of the proceedings and arguments yesterday:
ALLEGED OPEN MEETINGS LAW VIOLATIONS VIA EMAIL:
The arguments focused on the emails sent between School Board members in the days leading up to the vote and during the meeting itself. The plaintiff’s attorney argued that email itself constitutes a meeting if email “rises to the level of a conversation.”
Plaintiff’s Attorney:
“There is a wide web of emails. There are open meetings violations. This isn’t just receiving information. This was deliberative information. The deliberations already occurred before the School Board meeting (to close Clifton ES).”
To further prove their point, plaintiff’s attorney presented a document demonstrating what they describe as a “wide web of emails” including timelines showing what they allege is a “frenzy” of emails between School Board members concerning the Clifton issue. (6-21-10 Email Timeline, 7-1-10 thru 7-8-10 Email Timeline, 7-8-10 Email Timeline – Well Results)
Plaintiff’s attorney also presented several legal cases to the judge arguing the cases demonstrate other Court rulings that serial emails violate the Open Meetings Law. (see below under additional materials)
The FCPS attorney argued that emails do not constitute “a meeting within a meeting.”
FCPS’ Attorney:
“They (plaintiffs) are trying to establish that members can’t speak one to one except in a meeting – treating them as jurors. That’s just nuts. Where are the emails that show three or more members?”
JUDGE:
“You are saying it doesn’t matter what the content is?”
FCPS’ Attorney:
“There is a lot of email back and forth and it is not a judicial setting. They are legislators. Which email shows the meeting? They can’t answer your question judge. The idea that members can’t talk about their positions – members of public bodies send memos to each other all the time. It’s not the way it works and never has.”
At this point, the FCPS Attorney presented the judge with a Flow Chart that he said is the criteria the judge should use for determining if there are FOIA violations.
ALLEGED OPEN MEETINGS LAW VIOLATIONS VIA SCHOOL BOARD MEMBER REMOTE PARTICIPATION:
(Full disclosure here on my part. I worked on Patty Reed’s ‘09 campaign for School Board.)
School Board Member Patty Reed was a focal point in yesterday’s arguments too because she was absent for the actual vote but was following the proceedings LIVE via the FCPS-provided webstream. It was Patty Reed who emailed the Clerk of the Board and her fellow Board members asking if FCPS Chief Operating Officer Dean Tistadt’s memo concerning the Clifton ES well water results was being made available to the public.
The Plaintiff’s attorney argued that Patty’s email indicates she was a participant in the meeting even though she wasn’t physically present.
Plaintiff’s Attorney:
“Reed is listed as absent. She accessed the hearing live and received the well results. She knew it was an important piece of information for the public to know about and she emailed the Clerk of the Board. As a matter of fact, she was a participant in this process and there are very specific rules in FOIA about members and participation. FOIA says that remote locations should be accessible to the public. We are not arguing the intent to violate it, but she did. It comes down to, ‘How do you interpret participation?’” (Reed Email to Clerk of School Board re: Well Results, Reed/Tistadt Email on Well Results)
FCPS’ attorney called this issue “the elephant in the room.”
FCPS’ Attorney:
“The email from Patty Reed to Pam Goddard (Clerk of the Board) clearly is not participation. She did not advocate her position – did not communicate with more than two members. She just watched the hearing. She is also one of the dissenters who wanted to keep Clifton ES open. The irony abounds.”
ALLEGED FOIA VIOLATIONS OF EMAIL:
Plaintiff’s attorney’s argued that the evidence they produced to the Court demonstrate numerous, documented FOIA violations and that FCPS had full knowledge of FOIA rules.
Plaintiff’s Attorney:
“This School Board is lawyered up. They had legal counsel advising them the entire way. What they did, they did with knowledge. We cannot prove intent because you can’t, but they had knowledge.”
JUDGE:
“Are you counting any email between one Board member to another as a FOIA violation?”
Plaintiff’s Attorney:
“If they are back and forth conversations and responses, then you get into violations. Here we saw a frenzy of emails between Members and some forwarded one to another and some one to one. In reality, everyone knew each other’s positions based on phone calls and emails (before the meeting).”
The plaintiff’s attorney also argued that FCPS has demonstrated undue delays for failing to provide FOIA’d documents that another judge has already compelled FCPS to produce.
FCPS’ attorneys said that claims FCPS has omitted documents is an overreach.
FCPS’ Attorney:
“Some 5000 records have been produced by FCPS to date. That is quite substantial. The only documents withheld are those identified as exempt. We are fine for an in camera review by the Court of the additional documents.”
FCPS’ Attorneys then argued that the Court should decide the main case immediately. Plaintiff’s attorney asked, “Why the rush to judgment? We have thrown a lot at the Court in a short time so a limited briefing is fair.”
The judge agreed.
So the next step now is that the plaintiff’s attorneys have until close of business (COB) on March 17th to submit a post-trial brief to the judge of no more than 15 pages. FCPS’ attorneys have until (COB) on March 28th to submit their post-trial brief of no more than 15 pages.
Then we wait for a ruling from the judge. That could take between two weeks to three months from the date the judge receives FCPS’ post-trial brief.
ADDITIONAL MATERIALS
© 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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