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County Board's Closed Session with Architect Held to Violate Virginia's Open Meeting Law
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(A revised version of this article will appear in The Construction Lawyer, Volume 27, No. 3, Summer 2007, published by the American Bar Association's Forum on the Construction Industry.)
September 10, 2007
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By Eric S. Casher
Thelen Reid Brown Raysman & Steiner LLP
An architectural firm entered into a contract with the Culpeper County (Virginia) School Board to plan, design and construct a new high school. The contract was later amended to add the Culpeper County Board of Supervisors as a party to the contract together with the School Board. The project was controversial, with different views of the scope of the new facility. After the contract was signed and amended twice, the County Board and the architectural firm, in meetings closed to the public, discussed what options for constructing the new high school facility would be explored and presented to the School Board.
Three newspapers, which were denied access both to the meetings and to any records of the meetings, joined in an action against the County Board alleging violation of the Virginia Freedom of Information Act, Virginia Code §§2.2-3700, et seq. (FOIA). Virginia's FOIA law generally requires open meetings but allows closed sessions when a "[d]iscussion of the award of a public contract involving the expenditure of public funds, including interviews of bidders or offerors, and discussion of the terms or scope of such contract, where discussion in an open session would adversely affect the bargaining position or negotiating strategy of the public body." Va. Code §2.2-3711(A)(30).
The County Board argued that a discussion with the architect, in a meeting closed to the public, was necessary to ensure a "candid and unrestrained" dialogue with the architect about the options available (including a possible expansion of the scope of the project), which might impact a future amendment of the Board's contract with the architects. The General District Court agreed with the Board, finding that the Board did not violate FOIA by closing the session and denied statutory attorney fees. The court reasoned that since the Board was a party to the contract, a closed session was appropriate to discuss matters related to the scope of the contract. The newspapers challenged the ruling in Circuit Court, which reversed as to the FOIA violation but not as to attorney fees. The newspapers challenged the denial of attorney fees.
On appeal to the Supreme Court, the newspapers argued that the purpose of the FOIA's exemptions, as applied in this case, was to protect the County Board's bargaining position, or negotiating strategy, vis-à-vis a vendor during procurement of a contract. Therefore, the exemptions did not apply to a closed session held after the contract was formed. The County Board argued that a proper reading of the statute would allow protection of discussions that, if disclosed, could adversely affect the negotiating strategy of a public body even if the discussion follows execution of a contract.
The Virginia Supreme Court held that the County Board violated FOIA by holding the closed session. White Dog Publishing, Inc. v. Culpeper County Board of Supervisors, 634 S.E.2d 334 (Va. 2006). The Supreme Court held that the closed session exemption only applied in "the context of awarding or forming a public contract, or modifying such a contract, where the public discussion would adversely affect the public body's bargaining position." Since the discussion here related to the "application and enforcement of the scope or terms of a previously awarded public contract," the public body's bargaining position as it related to the contract was unaffected, and the exemption did not apply. There was no discussion of changes to the terms or scope of the contract with the architect. Rather, the Supreme Court noted that the discussions between the County Board and the architect in the closed session involved the County Board's strategy in relation to the School Board with regard to the project, which was a public policy dispute. The Supreme Court reversed and ordered an award of attorney fees.
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For more information about the issues covered in this report, please contact Eric S. Casher in our San Francisco office at 415-369-7764 or at ecasher@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.
©2007 Thelen Reid Brown Raysman & Steiner LLP
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