Advocates: Culpeper case could deter open government violations in Virginia

Associated Press • Mar 10, 2007 at 9:30 AM

RICHMOND - Ninety-three thousand dollars.

That's how much the Culpeper County Board of Supervisors recently agreed to pay in a lawsuit brought by several newspapers over an illegally closed board meeting.

It's a large enough amount to give Virginia's open government advocates hope that other local and state officials will sit up and pay attention.

"It says to local governments around the state that there is a procedure that should be followed," said Ginger Stanley, executive director of the Virginia Press Association. "I think it will have a positive effect in keeping more meetings open in the state."

The Culpeper board voted in January to pay the money - legal fees incurred by the Culpeper Citizen, the Culpeper Star-Exponent and The Free Lance-Star in Fredericksburg.

The move came after the Virginia Supreme Court ruled unanimously in September that the board violated the state's Freedom of Information Act by going into closed session to discuss a school construction project.

"The law says that the board can go behind closed doors for negotiation of a contract," said Lawrence Emerson, then editor of the Culpeper Citizen, which brought the lawsuit. "But the contract had already been approved. That was the whole crux, really, of our case."

The court said the October 2004 meeting didn't fit into any exemptions to the law requiring public access to meetings.

Legislators strengthened the state's FOIA in 2000, increasing fines for first-time offenders - government employees who are found to have "willfully and knowingly" closed meetings or withheld information from the public - to between $250 and $1,000.

For second and subsequent violations, offenders are to be charged between $1,000 and $2,500.

The penalties have helped Virginia earn a reputation for having one of the nation's stronger freedom of information laws, said Forrest "Frosty" Landon, head of the Virginia Coalition for Open Government.

But the fines are rarely imposed, since Circuit Court judges are often reluctant to punish first-time offenders who, most likely, were ignorant of the law's requirements, he said. And officials usually don't violate a second time, since "they're not going to be able to use the excuse again that they just didn't realize what their obligations were," Landon said.

So, it's the ability of judges to award attorney's fees to victorious plaintiffs that really puts the teeth into Virginia's FOIA enforcement, Landon said.

Fees were also recently awarded in a 2005 lawsuit in which the Bristol Herald Courier sued to obtain police recordings in the suspected abuse death of a child, Stanley said.

In Culpeper, Emerson knew as soon as he heard of the board's closed meeting that legal action had to be taken.

"We had a history of problems with open government in Culpeper," he said. "It started well before we launched a newspaper there" in 2004.

County Attorney David Maddox has said that it was his decision to go into closed session during the Oct. 5, 2004 meeting.

Emerson, who is not a lawyer, filed suit several days after the meeting, naming the supervisors individually as defendants. Then The Free Lance-Star and the Star-Exponent got involved and the Richmond law firm of Christian Barton agreed to represent the plaintiffs.

Other papers, as well as the Virginia Press Association, joined the case when it was appealed to the Supreme Court.

The board voted in January to pay the fees, which will be covered by the county's insurance.

"I really don't want to make this motion, because I don't think we were wrong," Supervisor Sue Hansohn said at the meeting, according to the Star-Exponent. "But I'm going to make this motion to pay the bill because I don't think we have any other choice."

Landon said the case will likely act as a deterrent to future violations by the Culpeper board.

"The awarding of attorney fees clearly drove this home more than a $1,000 personal fine would have," he said.

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