Will School Board’s minutes vote head off FOIA lawsuit?

Published 6:14 pm Friday, July 15, 2022

Isle of Wight County’s School Board, on July 14, retroactively amended its April 5, April 26 and May 12 meeting minutes — seemingly in hopes of heading off at least one of the claims Carrollton resident Katie Carter Lemon made in a Freedom of Information Act lawsuit.

Lemon filed the suit on June 28, alleging that the School Board violated Virginia’s FOIA law by failing to disclose in its recorded minutes the location from which Vice Chairman Michael Cunningham had participated remotely during the board’s April 5 and 26 meetings.

“It has come to our attention that the minutes for the April 5 and April 26, 2022 meetings do not indicate the locations from which Mr. Cunningham participated remotely,” Chairwoman Denise Tynes said, noting that the board’s May 12 meeting minutes would also need amending to include the location from which board member Michael Vines participated remotely.

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The amended April 5 and 26 meeting minutes now list Cunningham as participating from his home in Smithfield “due to medical reasons.” The May 12 meeting minutes now state Vines participated from his home in Windsor, also for medical reasons.

The lawsuit is Lemon’s third against the school system concerning FOIA in the past three years. She filed two complaints in 2020, both of which, according to past reporting by The Smithfield Times, accused the board of providing insufficient details to the public regarding decisions to enter closed session, and communicating an incorrect start time for board meetings.

Prior to Lemon’s 2020 lawsuits, the School Board had advertised its meetings as starting at 6 p.m., though they technically begin at 5 p.m., with the board then immediately entering a nearly hourlong closed session. Though then-Chairwoman Jackie Carr had denied at the board’s Jan. 14, 2021, meeting that members had willfully violated FOIA, though school officials acknowledged in Judge Matthew Glassman’s Jan. 20, 2021, order that “motions to go into closed meetings in October 2020 were not specific enough for purposes of compliance with the Virginia Freedom of Information Act.”

In the same order, Glassman required the board to make “good faith efforts to post full, official and signed versions of minutes of meetings online as soon as reasonably possible after the meeting minutes have been approved by the School Board.”

It remains to be seen whether Glassman, again assigned as the judge who will hear Lemon’s latest case, will deem her claim moot now that the board has amended its minutes, versus view the board’s action as tantamount to an admission of yet another FOIA violation.

Even if Lemon’s claim regarding the minutes ends up dismissed, her lawsuit makes a second allegation against the school system: that the School Board violated FOIA in the manner in which it approved now-retired Superintendent Dr. Jim Thornton’s amended contract and retirement payout.

The School Board initially voted at its March 10 meeting to approve a “proposed amendment” to Thornton’s contract “as discussed in closed session.” When School Board Attorney Pakapon “Pak” Phinyowattanachip advised that to comply with Virginia’s open records laws, the board would need to state publicly what had changed, Tynes called a roughly 10-minute recess. When the board reconvened and took a new vote, Cunningham read into the record that the board had “agreed to honor” Thornton’s “request to be released from his contract, effective June 30, 2022, in order to retire.”

“Supposedly, there was no business conducted by the Board during the recess because there was no motion to go into a closed meeting, nor any certification of any closed meeting if one took place,” Lemon’s lawsuit states. “From the circumstances, however, it appears that additional discussions and decisions regarding the superintendent’s proposed amended contract took place during the ‘recess.’”

Virginia’s FOIA law requires public bodies proposing to convene a closed-session meeting to first vote in open session on a motion that identifies the closed session’s purpose and cites the applicable exemption in state law from Virginia’s open meeting requirements.

Lemon further alleges the board to have signed off on a contract to provide “transition appropriations” to the retiring superintendent that left the specific dollar amount for his accrued but unused vacation, sick and personal leave blank.

“Either the School Board and its members know the precise or at least approximate amount and have failed to reveal it publicly or, in the alternative, they have approved a ‘gross payment’ and ‘transition’ appropriations’ without knowing what they were approving,” Lemon’s lawsuit contends.

According to Isle of Wight County Schools spokeswoman Lynn Briggs, at the time the School Board approved the amended contract, Thornton’s days of leave had not been finalized, which is why the amount was left blank.

The Smithfield Times submitted a Freedom of Information Act request to the school system on July 12 for the specific dollar amount and other documents specifying the “transition appropriations” provided to Thornton and is awaiting a response.