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School Board to appeal FOIA verdict, award of fees

Attorneys for the Suffolk School Board will appeal the verdict handed down last month by a Suffolk Circuit Court judge who ruled the board and the majority of its members violated provisions of the Freedom of Information Act.

The notice of appeal was filed in Suffolk Circuit Court Aug. 13, “the defendants … by counsel, hereby give notice of appeal to the Supreme Court of Virginia from the final judgment of this Court, including the Order entered on the 7th day of August, 2020 and the Final Order entered on the 10th of August, 2020,” the notice of appeal states.

The Aug. 7 order pertains to what the court found to be the board’s FOIA violations, and its sanctions related to them, while the Aug. 10 final order awarded board member Sherri Story, who filed the FOIA lawsuit against the board, attorney’s fees of $21,950 and $3,056.42 in other costs, including filing fees, service fees and court reporter fees.

Though the attorneys litigating the case for the board — Ann Sullivan and Deborah Collins — did not reply to a request for comment by press time Aug. 14, board attorney Wendell Waller, in an email, cited a part of the Aug. 7 order and a bench memorandum to note what the board believes were “errors committed” during the trial, and its reasons why the court should not have awarded attorney’s fees and other costs to Story.

Circuit Court Judge Carl Eason Jr., following a four-day trial last month, ruled that the board and the majority of its members violated FOIA with regard to meeting notices, vague closed meeting notices and certifications of closed meetings.

Eason said that the board — including Chairwoman Phyllis Byrum, Vice Chairwoman Dr. Judith Brooks-Buck, Lorita Mayo, Tyron Riddick and Karen Jenkins, all named as defendants in the lawsuit — did not provide adequate notice of public meetings and ruled that the motions going into closed meetings were too vague. He also said the certifications of closed meetings were “not sufficient.”

The Aug. 7 order notes that the board believed the court to be in error on the following:

  • By failing to apply the “clean hands defense”
  • Finding that the board violated the Virginia Freedom of Information Act by not reading verbatim a resolution certifying a closed meeting when such a requirement is not required under Virginia Code Section 2.2-3712(D)
  • Exceeding its authority … in that its order is overly broad in issuing a writ of mandamus by ordering the board to perform a discretionary act, to perform it in perpetuity, to follow a general course of conduct, to comply with the statute where the School Board has already revised its procedure to be in compliance, to exercise compliance for matters for which no violations were found by the court.
  • Finding that Story had standing as an aggrieved party and was denied the rights and privileges under the Virginia Freedom of Information Act
  • Finding that two members of a public body with no delegated responsibilities to act on the behalf of the public body — Byrum and Brooks-Buck — constitutes a committee of the public body subject to the public meeting notice requirements of the Virginia Freedom of Information Act, and in considering allegations not plead with reasonable particularity

The clean hands defense, according to Law.com, is “a rule of law that a person coming to court with a lawsuit or petition for a court order must be free from unfair conduct (have ‘clean hands’ or not have done anything wrong) in regard to the subject matter of his/her claim. His/her activities not involved in the legal action can be abominable because they are considered to be irrelevant. As an affirmative defense (positive response) a defendant might claim the plaintiff (party suing him/her) has a ‘lack of clean hands’ or ‘violates the clean hands doctrine’ because the plaintiff has misled the defendant or has done something wrong regarding the matter under consideration.”

In the summary of the 20-page bench memorandum against the award of attorney fees and other costs, Sullivan noted that Story should not be entitled to them because she did not “substantially prevail on the merits of the case,” and noted that there are special circumstances that would make an award of costs and fees unjust.

“Because (Story) failed to prove the major portion of her case, with only few technical violations found, she has not ‘substantially prevailed’ in the proceeding,” the summary of the bench memorandum states. “Additionally, the evidence presented at trial shows that any violations of the Virginia Freedom of Information Act were inadvertent and unintentional, minor and technical, and taken upon advice of counsel.

“There was no evidence of any willful and knowing violation by the Board and no evidence of bad faith. No action taken by the School Board was invalidated by any violation found by the Court, and no violation prejudiced (Story). Accordingly, the evidence demonstrates ‘special circumstances’ which render an award of attorney’s fees against the School Board unjust, and (Story’s) request for costs, including attorney’s fees should be denied.”

Story’s attorney Kevin Martingayle said prior to the filing of the appeal that if an appeal were to be filed, it would be “the essence of throwing good money after bad.”

“The judge didn’t do anything that is punitive in nature,” Martingayle said. “All he did was point out to them some obvious problems that needed to be corrected. He put into place corrective measures, he gave Ms. Story a modest award of attorney’s fees and costs because we were careful with our billing. And he suggested that they get back to the mission at hand, and that’s exactly what they need to do.”