School Board, Story settle FOIA case

Published 8:37 pm Monday, March 1, 2021

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The Suffolk School Board and the member who sued it — again — have reached a settlement in a second Freedom of Information Act case.

Rather than a trial that was supposed to start March 1, Jeremy Capps, an attorney representing the Board, and Kevin Martingayle, representing board member Sherri Story, announced to Suffolk Circuit Court Judge Carl Eason Jr. that they had reached a settlement agreement pending the board’s approval of it at its March 11 meeting.

Terms of the settlement were not disclosed, other than that the board would “comply with FOIA henceforth,” though both sides agreed to 24 joint stipulations of agreed-upon facts in the case.

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“We have been in talks for a long time in this matter … and we have finally reached an agreement,” Martingayle said in court.

This second FOIA case centered around an investigative report that resulted from Superintendent Dr. John B. Gordon III’s hostile work environment complaint against Story, and actions the Board took that Story alleged were in violation of the Act. The report found his allegations credible, though it said there was not enough evidence to support a “legally actionable” case based on race. It did say that because Story disclosed publicly that Gordon was the person who filed the complaint, that it “creates at least some risk of an actionable retaliation claim.”

Story’s first FOIA case against the Board was the subject of a four-day trial last summer, in which Eason 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. He ruled that not allowing remote attendance in closed meetings was not a FOIA violation, and that polling Board members also did not violate the Act.

Eason ultimately ordered the board to read the Freedom of Information Act within 14 days of the ruling and get training on it within 60 days. At a subsequent hearing, he awarded Story just over $25,000 in attorney’s fees and other costs resulting from the case.

Martingayle said assuming the Board agrees to the settlement of the case, that it would then submit to the court a dismissal order with prejudice, which means the matter could not be brought back before the court again.

Said Capps: “We have reached an agreement in which we believe this matter can be resolved.”

Eason said the case would be continued until later this month after the board’s meeting.

The two sides had been in mediation with retired Judge Robert S. Brubaker Jr. since January — doing so virtually — according to Martingayle and Capps, but they did not work out the final terms of a settlement until more than 30 minutes after the scheduled start of the trial.

Martingayle also agreed to a partial non-suit with former board member David Mitnick because he has resigned from his position.

Story filed the second suit in December, alleging several FOIA violations. They included:

4Alleging that the Board failed to comply with public notice requirements for a special meeting held Dec. 15 and using an inaccurate motion for a closed meeting.

4Denying her a copy of the investigative report that stemmed from Superintendent Dr. John B. Gordon’s hostile work environment complaint, and also not allowing Story to participate in the closed part of the special meeting.

4Passing a pair of resolutions without fully disclosing to Story and the public the subject of the resolutions — the report.

4Publicly releasing and prominently posting on the division’s website a link to the resolution and a redacted version of the report, saying that it was “clearly flawed” and passed in violation of the act, then not attaching it to the resolution when it was approved. The suit also alleged that the version posted on the division’s website is not the same version that was the subject of the Board’s votes Dec. 15.

The allegation that the Board did not comply with public notice requirements for the special meeting noted that it voted at its Dec. 10 meeting to hold a special meeting five days later at the College and Career Academy at Pruden to review and receive the investigative results of the complaint.

In a January filing with the court, Capps argued that only one working day had passed before the announcement of the special meeting was posted on the division’s website, which he stated was “reasonable under the circumstances,” citing state law.

He also argued that denying her the report before, during and after the special meeting did not violate FOIA, noting that she “had no greater right to access the report than she would have in her capacity as a citizen of the Commonwealth,” said it was exempt from mandatory disclosure and therefore “did not have a right to receive the report before there was a public vote by the School Board to release the report.”

Story, as did the rest of the public, was able to access a redacted version of the report on the division’s website Dec. 16, the day after the special meeting. It is currently posted in the division’s news section and on the Board Docs website as an attachment to the item on the Dec. 15 meeting regarding action on closed items.

Capps also argued that it was Story’s choice not to take part in the closed session, though she objected to having to give up her cell phone prior to it starting. She, like then-Board member Mitnick, was given permission to attend the meeting remotely but learned when they arrived to the remote site that they would have to agree to give up their cell phones and sign their name certifying that it would not use “any electronic recording device to transmit closed meeting discussions.” Story signed her name to the certification but did not agree to give up her cell phone.

Capps also had argued in the filing that the resolutions — one to accept the findings of facts and recommendations of the independent investigation and the other waiving attorney-client privilege to allow for the public release of the report — were valid.

He argued that since the report was not subject to mandatory release, that the Board was not required to make the report available to the public at the time it was provided to the Board. He said the Board voted on the resolutions during the open portion of the meeting, and that FOIA does not have anything about adding attachments that are noted in the resolution.

As for posting the redacted report on the division’s website, Capps said in his filing that the Board “had the right to redact and release information in the report” and said that even if there were redaction errors or omissions in the report that was released, “Story has not alleged that she was in any way denied rights and privileges afforded by the (Virginia Freedom of Information Act) due to redaction errors and/or omissions.”

School Board attorney Wendell Waller received a pair of emails from the Virginia FOIA Advisory Council asking whether there had been FOIA violations by the Board. The answers noted that FOIA does not address whether asking for recording devices to be surrendered violates the Act.

The Council said that since it was unclear whether notices for the special meeting were posted other than online — at a prominent public location or at the office of the clerk or chief administrator — and it wasn’t clear if it was posted “contemporaneously with the notice provided the (Board) members.

It also said that based on the provided information, that the closed meeting motion and the discussions afterward did not violate FOIA. The Council also noted that because Story took part remotely due to a personal matter, “the public body may set its own policy on such participation,” but also noted that because the directive to not allow cell phones in closed meetings came from the Board chairwoman, FOIA does not address that aspect and while “not necessarily” violating FOIA to not allow her into the closed meeting, it couldn’t say whether it was in the chairwoman’s authority to do so.

The Council also stated that “it does not appear to be a FOIA violation” of the Board by not providing Story a copy of the investigative report during the open meeting but made available to her and the public the day after the special meeting. It said FOIA “does not provide for any special access rights for government officials or employees.”

It did say that, “as a matter of best practices, it is generally better if attachments and the like are prepared in advance when possible, but given that the School Board may not have known what its decision would have been … it is understandable in this situation that the report may not have been ready beforehand.”