Board approves settlement in FOIA case

Published 9:52 pm Thursday, March 11, 2021

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The Suffolk School Board has approved a settlement in a second Freedom of Information Act case that had been scheduled for a trial earlier this month.

As part of the board’s consent agenda, it voted 6-0 — with Sherri Story abstaining — in favor of the settlement agreement, in which it will pay the law firm of Bischoff Martingayle $20,000 in legal fees, which came about as part of a settlement agreement between Jeremy Capps, an attorney representing the Board, and Kevin Martingayle, representing Story, just prior to a scheduled trial March 1 in Suffolk Circuit Court.

The attorneys had told Suffolk Circuit Court Judge Carl Eason Jr. that they had reached the settlement agreement pending the board’s approval of it.

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The 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, but noted that there was not enough evidence to support a “legally actionable” case based on race. However, it stated 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 had filed the second suit in December, alleging several FOIA violations, including:

  • Alleging 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.
  • Denying her a copy of the investigative report that stemmed from Gordon’s hostile work environment complaint, and also not allowing Story to participate in the closed part of the meeting.
  • Passing two resolutions without fully disclosing to Story and the public the subject of the resolutions — the report.
  • Publicly releasing and prominently posting on the division’s website a link to the resolution, and a redacted version of the report, saying 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.

Though the report is subject to FOIA, it has been pulled from the division’s news section and as an attachment to the item on the Dec. 15 meeting regarding action on closed items.

In court, Martingayle had said that the two sides had been in extensive talks on the matter and had finally reached an agreement. He added that once the Board agreed to the settlement, he would submit a dismissal order with prejudice to the court, meaning the matter could not be brought back to the court again.

Both sides agreed to 24 joint stipulations of agreed-upon facts in the case.

The resolution the Board agreed to includes:

“…That given the Parties have resolved their differences, the City of Suffolk School Board approves the dismissal of the lawsuit filed by Sherri D. Story against the City of Suffolk School Board and Individual School Board Members, Judith Brooks-Buck, Phyllis C. Byrum, Karen L. Jenkins, Lorita W. Mayo and Tyron D. Riddick, with prejudice,

“… (and) That the School Board authorizes payment to Bischoff Martingayle, P.C. in the sum of Twenty Thousand Dollars and no cents ($20,000.00), in full and final payment of fees and costs associated with this matter.”

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

The Board has appealed the first FOIA case to the Virginia Supreme Court.