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Board chairwoman, superintendent face FOIA lawsuit

A city resident has filed a lawsuit alleging the Suffolk School Board, chairwoman Dr. Judith Brooks-Buck and Superintendent Dr. John B. Gordon III violated the Freedom of Information Act by denying her access to an open meeting.

The civil suit, filed by Deborah Wahlstrom in Suffolk Circuit Court Aug. 19, is the third involving FOIA and the School Board in just over a year. The board has appealed the first suit, filed by board member Sherri Story, to the Virginia Supreme Court. Another case, also filed by Story, was settled in March. A scheduled Aug. 24 hearing on the new case was continued until 9:30 a.m. Sept. 14.

Wahlstrom alleges she was denied access to the July 22 School Board retreat that was held at the College and Career Academy at Pruden in violation of the act’s provisions regarding open meeting access.

Kevin Martingayle, who has represented Story in her FOIA cases, is also representing Wahlstrom, who alleges in her suit that she attempted to enter the meeting room at CCAP prior to the start of the meeting, but was told by Brooks-Buck and Gordon that she would not be allowed to sit in the room to view the meeting and would instead have to watch it via video at a designated area near the school’s entrance.

In the suit, Wahlstrom also alleges that Brooks-Buck told her the board’s retreat was a “closed meeting” — something Waller, in a letter to Martingayle, contends never happened — and after not leaving the meeting room, she alleges that someone representing the School Board contacted Suffolk Police “complaining that Dr. Wahlstrom would not leave the meeting space as she had been directed.” The suit said Wahlstrom left the meeting space after Suffolk Police told her if she didn’t, she would be forcibly removed and arrested.

“Reluctantly, Dr. Wahlstrom departed the meeting space and was deprived of an opportunity to view the supposedly public School Board retreat,” the suit alleges, and the board, it states, “conducted what was effectively a ‘closed meeting,’ regardless of how the School Board chose to label, describe or characterize this meeting.”

Board member Tyron Riddick had posted a portion of the encounter with Wahlstrom to Facebook during the day of the retreat, but the video is not now available on his page.

The public notice of the School Board retreat on the school division’s website states that it would meet at 8 a.m. July 22 at CCAP, and that the notice was provided as required by the Virginia Code section governing public meetings and notices of them. There was nothing stated that access to the meeting room would be restricted.

A Suffolk News-Herald reporter who also attempted to access the meeting room that day was also asked to view the meeting on a screen from the area set up near the school’s entrance, and was told that Brooks-Buck did not want anyone else in the room other than board and division staff due to COVID-19. No other members of the public attempted to access the meeting room after 11 a.m.

Martingayle and School Board attorney Wendell Waller exchanged letters, disagreeing on whether a FOIA violation had taken place.

Martingayle, in a July 30 letter, said there was nothing to indicate any restrictions on public access and people are “entitled” to sit in the same room as the board during an open meeting. If the meeting was a closed meeting, Martingayle said, then there are several FOIA violations, including no open meeting to start, no closed meeting motion, no return to an open meeting and no closed meeting certification. If it was open, Martingayle said there would have been no reason to remove Wahlstrom from the meeting or restrict public access to it.

Waller, in his letter dated Aug. 3, said Martingayle’s legal conclusion that the board violated FOIA “is not supported by law or fact.” In Martingayle’s citing of an advisory opinion from the Virginia Freedom of Information Advisory Council, Waller said the facts surrounding that situation are different than the ones Martingayle cited when Wahlstrom was not allowed to be in the meeting room. In the advisory council’s opinion, it said seven members of the public were allowed into a particular meeting, while others were not allowed in and not allowed to view it.

“What occurred on July 22, 2021 is clearly distinguishable from the set of facts in (the council’s opinion,” Waller stated in his letter, stating six ways he believed the board’s retreat was different:

  1. The board was still dealing with the coronavirus pandemic and its consequences.
  2. No one from the public was allowed into the meeting room, including outside presenters, which were heard via the Zoom platform.
  3. The meeting room was set up to allow for interactive engagement by board members, and to allow for social distancing, which is why the CCAP meeting room was chosen. The meeting room at CCAP had five display boards and an interactive board, with an interactive board in the main lobby of the school.
  4. “Wahlstrom’s behavior was anything but peaceful” and had a “defiant and erratic outburst” that delayed the start of the meeting “and caused members of the school administration and school board members to become concerned about their personal safety.”
  5. Wahlstrom could view the meeting from the main lobby since the meeting was broadcast from the meeting room to the main lobby with live video and audio.
  6. Wahlstrom waited in CCAP’s main lobby area, where the agenda was posted on the interactive board, for the start of the meeting. After speaking with Story, Wahlstrom went into the meeting room, removed a chair from a stack and sat down.

Waller said none of the board’s activities July 22 was done in secrecy since the public knew of the time, date and location of the meeting and “afforded every opportunity to witness the operations of government, including Dr. Wahlstrom. It was because of her disruptive and belligerent behavior that she was removed from the meeting location by uniformed police officers and not able to witness the meeting.”

Waller said Virginia’s FOIA law does not say anything about meeting room size, how they should be set up and whether, or what technologies should be there to make meeting presentations and participation easier.

He also said Brooks-Buck never said the retreat was a closed meeting.

“It was clearly an open meeting as Sherri Story streamed the meeting on her Facebook page,” Waller wrote. “Had it been a closed meeting, recording of any kind would have been prohibited.”

His letter stated that Story instigated what happened in the meeting room July 22, saying she told Brooks-Buck that “she would sue the School Board again and win,” and said she continues “to engage in behavior that undermines the operations of Suffolk Public Schools and that of the School Board.”

He said Wahlstrom was using Virginia’s FOIA law as a weapon because she is “disgruntled” and not getting their way, and said it does not give people the right to exert “control” over the operations of government.

Waller, at the end of his letter, said the School Board is one of several public bodies in Suffolk, but it “draws the most attention” from a small part of the city. “Is this because the School Board is predominantly Black or predominantly female,” Waller asks. “I would certainly hope my suspicions are incorrect in this regard, but I cannot help but wonder.”

He then said another drawn-out case would not be productive for anyone.
“A protracted legal proceeding, similar to what is currently pending before the Supreme Court of Virginia, would, in my opinion, be a waste of everyone’s time, energy and the financial resources of Suffolk Public Schools,” Waller wrote. “We are still dealing with a pandemic and the school administration is working tirelessly to re-open schools safely in the fall for approximately 14,000 students and 2,300 employees.”

However, Martingayle said that with “an unfortunate history of violations involving the Suffolk School Board, … if we are forced to return to court once again, I think that there is the very real possibility — and perhaps a probability — that the responsible members of the School Board will be penalized as permitted by Code of Virginia Section 2.2-3714. It is also possible that violators will be held in contempt of court.”