A quorum of Patrick County Board of Supervisors members attended the February Economic Development Authority (EDA) meeting on Feb. 26 and the West Piedmont Planning District Commission (WPPDC) meeting on Feb. 27, raising concerns about potential Freedom of Information Act (FOIA) violations.
Supervisors’ Attendance at WPPDC Meeting
Jonathan Wood, chairman and representative of the Peters Creek District, and Clayton Kendrick, of the Mayo River District, serve as Patrick County’s representatives on the WPPDC board.
Steve Marshall, who represents the Blue Ridge District, is not a WPPDC board member and attended the public meeting on his own.
Jim Adams, WPPDC chairman and Henry County Board of Supervisors chairman, said the meeting proceeded as usual.
“No one at West Piedmont or no appointed member at West Piedmont did anything wrong. Our meetings are open to the public, so absolutely anyone—public and press—can come to the meeting,” Adams said.
Adams, who typically acknowledges attendees, introduced Wood as a new board member. “As part of our agenda, we have an open comment period. I had also met someone else attending the meeting that night, and that was Mr. Marshall, from the Patrick County Board of Supervisors, who is not a commissioner,” Adams said.
Adams said no one knew or was told what Marshall’s purpose was in attending the meeting. In the past, he noted that generally in those cases, people either state the reason or their interest in attending.
“From my perspective, I didn’t know his purpose for being there,” Adams said. “That could be better answered by him than by me assuming. I’ve got more on my plate than to just take off and go to a meeting” that he has no reason to attend, he added.
While he wasn’t privy to any potential conversations between Marshall and others before or after the meeting, Adams said there were no exchanges during the meeting involving Marshall.
“Nothing was said to us about the reason for his presence. It seemed awkward, even to the appointed commissioners, that a third member from an elected body was there,” Adams said. “I think the Code of Virginia states that if (a quorum of) elected officials gather, the press needs to be notified that they’re going to gather.”
While multiple elected officials can coincidentally attend the same public event— such as at public venues and small events—Adams said he could not recall a time in his 24 years on the WPPDC when three members from the same locality showed up at a meeting.
He wanted to assure residents that the situation was “no violation of West Piedmont whatsoever. We were just there to conduct business. This was not a backdoor meeting.”
Kathy Lawson, vice-mayor of Martinsville and a WPPDC member, said that Marshall did not sit at the table with the commissioners or participate in the public meeting. “It’s different if they sit at the table and participate,” Lawson said, adding that a third elected official’s attendance “is odd, but it’s not the first time this has ever occurred.”
After the meeting, Lawson was introduced to Marshall, who she said told her he was “there to learn” or something to that effect.
WPPDC Executive Director Kristina Eberly, who has been with the organization for four years, said she had never seen a situation like this before.
“Very rarely do we have anyone else other than our board members at the board meeting,” she said.
Adams advised localities and elected officials to follow self-imposed decorum and ensure compliance with Virginia’s FOIA regulations.
“In Henry County, any instance that could include a gathering of more than two board members is always advertised,” he said.
“Before I left, Jimmy Adams wanted to see me back in the office for a minute, and he told me basically the same thing. He said, ‘now I recognize him as a member of the board of supervisors attending the meeting as a citizen, but that still doesn’t make it right,’” Kendrick said.
After leaving the WPPDC meeting, Kendrick said he told Wood that Marshall’s presence meant that a quorum of supervisors attended the meeting.
The Feb. 27 meeting minutes will be reviewed at the next WPPDC meeting on March 27.
Concerns Over EDA Meeting Attendance
Before the Feb. 26 EDA meeting, Kendrick said Overby, who is vice-chairman of the board, had expressed interest in attending because of an agenda item.
“So, I had invited him to the meeting. Then Marshall showed up, so you’ve got three members there too,” Kendrick said. Despite forming a quorum, neither Kendrick, Overby, nor Marshall left the meeting.
“I actually confronted Steve that night,” Kendrick said. “I told him, ‘Andrew asked me earlier today about coming, and I told him it’d be okay. Now, here we are, and your presence makes it illegal. You need to leave.’”
Kendrick said Marshall “said it was legal” and refused to leave the meeting. Kendrick said he was told “that it was legal to be there, three board members at the same place, as long as they didn’t discuss business. How do you attend an EDA meeting or a WPPDC meeting and not discuss business?”
At EDA meetings, Kendrick said Marshall sits through executive (closed) sessions, something he has never seen another supervisor do. Years ago, former Supervisor Denise Stirewalt attended EDA meetings out of interest in a particular item. However, Kendrick noted that she left when executive session began.
“Marshall stays,” Kendrick said. That “isn’t right,” especially with EDA or WPPDC, where some items discussed are sensitive, “that you want to kind of have a little bit of control over, and who spreads it and who hears it.”
Overby said he has not seen any guidance that prohibits supervisors from attending public or closed session meetings, providing they do not interject or participate.
“My understanding is as long as we keep our mouth shut,” all five members of the board can attend closed session meetings of any committee appointed by the board if they desire, Overby said.
“Unless we’re interjecting and participating, I haven’t seen any guidance that says we can’t” attend, Overby said. “It was brought up that we were not allowed to speak about county business during the meeting or any time before or after,” and he said that did not occur. “It’s no different than attending” a public event, such as the Strawberry Festival.
“I would agree that actively participating” would be a concern, “but if we’re just observing” committees appointed by the board “it’s not an issue,” Overby said. “We have every right to sit through closed session. I don’t see anything wrong with it.”
“I think it’s fair and it’s right if you got something of interest in the meeting that you want to attend, at least have the courtesy of asking whoever’s liaison to it,” Kendrick said.
“Three of us at the last meeting asked that same question” about potential FOIA violations, EDA chairman Ron Haley said, and added that he was told it wasn’t a violation for three or more supervisors to attend the same meeting, as long as they don’t discuss business.
“Somebody had already done the research on it beforehand, and that’s what they were told. You can have all five supervisors there as long as they do not talk county business they can be there just to observe,” Haley said.
“All the EDA board members were there when the question was asked for the third time. I asked the first time, somebody else asked the second time … I forgot who that was,” Haley said, and added that Kendrick, who is the liaison, was the only one participating in the discussions. The others “don’t discuss, they listen,” he said.
“It was pretty unique how it happened,” James Houchins, director of Economic Development and Tourism, said, adding that he cautioned the board members to not sit in proximity to each other and not to talk.
“The biggest thing is the optics,” Houchins said. “Who’s to say they wouldn’t have had a discussion? I just know in this instance, there was no discussion, and they didn’t say anything.
“That was the first and pretty sure it will be the last” time it occurs, Houchins said. Going forward, “what I think will probably need to happen is as a group, they need to fully govern themselves.”
FOIA Implications
According to Virginia’s Freedom of Information Act (FOIA), a meeting is defined as an assembly of a quorum or majority of a board where public business is discussed—whether or not minutes are taken or votes are cast.
Virginia FOIA Advisory Council Executive Director Alan Gernhardt, Esq. said the presence of three supervisors meets the criteria for a meeting.
“Therefore, whether a meeting occurred in either scenario depends on whether the members present discussed board business with each other,” Gernhardt said.
“If they did discuss board business with each other as a group of three, it would have been a board meeting, but if they did not, it would not be a board meeting. For example, if the members who showed up to see what’s going on just sat in the audience and listened without discussing any board business with the other members, it would not be a meeting,” he said.
However, Gernhardt said having three supervisors go into the EDA’s closed session is an issue.
“I’d want to know why and what they discussed in the closed session. It doesn’t look good from a public and outside perspective,” he said.
The EDA can invite anyone into closed sessions, provided that person is going to be helpful or necessary to the discussion. Gernhardt noted it makes sense for the county’s liaison to the EDA to be in closed session.
“If it’s another one who is somehow related to the topic, has expertise on the issue that he’s reporting to them – possible. But if they’re there as board members at the EDA meeting and especially if the closed meeting happens to something” that “overlaps between the board and the EDA, then yeah, I’d want to see that probably noticed as a joint meeting,” Gernhardt said.
Wood did not return a call for comment after learning about the subject matter.
Marshall did not return multiple calls for comment.
