Experts: Norfolk council's closed meeting not legal

NORFOLK

A closed-door City Council meeting on Feb. 15 to debate whether City Manager Marcus Jones should be allowed to grant severance packages to employees he fires violated the Virginia Freedom of Information Act, two

legal experts said.

City Attorney Bernard A. Pishko said the meeting was held properly and done in private to "respect the privacy and dignity of individuals under consideration."

"The closed session allowed the manager to meet with these individuals and agree upon the terms of their separation before they read it in the newspaper," Pishko said.

The council went into closed session under a provision of the act that Pishko said allows private discussions of personnel issues.

However, the discussion focused on the city's severance policy and not individuals who might be fired, according to council members Paul R. Riddick, Tommy Smigiel and Andy Protogyrou.

If no individual was discussed, "that's not closed-meeting material," said Alan Gernhardt, staff attorney for the Virginia Freedom of Information Act Council.

Megan Rhyne, an attorney and executive director of the Virginia Coalition for Open Government, said the council should not meet behind closed doors to debate proposed ordinances, even one that deals with personnel.

"Just as we expect our General Assembly to discuss proposed legislation in the open (which they do), we would have the same expectation of our local governments to discuss potential city ordinances in open session, too," she wrote in an e-mail.

The attorney general's office and freedom of information advocates contend that public bodies, such as a city council, may discuss only individuals who report directly to them, such as a city manager.

"The FOIA Council and the Attorney General have both repeatedly pointed out that bodies cannot use the personnel exemption to discuss employees over whom they have no authority," Rhyne said.

However, Pishko and most other city attorneys disagree with that interpretation and note that an opinion from the attorney general is not legally binding.

Police Chief Bruce P. Marquis, Human Services Director Thomas Pristow and Joseph Jackson, who headed the city's Juvenile Detention Center, all stepped down last week. Jones acknowledged earlier this week that Marquis will receive a severance package of up to six months of pay and benefits.

"The closed session allowed the manager to know what his options were with these individuals," said Pishko, the city attorney.

"It is not appropriate," he added, "to discuss resignations in public."

There are generally few consequences for violating opening-meetings laws. A government agency or municipality would have to be sued for violating such laws, which rarely happens.

In the last 18 months, the council has gone into closed session to discuss the credit card spending habits of Commissioner of Revenue Sharon McDonald, the purchase of a cell phone for a gang member by a city employee, a Community Services Board employee who was paid for 12 years even though she did not show up for work, and the controversial Midtown office tower.

A state report released late last year reported two previously unknown closed sessions in which the council discussed light rail cost overruns in 2007 and 2008. The cost overruns were not revealed to the public until months later.

Councilman Barclay C. Winn said he believes all of those meetings were held properly.

"I do not believe Bernard Pishko would allow us to go into closed session if it were not legal," he said.

Harry Minium, (757) 446-2371, harry.minium@pilotonline.com