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Plaintiffs win suit over officials' email exchanges, but pay for it

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    NMU         VIRGINIA         Freedom of Information         Dec 18, 2002    

Plaintiffs win suit over officials’ email exchanges, but pay for it

  • A Fredericksburg judge ruled that city officials’ e-mail exchange violated the open meetings law, but later sanctioned the three people who brought the suit for $8,000 in fines.

Three Fredericksburg officials — including the Virginia town’s mayor, vice mayor and a councilman — violated the state’s open meetings law when they e-mailed each other regarding city business, a circuit judge in Fredericksburg held Dec. 13.

But the three people who brought the suit, former Vice Mayor Gordon Shelton and Fredericksburg residents Anthony Jenkins and Patrick Timpone, must pay $8000 to the city toward legal costs for the five defendants over two claims that were dismissed from the suit.

The plaintiffs sued on 18 counts of violating the state’s open meeting law, five of the counts involved face-to-face meetings, the remainder involved email, according to plaintiffs’ attorney David Kaufman.

Judge John W. Scott Jr. ultimately dismissed all but one of the 18 counts. On that count, Scott ruled that because some of the e-mails were intended to reach consensus, they should have occurred in a public session. He found that other e-mail counts against city councilmen did not violate the law because they were intended to gather information rather than reach a decision. The judge found that only three of the five councilmen violated state law.

And although they won, Scott sanctioned the plaintiffs on two counts. Under Virginia law, sanctions are allowed if a judge finds that counts filed are not “well grounded in fact” or if they are “intended for any improper purpose, such as to harass or to cause unnecessary delay.”

“The court ruled that, in essence, we should have known better than to bring these two counts,” Kaufman said. “I disagree.”

The decision regarding the e-mail exchange, however, clarifies the state’s FOI Act, which prohibits three or more council members to engage in “electronic” communication meetings, but makes no direct mention of e-mail.

The case “sends a clear message that you can’t thwart the open meetings law by meeting via e-mail,” Kaufman said. “The judge’s rulings are clear: If you want to send material out to your colleagues for them to consider prior to an open meeting, that’s perfectly permissible. If you want to give colleagues an advance warning that you have a proposal to bring before the council, that’s permissible. But having done that, you may not then engage in a private discussion to reach a consensus before you go in the open.”

According to Kaufman, the plaintiffs will decide after reviewing the judge’s order whether or not to appeal any of the counts or sanctions.

(Shelton v. Beck; Counsel: David Kaufman, Fairfax, Va.; Michael Bransback, Dimuro Ginsburg & Mook, P.C., Alexandria, Va.) JL

© 2002 The Reporters Committee for Freedom of the Press

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