Enterprise Article 3.12.25

Enterprise Article 3.12.25

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 Countys 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 Marshalls 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 didnt 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 wasnt 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. “Its 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 Marshalls 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 “isnt 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 cant” 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. “Whos 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 its 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.


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