Schools

School Board's E-mails: 'A Way to Skirt the Law'?

Attorneys spar over where e-mails fall in state's FOIA laws.

Fairfax County School Board members and FCPS officials who e-mailed each other before and during a vote to close the Clifton School "met secretly" and broke FOIA laws, lawyers said yesterday in a case before the Fairfax County Circuit Court.

Lawyers on both sides of the FOIA case took about three hours in all this morning to close their arguments before Judge Leslie Alden at the Fairax County Courthouse. Lawyers have until late March to file 15-page post-trial briefings before Alden hands down any decisions.

School board members who e-mailed each other “didn’t just receive information,” said T. Michael Guiffre, of Patton Boggs in Washington, D.C., who is representing the plaintiff, Clifton resident Jill Hill.

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“Deliberations had already occurred outside of the public meeting,” he said, referring to the July 8 meeting that board members voted to close Clifton Elementary School. “E-mail can be defined as immediate. You can look at an e-mail and see if it’s a ‘letter’ or a conversation. If it rises to the level of a conversation, at that point it’s a meeting. They’re [the school board] finding a way to skirt the law.”

Lawyers for the school board fired back. “Where’s the simultaneous meeting? You won’t see it here,” said Stuart Raphael of Hunton & Williams in McLean and an attorney for the school board. “Members can’t talk to one another one-on-one? We should treat them as jurors? That’s just nuts. That’s never been the rule. Imagine what life would be like if members of public bodies couldn’t communicate with each other before a meeting.”

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The definition of a meeting between public officials was bandied about in the courtroom throughout the two-day hearing.

“You don’t have a meeting unless you have three people talking to each other simultaneously," Raphael said. "The rule they’re advocating is that local government officials can’t talk to each other. It’s unprecedented.”

“Here, they’re trying to invalidate a meeting,” he said. “What e-mail tripped over the line to invalidate a meeting?”

In addition to accusing the board of meeting secretly, Hill also contends the board broke the law when school board member Patty Reed sent e-mails to an FCPS official during the meeting and listened to the meeting remotely while on vacation.

“There is a violation here,” Guiffre said. “It comes down to how you interpret the word ‘participate’ and I’ll leave that to the court.”

Lawyers for FCPS said it was “ironic” that Elizabeth Schultz, a parent who actively supports keeping the Clifton School open, e-mailed a board member during the July 8 meeting, 15 minutes before the vote to close the school.

“The irony is you have a Clifton parent lobbying a board member during the meeting,” Raphael said.

“I’m not subject to FOIA,” whispered Schultz, who was seated with onlookers observing the trial. Attorneys for Hill repeated that assertion later in the morning.

Attorneys for Hill also noted that FCPS lawyers intentionally kept Schultz out of the courtroom on Wednesday to keep her from attending the hearing, by saying they might need her as a witness (all witnesses waited outside the courtroom until they were called).

“We were going to call her, but in the lateness of the day we didn’t,” Raphael said, noting that Hill’s testimony touched on questions they had planned to ask Schultz.

Another contentious point was whether the county readily produced documents for Hill within the five business day timeframe. Hill requested, under FOIA, e-mails between school board members so she could see what they discussed before voting to close the school. FCPS lawyers went through dates the county received the requests and reasons why some were delayed, which included snow days, requests that arrived after close of business, e-mails that dealt with personnel issues and misunderstandings of what Hill had requested.

One thing both sides agreed on: The attorneys for FCPS agreed with Hill's attorneys that the county should not have charged Hill in advance last summer for an FOIA request she made that cost $178. FCPS can only charge in advance if the amount is more than $200.

FCPS attorneys also revealed that Hill requested more documents earlier this year, and got them: all 15,500 pages or 1.3 gigabytes.

“That’s a huge burden on the school system,” Raphael said.

Hill’s lawyers argued that attorneys’ fees should be paid by Fairfax County. 

“They’re desperate to get attorneys’ fees,” Raphael said. “If they prevail on this $178 issue, that is not enough to recover attorneys’ fees.”

Meanwhile, Clifton Elementary School is scheduled to close at the end of the school year. The principal of the school sent a letter home last month stating that it would close after school ends in June. Students would attend Union Mill, Fairview and Oak View elementary schools.


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