Attorney defends supervisors’ decision to meet privately

Posted on Wednesday, October 24, 2012 at 4:48 pm

An attorney for Caroline County defended a decision by the Board of Supervisors to hold a private meeting to discuss the Frog Level Rescue Squad, but the board came under additional scrutiny for the manner in which it subsequently voted to close the squad.

The supervisors went into an executive or closed session during their regular meeting of Oct. 9. They cited state law that allows them to discuss personnel and legal matters in private.

When the board resumed its public session, it voted on a recommendation of Fire-EMS Chief Jason Loftus – which they had discussed in private – to close the rescue squad. However, the supervisors only announced they were voting on his recommendation without revealing the substance of the proposal by Loftus.

Two days later, Count Administrator Charles Culley announced the board’s decision to close the rescue squad.

Alan Gernhardt, an attorney for the Virginia Freedom of Information Act Advisory Council, said earlier the law does not allow governing bodies to meet in secret to discuss organizational changes of local government. The provision of the law would prohibit a private discussion of the recommendation by Loftus, he said.

He also questioned the propriety of the private meeting, suggesting the personnel provision for closed sessions would not apply because the rescue squad members are volunteers over which county officials have no direct control.

Culley and Loftus did not respond to requests for comment about the assessment offered by Gernhardt, but Culley referred the requests to county attorney Ben Emerson.

The supervisors clearly were within the law in holding the closed session, Emerson said in a series of e-mails to The Caroline Progress, because the law allows them to discuss the performance of departments, including individuals, in private.

As to the issue of whether volunteer rescue squad members are considered personnel for the purpose of the Freedom of Information Act, Emerson noted that the squad functions as part of the county’s department of fire-rescue and emergency management, “and the county exercises substantial control over it and all other volunteer rescue squads and fire departments operating in the county.” The squad must abide by county operating policies and procedures and report to Loftus, he noted.

“For all of these reasons, it was appropriate for discussion in closed meeting as expressly permitted by statute,” said Emerson.

He elaborated on the issue in a subsequent e-mail, saying that squad members who do not follow policies and procedures, who do not keep their training current, “or who otherwise act inappropriately can indeed be disciplined and reprimanded by the county and/or no longer permitted by the county to respond to calls.”

“The county does not have the authority to remove a member from membership in his organization without the consent of the organization,” wrote Emerson, “but it does have the authority to remove a member from the roster of members who may respond to calls and to forbid a member to use any equipment owned by the county. A squad cannot legally permit a member to run calls if the county has told it that the member is not permitted do so.  Thus, the ultimate control over the members who are permitted to provide EMS services lies with the county.”

However, Gernhardt and an advocate for open government both criticized the supervisors for the way they handled the vote on the recommendation by Loftus. Gerhardt and Megan Rhyne of the Virginia Coalition for Open Government suggested the supervisors erred by not disclosing the substance of the recommendation when they voted on it in public.

“They have to identify what they’re voting on,” said Gernhardt, who cited an applicable provision of state laws.

“They have to say what they’re voting on,” he added.

Rhyne agreed. The vote by the supervisors, without identifying the substance of the motion, “seems to go against” state law, she said. Rhyne suggested the newspaper seek legal counsel.

In his e-mails, Emerson did not respond to questions raised by Gernhardt and Rhyne about the vote on the recommendation by Loftus and how it was conducted.

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