Getting your Trinity Audio player ready...

The Virginia Supreme Court upheld a lower court’s ruling that the Suffolk School Board violated the state’s open meetings law when it had Dr. Deborah Wahlstrom removed from a 2021 public meeting.

An April 27 opinion written by Justice Wesley G. Russell Jr. upheld the Nov. 23 rulings of Suffolk Circuit Court Judge Matthew A. Glassman, who awarded Wahlstrom just over $19,500 in attorney’s fees and costs because she was denied access to a July 2021 School Board retreat in violation of the state’s Freedom of Information Act.

Glassman had awarded $17,520 in attorney’s fees and $1,983.56 in costs to Wahlstrom, who he ruled Sept. 20 “was denied free entry” into the July 22 retreat at the College and Career Academy at Pruden.

In the Supreme Court’s unanimous ruling, the court found that the Virginia Freedom of Information Act guarantees “ready access” and “free entry” to public meetings.

“Accordingly, VFOIA must ‘be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government’ and no ‘meeting [shall be] closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law,’” the ruling states. “We previously have recognized that this VFOIA-specific rule of construction ‘puts the interpretative thumb on the scale in favor of” open government and public access.” 

The court goes on to cite a previous ruling it made in a Loudoun County case that a video feed of a meeting alone does not meet this open meetings requirement.

“As noted above, VFOIA’s purpose is to increase transparency in government. It does so regarding meetings of public bodies by requiring that, in general, meetings of public bodies be open to the public, providing that, absent the invocation of a statutory “exemption . . . , every meeting shall be open to the public” and no “meeting [shall be] closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law,” the Supreme Court’s ruling states.

In general, the state’s high court found that VFOIA affords the public an opportunity to attend public, in-person meetings of public bodies by attending in the room in which the meeting is held. 

“A public body’s obligation in this regard is not absolute, but rather, is subject to a rule of reason. Thus, a public body is not required to abandon its traditional meeting place and rent an arena if a topic is likely to generate larger than normal public interest; rather it must provide the “normal” in-person access and take steps to allow members of the public who cannot be accommodated in the meeting room access by other means,” the ruling states. “Conversely, a public body may not select, design, or arrange a meeting room in a manner that artificially limits or removes the ability of the public to attend in person.

Applying this understanding of VFOIA’s requirements to the case, the court said in the ruling that “it is clear that the trial court did not err in concluding that the board violated VFOIA by denying Wahlstrom ‘free entry’ into the meeting room on July 22, 2021.” Even accepting, as did the trial court, that the room at CCAP was an appropriate venue for the meeting and that the setup of the room with social distancing was appropriate, the ruling goes on to say that the board “still violated VFOIA.”

On the appeal of the award of court costs and attorney’s fees awarded to Wahlstrom, the Supreme Court disagreed with the School Board’s argument that the trial court erred in awarding these to her because she did not prevail on all issues she raised.

“Because this issue represented the main object of her action and Wahlstrom prevailed on the issue, the trial court did not err in concluding that she ‘substantially prevail[ed] on the merits of the case’ for the purpose of an award of attorney fees and costs pursuant to Code § 2.2-3713(D),” the Supreme Court’s ruling states.

The ruling also denies the argument the Suffolk School Board raised in its appeal that the trial court erred in concluding that there were not special circumstances and that it should not have rendered the award of fees and costs.

The Supreme Court also issued an opinion on Wahlstrom’s assignments of cross-error where she contends that the trial court “erred in sustaining the demurrer to the individual potential liability of” [Dr. Judith] Brooks-Buck and [Superintendent Dr. John B.] Gordon and “erred in failing to find willful and knowing violations” of VFOIA by Brooks-Buck and Gordon. 

“For the reasons that follow, we conclude that the trial court erred in concluding that VFOIA does not permit civil penalties to be assessed against public officials in their individual capacities,” the Supreme Court ruling states, “but that such error does not require reversal because, given the standard of review, the record contains sufficient evidence to support the trial court’s conclusion that Brooks-Buck and Gordon’s violations of VFOIA were not willful and knowing.”

When asked for comment on Thursday’s decision, Wahlstrom said she is pleased with the high court’s decision upholding FOIA law, which provides for citizens to be in the same room where meetings are being held. 

“I’ve been carrying a huge weight on my shoulders for the past two years wondering the impact of how the courts might rule,” Wahlstrom said Friday. “Ruling with the school board would have meant any board could keep a citizen out of any meeting they desired as long as they had a virtual method for the citizen to observe the meeting. This would have been disastrous to the intent of open meetings in Virginia. So, while our board wishes it could select who and who cannot attend meetings, the law allows for all of us the right to attend. And it’s the board’s job to make sure they hold meetings in places where there is room for citizens. I’ll continue to monitor the actions of our school board because, as one judge mentioned, ours is a serial FOIA violator.”

When asked for comment, Gordon replied that Suffolk Public Schools will not have any comment on the FOIA supreme court case.

Brooks-Buck also replied by saying she would have no comment.

Additionally, School Board attorney Wendell Waller was asked for comment, but did not respond by deadline.

Former Suffolk School Board member Sherri Story reached out to the News-Herald with a comment on the Supreme Court ruling.

“Having won several FOIA cases against the Suffolk School Board myself as a sitting school board member, I am embarrassed and grieved that Attorney Wendel Waller and Chairwoman Dr. Brooks- Buck would have not had the common sense nor an elementary understanding of VFOIA at the onset to have thought this was a winnable case to pursue,” Story told the News-Herald. “The Suffolk taxpayers have probably lost nearly a half a million dollars on these repetitive FOIA losses over the past three years. It is long overdue that both the Suffolk School Board attorney and the former Chair, Dr. Brooks-Buck, step down from their current positions.  Citizens have every right to call for their immediate resignations. They have cost Suffolk enough. Suffolk citizens, parents, and students deserve better.”