Closed Session Reality Check

There has been quite a bit of buzz in the past week about the May 8 meeting of the Loudoun County Courts Grounds and Facilities Committee (CGFC), in which County Attorney Jack Roberts gave legal advice to the committee in closed session.

The closed session was the subject of a story in the Loudoun-Times Mirror, which focused on the fact that the building’s outside door was locked while the committee was in closed session.

I was there. Here’s what happened, from my point of view.

The meeting, scheduled for 5 p.m. in a meeting room in the courts complex, began a few minutes late. Almost immediately, the CGFC voted to go into closed session to receive advice from Roberts about the holiday displays the committee is considering for the courthouse grounds.

Other than the CGFC members and staff, there were only a handful of people in the room, including the husband of a staff member, a representative of the American Atheists, and me. I was covering the meeting for Leesburg Patch.

I don’t know the Times-Mirror reporter by sight. If he was present when the meeting began, I was unaware of it.

Along with the other members of the public, I was politely asked to leave the room so the closed session could begin. We could have waited indoors, in a tiny hallway outside the meeting room, but instead decided to go downstairs and wait outside until the closed session ended.

After a few minutes, committee member Robert Lynd arrived for the meeting. He had been caught in traffic after the fatal accident on Evergreen Mills Road that afternoon.

It was then that we discovered that the outside door to the building had locked behind us. I had been content to wait outside until the closed session was over, but Lynd needed to get into the building so he could hear the county attorney’s advice.

We tried calling the cellphones of people who were inside, but no one answered.

About a half hour after the closed session started, a sheriff’s deputy who attends the meetings opened the outside door to let us back inside. Upon realizing that the door was locked, the deputy unlocked it. We returned in time to hear the CGFC certify that the closed session had been held legally.

I remained through the rest of the CGFC’s public discussion about the holiday displays, and wrote my .

To my knowledge, I was the only reporter who was present for the entire discussion, as well as the CGFC’s previous meetings on and , which I also covered for Patch.

I did not notice any change in the nature of the committee’s public discussion after the members had received advice from Roberts. They proposed and voted on the same displays they had been discussing publicly in their previous meetings, and simply nailed down some of the details.

I have concluded that it was an honest mistake that the building door locked behind us when we left the closed session, which was being held in a secure building after regular business hours.

It was a mistake because someone arriving late might not have known that the CGFC was in closed session and, upon encountering the locked outside door, might have missed the public discussion once the public meeting resumed.

Lynd was the person who was harmed the most by the mistake, because he missed out on the legal advice the other committee members received.

I am an advocate of open government. I don’t like closed sessions. When I attended the May 8 meeting, I hoped that Roberts would advise the committee in public, so I could compare his advice to the subsequent actions of the CGFC and, ultimately, the Board of Supervisors.

But I am also a realist. I don’t believe very many attorneys would want to provide advice to their clients in public on matters involving litigation. So I wasn’t surprised by the CGFC’s decision to meet in closed session.

This brings me to another point that has been raised by some who have been commenting on this issue – the section of the Virginia Freedom of Information Act (FOIA) that authorizes closed sessions.

FOIA allows closed sessions for “consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation.” The passage goes on to define what is meant by “probable litigation.”

I am not a lawyer, and reasonable people may disagree as to whether litigation is probable in this case. But, as I reported in , Rick Wingrove of the American Atheists flatly told the CGFC, “The county simply cannot put up a nativity scene. They will be sued and they will lose.”

Since then, the CGFC has shown no signs of backing away from its recommendation that the county government display a nativity scene on the courthouse grounds.

I will leave it to the lawyers and soothsayers to decide if litigation is probable in this case.

Again, I don’t like closed sessions, and I would prefer that the public’s business be done in public.

But I think that the controversy surrounding this particular meeting is vastly overblown.