A case study in FOIA confusion, closed meetings, and unintended consequences
I don’t want to be too hard on the Franklin City Public School Board. I’ve got nothing against them. I don’t know them to be any better or worse than anyone else. I don’t know about any current squabbles, intrigues or controversies. But I’m going to use video from that board’s Dec. 18 meeting (scroll to the end of this post) to show just how easy it is to be so far from the actual requirements of the Freedom of Information Act as to make them almost meaningless. That doesn’t inspire public confidence. Worse, it could expose them to a legal challenge.
So, the Dec. 18 meeting opens with a motion to go into closed session. The original motion says it’s for “new hires and supplemental employment,” and it cites the exemption for personnel (2.2-3711(1)). Before that can be acted on, another member says he wants to add evaluation of the superintendent to the agenda, possibly in closed session at the end of the meeting. There’s confusion about what motion they’re acting on and a reference to Robert’s Rules of Order, but then they vote to add the evaluation to the agenda. Or was it to add it to the closed session? It isn’t clear.
The chair then makes a motion to further amend the agenda to discuss moving future public comment periods from the end of their meetings to the beginning of their meetings, and to be able to sign up at the meeting, rather than in advance. There’s confusion here since she says the motion is to amend the agenda; then she says the motion is to vote on the change; then she mentions closed meeting; then another member says that since it’s a policy change, their own rules say they can only discuss it at this meeting but can’t vote on it until the next meeting; then she aks why they can’t do both since it’s only changing their policy, not state law1; then he says it’s because the members need time to research the proposal; then she says, “that’s why we’re taking a vote” (?); then she asks for a vote on her motion in favor of “reviewing and researching it tonight,” and after that passes unanimously, she says, “so moved” that they will “review that, discuss that and vote on that tonight.”
Yes, that was a run-on sentence that made little sense. Because what just happened made little sense. The terminology was inconsistent, the procedure was faulty and the impact of a vote to do one thing (review and research) was later described as doing an additional thing (vote).
The chair then returns to the motion to go into closed session. She doesn’t mention the specific code section (just 2.2-3711 generally), though, to be charitable, the original motion citing that did cite the specific code section may still have been on the table, and the purpose was the same: “new hires and supplemental employment.”
All that happened in under six minutes; then they adjourned to go into closed session. For two hours and 38 minutes.
When they return, the chair asks for a motion “to come out of closed session.” That sounds like the “certification” motion FOIA requires, where board members say, “only public business matters lawfully exempted from open meeting requirements under this chapter” were discussed, and “only such public business matters as were identified in the motion by which the closed meeting was convened were heard, discussed or considered in the meeting by the public body.”
So, one of the members says, “I move that the school board, having been in closed session pursuant to a proper motion, come out of closed session.”
That wouldn’t be a proper certification motion. But that’s because, apparently, it wasn’t the certification vote. The clerk conducts a roll call of those in attendance, then a member reads a prepared motion that cites the FOIA requirements verbatim.
I’m not sure why there’s a motion to come out of session and a motion to certify the closed session. FOIA says the certification is to come “immediately” after the conclusion of a closed meeting. And the roll call of people in attendance at that moment may not relate to who was in the closed session.
Anyway, moving on, the board recites the Pledge of Allegiance. The chair then calls for “motions from closed session.”
One member moves to accept the “personnel agenda as presented.” There’s nothing resembling a personnel agenda in the board meeting materials online, and there’s no discussion, but at least a personnel agenda falls within the closed meeting subject matter of “new hires and supplemental employment.”
The same member then makes a motion “to move citizens’ time to the beginning of the meeting, and change the sign-up time.” Um, this wasn’t included in the motion for closed session. It’s not personnel, and no other exemption was mentioned. Not that there is an exemption that would apply to discussing at what point in a public meeting public comment will be taken.
Nonetheless, the motion is seconded. But hold on: There’s a question from a member who wants to clarify that this is a motion to review changing citizens’ speaking time. No, the chair says. It’s a motion to change the citizen speaking time. Only, it shouldn’t be because the original motion was to review and research the policy. It wasn’t until after the motion passed that the chair added that they would “vote” on it. Still, the board unanimously approves the motion to change the policy, which is greeted by applause from the audience.
At this point, there’s a resurfacing of the motion to discuss the superintendent’s performance at the next meeting’s closed session.
And only THEN is the agenda approved. The agenda that was supposedly amended earlier to include the public comment period.
Are you still with me?
No doubt that was tedious for you to read. It is tedious to watch on YouTube. Imagine how tedious it would have been for someone attending the meeting.
The outcome was laudable: it seemed to make the citizen comment period more accessible. Considering the board went into closed session for nearly 2.75 hours, that’s a lot of time for a citizen to invest just waiting around for the opportunity to speak their three minutes of truth towards the end of the meeting.2
But how they arrived at this decision was excruciatingly unsound. As I said, I don’t want to beat up on this board, because their problems are the same ones I see all over the state:
- Mixing up parliamentary procedures with FOIA
- Debating which motion is on the table and what the motion actually says (and doesn’t say)
- Inadequate motions to go into closed session
- Improper discussions in closed sessions
- Questionable certification of closed sessions
- Last-minute additions to the agenda
You can’t really blame any of these elected officials. They likely weren’t familiar with FOIA when they took office, and FOIA is super dense and arcane. But, FOIA does require elected officials to get FOIA training. And these officials should be getting advised by someone (an attorney or even just someone well-versed in FOIA and meeting procedures) who can keep them on track.
This matters. It may have been a citizen-friendly outcome this time, but imagine if the same confusing, opaque and improper procedure surrounded a controversial issue. It’s one reason why VCOG is promoting its bill again in the 2026 General Assembly session to limit final action on items added to the agenda during the meeting. As that one FCPS member briefly protested: We can talk about it now, but we shouldn’t vote on it until the next meeting. The public shouldn’t be surprised by last-minute additions that result in final action.
It also matters because if they do take action — any action, not just controversial ones — in such a haphazard procedural way, they expose themselves to a possible FOIA suit.
FOIA is complicated. It’s a pain in the butt. But it is the law. And it is a law that is designed to keep the public apprised of what its government is doing in their name and in ways that could indirectly or even directly impact them. So, my hope is that not only FCPS, but public body members all over the state will invest in meaningful training about how to run a meeting and how to follow both the letter and the spirit of FOIA. It benefits us all.