A Warren County supervisor has proposed reforms to practices for meeting behind closed doors. Supervisor Richard A. Jamieson presented a memorandum to the Board of Supervisors on Wednesday that proposes changes to the county’s practices for closed sessions, which he says increases transparency for the public. Jamieson said the proposed policies, if adopted, would better inform supervisors on why they need to meet in closed sessions in order to ensure the board complies with the Virginia Freedom of Information Act.
The story doesn’t say what the policy proposal is, so here’s what I found on the Warren County website as part of an 11-page memo included in the Nov. 14 work session materials:
https://warrencountyva.portal.civicclerk.com/event/2816/files/attachment/18071
A
Requirement: Any request for closed session under Va. Code § 2.2-3711(A)(7) or (A)(8) must meet heightened specificity requirements:
1. Written justification: The County Attorney shall provide written justification to all Board members at least 48 hours prior to the meeting, detailing:
o The specific FOIA exemption claimed
o The factual basis establishing that statutory criteria are met
o For probable litigation claims: identification of the known party, the specific threat or reasonable basis for expecting suit, and documentation supporting the assessment
o For specific legal matters claims: explanation demonstrating the matter involves actual legal questions requiring counsel’s advice[9] rather than general policy debate or matters with potential legal consequences, and why confidential consultation is necessary
2. Board member objections: Any Board member may object to a proposed closed session in writing. Such objections shall be circulated to all members and addressed by the County Attorney in writing prior to the meeting.
3. Public motion specificity: The motion to enter closed session shall be sufficiently specific to enable the public and Board members to understand the basis for closure, consistent with Va. Code § 2.2-3711(A)(1).
B
Requirement: Written legal analysis shall be the default method for providing legal guidance to the Board, with closed session consultation reserved only for matters genuinely meeting FOIA’s narrow criteria. This policy applies to matters of governance significance, including proposed ordinances, regulations, policy decisions, and legal questions affecting Board decision-making—not routine transactional work such as contract review or ministerial legal tasks.
1. Default rule: The County Attorney shall provide written analysis to all Board members for any matter requiring legal guidance, except when the matter genuinely meets FOIA’s narrow criteria for closed session as established in Section V.A. Such shall be delivered sufficiently in advance of Board action to allow members to review, research, and formulate questions—ordinarily at least one week prior to any scheduled vote.
2. Scope of written analysis: Written analysis shall include:
o Relevant statutory provisions and their interpretation
o Applicable case law and regulatory guidance
o Risk assessment with factual basis
o Alternative legal approaches or interpretations, if any exist
o Counsel’s recommendation and reasoning
3. Public accessibility: Written legal analysis shall be considered a public document and made publicly available, as statutory interpretation, policy guidance, and risk assessment are matters of public interest.
4. Burden of proof: The burden rests on the County Attorney to persuade the Board that FOIA’s narrow criteria for closed session are met—not on Board members to prove that transparency is appropriate.
C
Requirement: For any proposed ordinance, regulation, or significant policy decision, the County Attorney shall provide written statutory analysis to the Board and make such analysis publicly available, except where:
1. The analysis addresses actual or probable litigation as strictly defined by FOIA, or
2. The analysis reveals litigation strategy in a matter where suit has been specifically threatened by a known party.
Public hearing requirement: Where statutory analysis raises significant legal concerns about a proposed ordinance, such concerns must be presented in open session at the public hearing, enabling the public to understand and respond to legal considerations that may influence the Board’s decision.
D
Requirement: The Board Chair shall ensure compliance with this policy and may:
1. Rule out of order any closed session motion that fails to meet the specificity requirements
2. Require the County Attorney to provide additional written justification if initial documentation is insufficient
3. Permit Board members to question the basis for closed session requests before any vote to enter closed session
Review and revision: This policy shall be reviewed annually to ensure continued compliance with FOIA law and best practices.
