Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, March 12, 1995 TAG: 9503100026
SECTION: HORIZON PAGE: F-1 EDITION: METRO
SOURCE: DAN CASEY/STAFF WRITER
DATELINE: LENGTH: Long
The Vinton Town Council and the Roanoke County Board of Supervisors spend months pondering a Vinton annexation proposal that could jack up property taxes for thousands of county landowners.
The Montgomery County Board of Supervisors tries to force a merger of county and school system finances, prompting an angry showdown with the county School Board.
After telling citizens to leave, Floyd Town Council allows a hamburger joint to build a sign four times bigger than regulations allow.
On the face of it, these major and minor public policy questions have little in common. But in each case, John Q. Public was barred from the decision-making process.
Each was a back room deal, decided behind closed doors, without citizens present. Figuratively, the public was left out in the cold.
Officials in Roanoke, Vinton, and Floyd, Montgomery and Roanoke counties are hardly alone in their penchant for discussing public issues in private.
A survey by the Roanoke Times & World-News has found that the executive session is an institution among local governments in the Roanoke and New River valleys.
More than 650 times last year, city councils, town councils and boards of supervisors in the Roanoke region legally shut out the public by convening in private meetings. More often than not, closed door talks are a routine part of every meeting.
Roanoke City Council held 51 executive sessions in 1994, according to minutes of its meetings.
The Roanoke County Board of Supervisors discussed 59 different items during closed session last year.
But the kings of closed-doors are the Montgomery County Board of Supervisors and the Rocky Mount Town Council.
In Montgomery - where the chairman says he doesn't like closed meetings and wishes there were fewer of them - the board held secret talks on 105 occasions last year.
Agendas of the Rocky Mount Town Council list 112 executive session topics spread over 28 public meetings in 1994.
In contrast, Christiansburg Town Council managed to run things with comparatively few closed-door talks. It discussed only nine items in executive session in 1994, according to minutes of its meetings.
Some of the private discussions involved weighty topics: consolidation of governments, lawsuits against other jurisdictions and disciplinary actions against municipal employees who weren't doing their jobs properly.
In other cases, the subjects seem trivial: routine appointments to boards and commissions, fast food advertising and "feel good" proclamations of citizenry. In some cases, the secret talks lasted longer than public discussions.
The Virginia Freedom of Information Act makes it all possible. Although the 27-year-old statute requires open meetings on public policy questions, the General Assembly over the years has carved out 22 exemptions under which officials may close meetings if they wish.
Thus, "just about anything you can think of could be decided in secrecy," says Julie Lapham, executive director of Virginia Common Cause, a self-styled citizens watchdog group based in Richmond.
"There seems to be this illness in the water we drink or the bread we eat that we need to go into closed sessions for the slightest, slightest reason," she said.
What it often amounts to, says Wat Hopkins, a Virginia Tech communications professor who has written a book about the state law, "is we've got public officials who think executive sessions are for talking about things that are important, that, 'We'll come out in public and discuss unimportant things.'"
In Florida, by contrast, local elected bodies may meet privately only to discuss ongoing litigation or for strategy sessions before negotiations with employee unions, said Pat Gleason, general counsel for Florida's attorney general.
Elected officials can be convicted of a crime and removed from office for meeting privately to discuss anything else, she said.
Letter of the law
Local officials in the Roanoke region bristle at even the suggestion they are doing anything wrong during frequent closed-door meetings.
The officials say the Freedom of Information Act allows the executive sessions, and they are merely following the law. The issues are sensitive, and all votes are taken in public, the officials say.
Often, the public even benefits from it, they say. In the case of purchasing real estate, negotiating offers in private may help a government buy land more cheaply.
"That's the council acting responsibly with the citizens' tax dollars," Roanoke Councilwoman Linda Wyatt said.
"To my knowledge, in my 10 years on council, we've never violated the law," Roanoke Mayor David Bowers said.
"We have business [to discuss] legitimately under the act, and I tell you, it's closely monitored," said Mark Henne, town manager for Rocky Mount, population 4,000. "There are certain issues under the statute that it's proper for council to go into closed sessions for. ... For the most part, we go into executive session when the law permits it."
"What we're simply doing is following the Freedom of Information Act," said Roanoke Vice Mayor John Edwards, who is a lawyer. "It's not as mysterious as you think."
Roanoke County resident Mike Schneider doesn't buy that argument. Schneider recently found himself shut out of talks between Vinton and Roanoke County officials over the town's intention to annex seven square miles - a move that would boost his property taxes.
The annexation issue, under wraps for months, is unresolved. All the meetings regarding it have been closed as a legal matter.
"Why do they have to keep it secret? What are they afraid of? There's a reason for secrecy. The fact that the law allows them to get away with it doesn't make it right," Schneider said.
"They say they don't want a lot of public debate before they decide a major issue. Well,
why not?" he added. "The public's not stupid. The public can separate the wheat from the chaff just as well as the county Board of Supervisors."
Evelyn Bethel, who has regularly attended Roanoke City Council meetings since 1992, believes more public debate would occur if council held fewer closed sessions.
"I've come to the conclusion that they just sit back there in the closed meeting and get everybody to go along," she said. "Then [council] just comes out and does it ... .at the open meetings and public hearings, they don't say anything."
Common Cause's Lapham said suspicions like that hurt the very government officials are trying to protect.
"The secrecy breeds cynicism," she said. "Ultimately, it undermines government institutions. It adds to the cynical nature of the electorate, which we see is getting more and more cynical."
`Sacred' talks
Nothing in state law prevents any official from openly discussing what transpires in executive session. Yet officials often cite the Freedom of Information Act in explaining that they're prohibited from discussing what happens.
Roanoke Councilman Delvis "Mac" McCadden insisted to a reporter last summer that it would be illegal for him to reveal the name of an industry considering locating in Roanoke. The subject had been discussed in a City Council executive session the previous day.
Roanoke Mayor Bowers, a lawyer, cited the same reason in December when he was asked to confirm an impending settlement in the city's legal dispute with Roanoke County over water service. Council had discussed resolution of the lawsuit in private a few days earlier.
Both said later that they just assumed the law requires secrecy.
"That's what we've always been told. I don't remember whether it was the city attorney or Mayor [Noel] Taylor," Bowers said.
In his view, any official who votes to go into closed session and then afterward divulges what happened is guilty of a dereliction or misfeasance in office, Bowers said.
Other officials realize the law allows them to spill the beans. That's what bothers Montgomery County Board of Supervisors Chairman Larry Linkous. He finds the lack of a secrecy clause nettlesome.
During a long-range planning session last fall, Linkous admonished other supervisors to keep their lips buttoned on the board's private discussions. He and Supervisor Ira Long called those talks "sacred."
"It is sort of sacred," Linkous said recently. "That's the part of the law I don't like. What's the purpose of executive sessions if the individuals involved don't honor it?"
Common Cause's Lapham said Linkous' views are part of the problem. Officials too frequently forget that the public's business should be public, she said.
"It's an interesting word, 'sacred.' It sort of suggests that [closed sessions] are some kind of religious experience," she said.
Sometimes, talking out of turn can spark angry attacks by one official upon another. That happened in 1993, when then-Roanoke Vice Mayor Beverly Fitzpatrick dared to publicly question the city's ill-fated attempt to take over Roanoke Gas Co.
Bowers fired back a day later, saying the statement undercut council's bargaining position on the takeover. Repeatedly, he complained that Fitzpatrick hadn't voiced his objections "in the back room." (Fitzpatrick said he had).
The comments "ought not be tolerated," Bowers said at the time. "What's on the line is a question of dereliction of duty to the citizens of Roanoke and the trust of members of City Council."
Out in the cold
Sometimes, executive sessions leave citizens literally out in the cold on issues they care about. That was the case last March in the town of Floyd. The issue? A new Hardee's hamburger stand.
A local ordinance barred signs taller than 15 feet and larger than 24 square feet. The Hardee's owners wanted a 112-square-foot sign that was 25 feet high. Some citizens believed that was too big.
Pros and cons of the proposal were debated before 37 citizens at a Town Council meeting March 3, 1994. It was held in a meeting room in the Bank of Floyd because council expected a larger crowd than their chambers could accommodate.
After the public debate, council adjourned into executive session to discuss a "personnel issue." Because council had reserved only one room at the bank, citizens had to leave. The owner of the Hardee's was the only one who stuck around.
"They stayed in the room and sent the rest of us out. ... It was bitter cold, it was nasty outside. They never told any of us that they would reconvene the public hearing," recalls Floyd veterinarian Meredith McGrath, a Hardee's opponent who was there.
"It was clear someone wasn't going to wait out in the cold," said Seth Williamson, a correspondent who covered the meeting for the Roanoke Times & World-News.
After the closed session, council apparently reconvened and negotiated with the restaurant's owner.
Then council voted to allow a 20-foot-high, 98-square foot sign. The public didn't find out about the vote until the next day.
Was that the plan?
"That's exactly how we felt," McGrath says.
Floyd Mayor Skip Bishop says the whole issue is fuzzy in his mind.
"I don't recall why that sequence of events," he said.
The meeting was taped. McGrath, who has a copy, said there's a 51/2-minute gap signifying the executive session. Suddenly, the tape cuts to council inviting Hardee's owners back into the room, where they negotiate the sign size and vote on it. At least one council member apologized for some of the comments by citizens.
Williamson said he asked town officers if he could listen to the official tape.
"They told me they couldn't find it," he said.
Floyd Town Council no longer tapes its meetings, according to town Secretary Lindal Radford.
The taxpayers' tab
Sometimes, decisions made in executive sessions can be costly.
One example is the Bedford County Board of Supervisors' settlement in December of a protracted legal battle against Sheriff Carl Wells. By the time it was over, taxpayers found themselves picking up a $17,000 tab.
The county was at odds with Wells because he personally pocketed $15,000 in accrued interest by using his private checking account for the Sheriff's Office payroll. He ceased the practice after the state legislature closed a legal loophole that allowed it.
Hiring a lawyer and some accountants, the board secretly decided to sue Wells to recover the interest payments. Supervisors then engaged in drawn-out negotiations over a period of months - all in closed sessions. In the end, the county's legal and accounting bills totalled more than $21,000 - $6,000 more than what the county was hoping to collect.
The eventual settlement left the gap even wider. Wells ended up paying the county only $2,800 of the disputed amount. The remainder was picked up by taxpayers.
"When you spend $25,000, $26,000 in taxpayers money to get back $2,000, that's not a wise decision," said John Sublett, a former two-term supervisor who plans to run for the board again. "They should have brought the sheriff in and talked to him about the matter in an open meeting."
`We get crucified'
One aspect of executive sessions that officials aren't shy about discussing is the freedom it gives them to think out loud and not have to worry about looking silly.
The frequent presence of print, television or radio reporters has something to do with that, said Linkous, the Montgomery supervisor.
"People do seem to feel more at ease talking in executive session than they are in open session, he said. "A lot of the time they're afraid statements will be misinterpreted or taken out of context - and that it could hurt them politically."
"I don't think there's anything done in executive session that would affect the citizen in any way. I think your votes are very public, public record," said Montgomery Supervisor Linkous.
Roanoke County Attorney Paul Mahoney recently told a reporter that the press may skewer politicians for making off-the-cuff suggestions or asking dumb questions.
"Every time we think out loud in public, we get crucified," Mahoney said.
However, a problem arises when all discussion takes place in closed sessions, with only the votes in public. That leaves citizens in the dark about why elected officials vote as they do, Virginia Tech's Hopkins said.
"Discussing something in public might be embarrassing or inconvenient for public officials, but that's not enough reason to keep it from the public," Hopkins said. He believes officials have a duty to carry over private talks into public sessions, even though the law doesn't require it.
"We elect these people to act for us. We have a right to know how they're doing that, and their rationale for it," he said.
Robert Crouch said he wishes Bedford County officials had been more open about plans to consolidate with Bedford City. The decision was announced at a Feb. 21 public meeting after months of closed-door negotiations.
Details of the recommendation were in a 27-page report. But it wasn't distributed to the public. Instead, citizens got a three-page summary.
Crouch said he wanted to ask some questions about the plan. But he was stymied because he hadn't read the entire report. He asked for a copy before the meeting, but officials told him they didn't have any extras, he said.
"There was quite a few of us that certainly would want to sit in [on the private meetings] to hear the pros and cons of this thing, just like we do in regular meeting," said Crouch, who intends to run for the Board of Supervisors. "But it was all done in executive session."
Sublett, another potential candidate, said the Bedford County Board of Supervisors used to be much more open. He recalls one occasion when supervisors argued for an hour and 15 minutes over how much to pay for a chicken killed by an unlicensed dog. The bird's owner ended up getting 15 cents from the county.
"But now, [the current Bedford supervisors] don't have discussion on these matters and then bring up a vote. They just vote," he said.
Common Cause's Lapham said that's a bad sign in a democracy.
"There's a piece here that says, 'we do it all behind closed doors, then we take a vote in public session. And if the public doesn't like that, we'll just sit there and stare at them,'" she said.
Selling the public
In some instances, elected bodies may use a closed session to tell citizens only what officials want them to know about an important public initiative.
A case in point is the Falling Branch Industrial Park in Montgomery County, a $9 million project that will be partially financed through tax revenues
In November 1993, the Montgomery County Board of Supervisors sang the praises of the 164-acre industrial park during a public meeting. According to experts, the benefits would be considerable: 2,250 direct and indirect jobs, at least five new companies, and a steady flow of tax revenue.
Then the board promptly adjourned into executive session to discuss the costs and how to pay for it. The board didn't release any details until nine months later.
Open minds,
closed meetings
Sometimes executive sessions involve policy matters on which the public is already well-informed. Such was the case on Roanoke City Council's Sept. 9, 1992, vote undoing the controversial 2-for-1 retirement plan.
The special meeting came after a month-long public furor over the pension change, under which council members had voted themselves and top-ranking city administrators the highest municipal retirement benefits in Virginia.
The meeting opened with about a dozen citizens in city council chambers. After the Pledge of Allegiance and a prayer for "open minds," Mayor David Bowers quickly adjourned the meeting into closed session.
He justified it as a personnel issue concerning "salaries, compensation and benefits of council appointed officers." Bowers also called it a legal matter.
Two hours later, without any discussion, council emerged and unanimously voted to repeal the pension plan.
Gary Waldo, director of a local teachers union who was in council chambers that day, found the vote unsatisfying. The discussion that preceded it should have been out in the open, he said.
"The generic issue of 2-for-1... pensions for council and high administrators is a policy question," Waldo said. "I want to know where my public officials stand, on major public policy issues, after full and open debate. That would give citizens of our city a clear and distinct sense of what [council members are] for or against, and why. And then people would have some measure, some standard, of accountability."
Steve Goodwin, a past council candidate who was also in the audience, believes council misused the law.
"I feel like when they're discussing compensation for themselves, that's totally different from discussing compensation or a personnel action for others. I think it's definitely the public's concern. We as taxpayers pay for it," he said.
"I've read that law and know how they can use it and abuse it," Goodwin added. "I think they have to be more particular about what they go into closed session for."
But Bowers, who twice voted against the 2-for 1 plan, said nobody in the audience that day objected to council discussing the matter in private, although they had the opportunity to do so.
Asked whether it would have made a difference, Bowers declined to answer, calling the question "speculative. "The bottom line is that within the first 100 days of my term of office, that issue was compromised and put to rest," he said.
Citizen of the year
One question before Roanoke City Council in 1994 involved no land transaction, litigation, economic development prospect or personnel issue. Still, council found a legal way to keep the public out.
The issue? Roanoke's "Citizen of the Year" award, which was presented on Feb. 12. That's the reason council met behind closed doors in a Dec. 12, 1994, executive session called by Mayor Bowers.
Citizens throughout the community nominate worthy volunteers for the honor, which has been bestowed for the past 14 years. Council hashes out who should get it in private. The law allows that under an exemption for "discussion of honorary degree or a special award."
Councilwoman Elizabeth Bowles said privacy is needed so council may narrow down the nominees without treading on nonwinners' feelings.
"There are several citizens who are nominated and they like to keep it a secret," Councilwoman Wyatt said. "It's not like there are big hairy secrets that people are trying to keep."
But Common Cause's Lapham finds the notion laughable. "I can't imagine there's anything around that process that would necessitate it be done behind closed doors. Why on earth is a city council in the business of selecting a Citizen of the Year anyway?" Lapham said. "It's not in their purview; it's not in their charter. It's not up to elected officials to decide who's a good citizen or not."
by CNB