Surprises are great at birthday parties, but not at public meetings. Public meeting surprises are what some citizens receive when a new item is suddenly added to the agenda without warning. Discussion may or may not ensue, a vote is taken and boom, that’s it.
It’s even worse for the people who weren’t at the meeting, but who nonetheless may have been interested in the issue. They read it in the paper the next day and kick themselves for having missed the meeting. But they missed it, they note, because the announced agenda for the meeting did not include the item.
The addition of new items to an agenda without prior notice is a problem for citizens, and it’s one that many states limit (or prohibit) through statute. Some states say that a new item can be added to agenda only with 24 hours prior notice. Some states say that it takes a 2/3 vote of the board to approve an unannounced addition. And some states say a new item can only be added if there is an emergency.
Virginia is not one of any of those states. Virginia’s FOIA does not even require that there be an agenda at all. It only says that if there is an agenda, it has to be made available to the public at the same time as it’s given to the public body’s members.
When citizens see an agenda, they have a reasonable expectation that the board will be taking up the items on the agenda, and not taking up anything that’s not on the agenda. After all, the logic would go, the board members are preparing for the same agenda, and they wouldn’t be preparing for something that’s not on it, right?
Wrong.
Take the Hampton School Board in June 2010. The agenda stated that the meeting would adjourn after the board came out of the closed session. That session ran late and so many citizens and the media went home precisely because the agenda said there were no more items of business. Guess what happened? The board came out of closed session, and then agreed to discuss a new contract for the school attorney. They not only discussed it, they voted to approve it, even though there had been no prior notice of the contract, which included a 15% pay rise at a time when other government employee salaries were stagnant. The reporter and the public felt duped.
Or, sorry to pick on Hampton, but the City Council ran into a similar problem in November 2011. Then, without any prior notice on the agenda, the council approved looking into a proposal to give city employees gift cards to a particular outdoor shopping area. Again, the public was angry. Why had this item not been included with other year-end budget items? And was it appropriate for the council to be directing employees to shop at a particular set of shops within the city?
Or, take what happened just last week in Prince George County. It was late in the evening, and the public comment period had just ended. Earlier in the day, in closed session, the board had discussed buying a parcel of land that would adjoining a $1.5 million parcel approved days earlier, but it wasn’t on the agenda for the public meeting. Suddenly, according to the Progress Index, the board verbally added the purchase to the agenda and without comment or discussion approved purchase of the property for $239,000.
Surprise!
It works in the opposite direction, too.
I heard from a woman in Southwest Virginia last month and she was trying to mobilize fellow citizens to speak out on a particular item (I can’t remember what it was -- sorry). She wanted them to be able to come to the meeting, which was during work hours on a Friday, to either participate or at least observe the discussion. By Thursday, there was still no agenda. She called me, understandably worried that folks would take a day off from work to sit in on a meeting where the issue they cared about was never discussed.
The woman said she had some evidence that the town was intentionally delaying announcing the agenda because they didn’t want a lot of people there to oppose the measure. I don’t know whether that’s true, but it’s easy to see how citizens can feel like they are in a game of cat and mouse when it comes to knowing when and where their elected officials will be discussing items of vital importance to them.
I don’t want to tie the hands of a public body to the point that they can never stray from the agenda the day it’s announced. There are all kinds of reasons why items have to be added. But wherever possible, the time limit for when those items can be added should be proscribed. And where possible, go ahead and add the item for discussion, but don’t take action on it until the public knows it will be discussed.
So let’s keep surprises at public meetings to a minimum. Let’s give people plenty of notice so that they may participate, observe or, at the very least, have confidence that the issue was given the full and fair consideration it deserved. The public deserves that, too. And THAT is no surprise.
Beyond that, some states have proposed laws where closed sessions have to be recorded — and that those recordings are to be released once doing so would no longer frustrate the purpose of hiding the conversation from the public. In the hypothetical land deal you mention, then, the recording could be released if/when the government purchased (or acquired through condemnation) the land. But I don't know of anywhere that law has actually passed.
As for releasing recordings of closed sessions after it is no longer a concern, it's my understanding that the purpose of closed sessions is just not to discuss sensitive issues, but so that all parties can speak freely when doing so. That is, free of politics and armchair quarterbacking. Although it may not be harmful to the specific issue, it may have repercussions on the parties and would seriously jeopardize the board's ability to have an open and frank discussion. To me, I like to know that the people in charge still have a venue to discuss issues openly and frankly without the divisive politics that is so prevalent today.
Luckily lots of public bodies not only meet (and often go beyond) the statutory requirements for the motions made in the minutes, there is no requirement that the closed session be noted on the agenda. I think it would be a good idea if they did -- in Franklin (city, not county) a year or so ago, a regularly scheduled meeting agenda was made public several days in advance (yay) and it listed a closed meeting with a good description (yay yay). The problem was that the description didn't really fall within an exemption (oops). The local paper and I wrote to them to point out the problem and they corrected it -- removing it from the closed meeting agenda to the open meeting agenda (yay yay YAY!) where it stayed.
* most states do not require minutes of any sort to be kept of a closed meeting. * Arizona, Illinois, Kansas, Massachusetts, Missouri, North Carolina, South Carolina and Wyoming require minutes of closed session to be kept. * D.C. requires recording the minutes of closed sessions. * Some states, though I didn't go as far into detail here, will require the release of the minutes only if the government loses a lawsuit over the propriety of the closed session.