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Closed Session Reality Check

Committee received advice from county attorney about holiday displays on the courthouse grounds.

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.

John Mileo May 21, 2012 at 12:13 PM
Kristen, There is no need for you to respond to the question that I posed to you in this column on May 18th for I see that you are indeed one and the same as the NOVA Atheist who is indentified as a member of same by your comments as posted at that site on May 18, 2012. In that posting, you state that you and Jim Barnes of the Leesburg Patch (author of this article) were outside of the meeting room during the closed session. By the way, I would think that you are aware of the fact that the NOVA Atheists organization is an affiliate of the American Atheists (AA) so I guess you perhaps forgot about that when you alerted Jim Barnes that you weren't "a representative of American Atheists" when you attended the May 8th meeting. Maybe Kristen, this was simply a matter of semantics, and that what you actually meant to communicate to Jim was that although you are an official member of AA, you weren't attending the meeting in that capacity, but rather, as you so eloquently put it as "a friendly neighborhood atheist." In any event, I am glad to see that you obviously have fully recovered from the "shock and horror" that you experienced with regard to the remark that you thought you heard me say at the April 24th meeting concerning my desire for a "flesh covered Santa" this coming December.
Kristen H May 21, 2012 at 05:08 PM
I was not attending as a representative of NOVA Atheists or American Atheists, but rather as a concerned citizen. In addition, I am not a dues-paying member of American Atheists and I didn't want to be mistaken as an official member acting in such a capacity. I will respond to your comment from May 18th, and I am sorry that I missed it -- I was not receiving email alerts from that thread.
John Mileo May 21, 2012 at 06:52 PM
Sorry Kristen, but your latest comment does not appear to be in sync, so to speak, with what I am reading on the NOVA Atheists' [NA] website. You have posted at least 3 statements there which clearly states that such postings are only open to its "members." The site does not appear to indicate which of its members are "dues paying" or not, but rather lumps all of them together in a single list of which you are included. Whether you attended the May 8th meeting as a "representative" of NA or as the "neighborhood friendly atheist" you described yourself earlier or as or the "concerned citizen" that you are now describe yourself is really of little importance. What is important is that you clearly were there on that date as well as on April 24th as a result of your unofficial or official affiliation with NA, since your message board postings are all in connection with same. By the way Kristen, according to Rick Wingrove’s own posting there were 10 NA members in attendance at the April 24th meeting---did that number not include yourself, since you are now stating that you were there on your own volition? In closing, you may think that my commentary here is somewhat trivial in nature, but to me your apparent inconsistent statements as well as the unsubstantiated claims, false accusations and outright distortions of fact that have been made by your organization’s president and others, cause me to question the overall credibility of the organization and some of its members.
Kristen H May 21, 2012 at 07:07 PM
I am affiliated with a social organization that has members who are concerned about the displays. I knew some were unable to attend the meeting and as a proponent of open government, I wanted to make sure to update them. Because I am not representing any organization, I remain unqualified to discuss NOVA Atheist's affiliations. This is not because they're hidden in any way -- they are clearly listed on the website that you've gone through. However, I don't believe that every event I am informed about through them and attend with members of the social group makes me a representative of that group. I also don't see a difference between attending as a "friendly neighborhood atheist" or "concerned citizen", as they are both phrases I made up to try to explain that I was not attending a public meeting on behalf of any group. As it was a public meeting and I am a Loudoun County citizen, I attended (and will continue attending, quietly and respectfully) as a citizen who is concerned, friendly, and an atheist. However, while we're on the subject of whether people's actions are representing their groups, right now I feel very uncomfortable with a member of a Loudoun County Government committee scouring the internet for information about my personal beliefs. I understand that you have issues with the head of NOVA Atheist. However, I am not acting on behalf of him or the organization, and I would appreciate being treated as you would treat a citizen of Loudoun County.
John Mileo May 21, 2012 at 08:44 PM
Kirsten, You need not criticize me or accuse me any wrongdoing for viewing the NOVA Atheists’ [NA]website, where I came upon your name which caused me to pose the questions to you which I felt were somewhat at odds with what I read in this string of comments. And this I did on my own, and initially in advance of my even knowing of your name! I did have an issue with your hesitancy to even believe or totally accept Jim Barnes when he explained to you that what you thought you heard me utter which was something totally different. Sorry that you now feel "uncomfortable" about my own research at the NA site, which was not done as a means as you put it for "scouring the internet for information about my personal beliefs." Also, I do not begrudge you for being an atheist which you have every right to practice , and I am pleased to see you describe yourself as a concerned citizen. Overall, what I am concerned about is what I have stated here and elsewhere, and that is that there are many misstatements, and unsubstantiated statements, etc. coming from certain members of the NA; about those who serve on CFGC, or even your own accusation of my "scouring the internet" for information on your beliefs, which is another overblown statement, since this was not my motive. Finally, I share your view as to how you wish to be treated, as that is something I always try to do and expect from others in return as well, provided that mutual respect and dignity always prevails.

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