Breaking News: Petition Seeks Release of Applications, Notes Related to City Council's Ward 3 Vacancy
Petition was filed in Fredericksburg Circuit Court Thursday morning.
By Adele Uphaus
MANAGING EDITOR AND CORRESPONDENT
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A Fredericksburg resident has filed a petition asking the Circuit Court to compel the release of applications, notes, and interview questions related to the recent Ward 3 vacancy and to block Council from holding closed meetings to discuss matters related to filling the vacancy.
Attorney Andrew Bodoh with the Richmond-based firm Thomas H. Roberts & Associates filed the petition in Fredericksburg Circuit Court on Thursday, on behalf of Guy Gormley, who is one of 14 Ward 3 residents who submitted applications to fill the council seat vacated last year by Tim Duffy.
The petition argues that Virginia’s Freedom of Information Act does not provide an exemption to open meeting requirements for the election of a council member. City Council held a closed session on January 28 for “discussion of prospective candidates for appointment to the Ward 3 City Councilor vacancy” and another on February 4 at which “interviews may be conducted with prospective candidates and further discussion concerning appointment to the Ward 3 City Councilor vacancy,” according to the posted agendas.
The agendas cited Virginia Code section 2.2-3711(A)(1) as permitting closed sessions for these purposes, but the petition argues that candidates for appointment to council are not candidates for employment, and that their selection constitutes an election, which is not covered by the exemption.
The petition also argues that the interview notes, applications, and resumes should be released to Gormley—who requested them under a Freedom of Information Act—because they were not compiled for use in a lawfully-held closed meeting and do not constitute “personnel information” under Virginia Code section 2.2-3705(1), which is the citation the city provided to support withholding them.
The petition argues that council did not follow proper procedures for entering into and coming out of the February 4 closed meeting, because there was no recorded vote to go into the session and because council did not “immediately reconvene in an open meeting” to certify that only subjects “lawfully exempted” from open meeting requirements” were discussed, as required by section 2.2-3712.
In addition, the petition argues that the city’s charter does not actually permit council to fill the vacant seat by appointment. The charter states that vacancies on council can be filled within 45 days by majority vote of the remaining members, “provided, however, that when more than two years remain in the unexpired term and the vacancy occurs at least 120 days prior to the next Council member election, the City Council shall, within 15 days of the occurrence of the vacancy, petition the circuit court to issue a writ of election to fill the vacancy.”
The petition states that “the preconditions for a special election and possible interim appointment … are not present in this instance.” Former Ward 3 representative Tim Duffy’s term expires in January of 2026.
“The selection ‘by majority vote of the remaining members of the Council’ is an election, whereby the remaining members of the Council serve as individual electors in place or ordinary electors,” the petition states. “No provision is made here for a permanent appointment of a person to fill a vacancy by the Board for the remainder of the term, but only for an interim appointment in anticipation of a special election.”
Virginia Code requires that petitions seeking enforcement of FOIA be heard within seven days.
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