CHRISTIANSBURG — Johana Hicks was elected to town council earlier this month after saying she opposed the amount of closed sessions some of her soon-to-be colleagues choose to have.
And before she takes office, Hicks is already taking a stand. The current council asked her to sign a nondisclosure agreement in order to participate in executive sessions before she takes office on Jan. 1 , which would require her to not divulge anything she hears behind closed doors.
Hicks’ response: No.
Hicks got more votes than any candidate in the five-way race for three council seats on Nov. 5.
She said her stance against closed sessions is based on her opinion that town business should be discussed in public — except in personnel cases where disclosure could embarrass someone.
“This is something the people need to be involved in,” Hicks said. She called private discussion of town business “sickening.”
Virginia allows local governments to hold private discussions on topics such as personnel issues, potential litigation, property negotiations and interviews with candidates for appointed public boards and committees.
However, nothing legally binds elected officials in Virginia from divulging details of closed meetings or executive sessions, according to Megan Rhyne, executive director of the Virginia Coalition for Open Government.
“They can go into closed session if they choose, but they don’t have to go into closed session,” Rhyne said. “There’s nothing that prohibits anyone from saying what was discussed in private. There are certainly consequences for doing that with your colleagues. People may not want to trust you if they think you’re going to turn around and tell people. But there’s nothing in FOIA [Freedom of Information Act] that would prohibit them from disclosing it.”
Hicks’ refusal to sign the nondisclosure agreement was at the root of an abruptly halted meeting on Nov. 14 that was organized to interview law firms for contract town attorney services.
Councilwoman Merissa Sachs — who signed a nondisclosure agreement after her election two years ago — had earlier voiced concerns about Hicks attending the private meeting.
“I did not have any issues signing an NDA [non disclosure agreement] prior to taking my oath for council,” Sachs wrote in a statement to The Roanoke Times. “If an exception was to be made and the person in the room doesn’t offer an NDA, in my opinion this warrants an open meeting and not a closed one, assuming legally that can be done with the subject matter.
“Executive sessions are closed to protect the integrity of information related to the hiring and firing process, land development, etc,” Sachs added.
“If information were to be released prematurely, that information may help the other legal party in their presentation and interview before the final decisions were made, giving one or both an unfair advantage.”
Sachs said her concern was that council could enter an “unlawful” meeting and was not willing to take that chance.
She left the room before council ended its Nov. 14 meeting.
After Councilman Steve Huppert’s motion to enter closed session failed to get a second, the meeting was adjourned.
Despite Sachs’ concerns, several other council members had agreed to let Hicks attend the private meeting, town spokeswoman Melissa Demmitt said.
No other council member offered comment for this story. Several declined comment and others could not be reached.
The debate about Hicks’ attending closed session s before taking office preceded the Nov. 14 meeting.
“I do not feel comfortable entering into an agreement of any kind that lacks public transparency,” Hicks wrote in a Nov. 13 email to the council and Town Manager Randy Wingfield. “I ran for office and was elected on this issue. I am a realtor and an adult and can differentiate when there is a privacy/personnel issue that needs privacy versus a situation that should be discussed in the open.”
Sachs responded to Hicks by providing reasons for closed session talks.
“I understand we are all adults; however not all adults act with responsibility and professionalism making it impossible to pick and [choose] who would need to sign a confidentiality agreement,” Sachs wrote. “It is wise for our council to be held to the same standard of confidentiality and non-disclosure in my opinion.”
Sachs continued: “I appreciate that you want to keep everything transparent; however there are times when the open discussion of some topics would impair the [town’s] position and perhaps some public business.”
Regarding her comment about “being adults,” Sachs said she was simply being honest about how town governance works.
“I was trying to be helpful so she [Hicks] can get through the learning curve that I went through, faster, so she is the most productive she can be,” Sachs said.
Sachs also told Hicks that she’s not trying to change the councilwoman-elect’s way of thinking.
Wrote Hicks, in response: “I will not be bound by a generic [nondisclosure] form that does not spell out who wished me not to inform people.”
Hicks also said she found it interesting that apparently only she and Sachs — the two women elected to council in recent years — were given nondisclosure forms related to closed session participation before taking office.
Demmitt clarified that sitting members of council — while already in office — had signed nondisclosure agreements in the past when the body was discussing certain economic development projects.
Sachs, however, is the only sitting member who signed a nondisclosure during her time as a councilwoman-elect, according to Demmitt.
“I’m not sure why the others didn’t. It’s possible they didn’t have closed sessions in their interim periods,” Demmitt wrote in an email. “It is council’s prerogative to require [an] NDA to allow an individual to sit in on their closed meetings.”
Demmitt also said Sachs was a member-elect when council was selecting a town manager in late 2017, a process in which the governing body wanted her to participate.
Town officials also recently discussed whether a council member-elect can be bound by a nondisclosure agreement.
“There seems to be no specific penalty for a council-electee (or any council member) from discussing closed meeting items (only reasons — exemptions — why council may have them,” Wingfield, the town manager, wrote in a Nov. 14 email to the council.
Wingfield’s response included a comment on the state law that governs how council members can be fined for disorderly behavior and how a council can expel a member for malfeasance.
“Whether breaching a trust of a signed agreement is malfeasance or misfeasance is arguable — someone could claim some higher moral obligation to release information if there is no criminal act,” Wingfield wrote. “I did not express this best at the meeting, but that is the gist of what Jim Guynn said.”
Guynn is a principal at Guynn, Waddell, Carroll & Lockaby, the Salem-based law firm that Christiansburg contracts for town attorney services.
Wingfield told council that it could possibly amend the nondisclosure agreement to say that it’s considered malfeasance to disclose closed meeting items, clarifying that there is a penalty with a majority council vote. That would require General Assembly action, he wrote.
Rhyne said she can see the rationale behind nondisclosure forms such as the one given to Hicks because member-elects are viewed as not having yet earned the privilege to hear certain information.
“I can understand what they’re trying to accomplish, but I could understand why someone would not feel comfortable signing that,” Rhyne said. “Because I would want them to trust my ethics and integrity to know ... when it is and is not appropriate to share information I’ve been privy to.”
Rhyne, however, said she’s no fan of nondisclosure forms in any circumstances.
“It’s not required,” she said. “It’s something they’re [Christiansburg council] choosing to do on their own.”
Guynn said the interviewing of town attorney candidates — which was the point of last week’s council meeting — can be done in open session. There are, however, reasons for doing those interviews in private, he said.
If the meeting is open, subsequent interviewees can get an advantage by hearing council’s questions and other candidates’ answers, Guynn said. There might also be discussion of a case that would be better fit in a closed meeting due to the privacy issues, he said.
Hicks said she’ll definitely take part in closed sessions after taking office, but that she’ll push to have fewer of those kinds of meetings. She said she does see instances in which closed meetings are essential.
“I will comply with the law and don’t need an NDA ... but my position — there are far too many [closed meetings] these days in this town,” she said.