ACLU willing to sue BOV
February 23, 2008
The American Civil Liberties Union is willing to help students sue the Board of Visitors because they claim that the board’s actions were a violation of Virginia’s Freedom of Information Act.
p. In a closed session last week, BOV members decided to make Dean of the Marshall-Wythe School of Law Taylor Reveley the interim president. Virginia law states that motions agreed to in a closed session must also be agreed upon in an open session in order to take effect.
p. Rector of the Board of Visitors Michael Powell countered that the BOV had to make a decision due to Nichol’s early resignation.
“[Reveley] is president designate and the board will formally appoint him this week,” Powell said. “Counsel has approved of this approach given the vacancy suddenly created by Mr. Nichol’s unexpected resignation.”
p. The director of Virginia’s branch of the ACLU, Kent Willis, disagrees.
p. “[The BOV] can go into a closed executive session to discuss personnel decisions, but any vote after that needs to be taken in open session,” he said.
p. “They had a right to meet in closed session … on Nichol’s job, but they did not vote in the public, and it is clear to us in that regard that they did violate the open vote law,” Willis said.
p. The ACLU is willing to send out a press release or help with litigation based on the violation of FOIA law.
p. “The basic rule is in law 2.2-3711, section B,” Staff Attorney for FOIA Alan Gernhardt said. “They can do a straw poll to get a sense of what their general consensus is in closed session and people can say, ‘Hey, I’m going to vote this way,’ but it doesn’t take effect until agreed upon in open session.”
p. The law reads: “No resolution, ordinance, rule, contract, regulation or motion adopted, passed or agreed to in a closed meeting shall become effective unless the public body, following the meeting, reconvenes in open meeting and takes a vote of the membership on such resolution, ordinance, rule, contract, regulation or motion that shall have its substance reasonably identified in the open meeting.”
p. Based on this law, the ACLU told Student Assembly Senator Matt Beato ’09, who contacted them last week regarding the BOV’s decision, that Reveley is not yet legally president and that the BOV did not have authority to issue a severance package to Nichol.
According to Willis the point of the lawsuit would not be to uncover information but to take corrective action.
p. “The problem I see with this is that you would want to see who voted which way, but [the BOV] made it clear it was a unanimous vote,” Willis said. However, BOV member Robert Blair ’68 announced this Tuesday that he was resigning from the Board, indicating that the decision may not have been unanimous as Powell had stated.
p. “Blair is now able to claim that he supported President Nichol and that Michael Powell misrepresented the “unanimous consensus” that he said existed,” Beato said. “If you have an open vote, that can’t happen. I’m frustrated because I fear BOV members might see an outcry from students and then pretend that they supported Nichol all the way, enabling them to curry favor with students and faculty, which they can do if decisions are made in closed sessions.”
p. Beato sent an e-mail Feb. 14 to other SA representatives to ask what they thought about pursuing the issue.
p. “I don’t think a lawsuit is a good idea because it would have the effect of removing President Reveley from his office. None of us need that right now,” Beato said. “Nevertheless, I do think that the BOV should have had an open vote. The reason why they did not have an open vote to appoint President Reveley is because they didn’t expect that they would need to appoint him so quickly.”
No other students appear to be pursuing litigation.
p. “Though some outside organizations have been mentioned at various times over the last week, we are dedicated to focusing our efforts on the future of the College,” said Dave Johnson ’09, SA undersecretary of Public Affairs for Williamsburg and one of those Beato contacted after talking to the ACLU. “This is a time for the students, faculty, staff and alumni of the College to engage in an open conversation about the events of the past weeks and months in order to proceed on solid footing.”
p. Johnson added that the work to be done regarding this issue will continue for some time.
p. “I believe that our community still has plenty of concerns that must be addressed, and revisiting the same issues for the next several months is not a productive element of that process,” he said.
Flat Hat News Editor Austin Wright contributed to this report.