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South Hill seeks dismissal of FOIA lawsuit

SoVaNow.com / March 11, 2020
South Hill has asked to dismiss a lawsuit pending in Mecklenburg County Circuit Court that aims to disclose unspecified complaints against Town Manager Kim Callis.

Through its attorney, the Town has denied any violations of Virginia’s Freedom of Information Act, the law that Midlothian attorney Richard Hawkins has cited as the basis for bringing civil action against the town.

Through his lawsuit, filed Jan. 30, Hawkins is seeking to obtain complaints from citizens or third parties about Callis — complaints which he claims are being improperly withheld from the public. Hawkins accuses the Town of violating the state’s FOIA law, which ensures access to public records and meetings in Virginia.

In a response submitted by the town’s attorney, Melissa York, Hawkins’ complaint is dismissed as being outside the scope of the Information Act, which carves out exceptions for when records may be withheld or meetings conducted behind closed doors. Those exceptions relate to sensitive matters that could be adversely affected by public disclosure, such as real estate transactions, legal discussions and personnel decisions.

Hawkins’ “unsubstantiated belief that something has been erroneously withheld” is not valid grounds for him to ask Circuit Court to compel the Town to produce more documents, particularly those exempted under FOIA, the Town’s demurrer states in response .

Hawkins filed the lawsuit in January after making three attempts to obtain what he contends are public documents of complaints against Callis. Hawkins’ filing seeks communications, both internal and external as well as any memorialization of verbal communications, and resignation letters submitted by three high-level town employees, received by “any member of the Town Council, directly to Mr. Callis, or anyone else in the town government from Sept. 1, 2018 to the present.”

Hawkins claims his first request for documents was made Sept. 9, followed by a second request sent Oct. 15, and a third written request submitted to the town on Jan. 6.

In its Feb. 21 demurrer, the town says it “properly responded to Plaintiff’s VFOIA request” by producing 153 pages of documents on Sept. 23, an additional 95 pages on Oct. 25, and 52 more pages on Jan. 10. The 27 pages the town said it withheld contains personnel information, documents related to pending litigation and four pages of documents that “were not responsive to the requests.”

In his complaint, Hawkins argues the Town was too restrictive in its application of the FOIA exemption provisions, and therefore has repeatedly withheld documents that should be disclosed. At the very least, the Town should provide him with redacted copies, he contends.

Hawkins also expressed concerns about ongoing personnel problems in South Hill, including the resignation of former Finance Director Katherine Bigelow and Director of Public Works Bill Wilson, both of whom reported directly to Callis as town manager. Hawkins said he was concerned about a third unnamed individual who “had difficulties” with Callis.

Hawkins claimed that he was motivated to file the FOIA request after learning “that Callis had engaged in some unusual actions during the summer of 2019. Notably on Aug. 7, 2019 Callis sent out a memo — perhaps best described as a ‘gag order’ — to the Town’s supervisory personnel telling them not to discuss ‘Town employee and employment matters’ with either the mayor or the town council members.”

He called the memo “unusual” since all questions or concerns about employment matters were to be raised directly with Callis. Hawkins alleged that “this seemed like an odd (if not counterproductive) structure to handle complaints, and … looked like an attempt to stifle potentially valid or reasonable concerns about the operations of the Town and its employees.”

Amid the town’s FOIA battle with Hawkins, Council members adopted a new employee handbook at their January meeting that included a new grievance procedure, harassment and anti-retaliation policies and whistleblower protection. The handbook describes the grievance procedure as an “immediate and impartial method for the resolution of disputes arising between the municipality and Town Employees,” but it does not include any alternate provision that would allow an employee to bypass the town manager if their complaint involves the town manager.

The harassment policy contains a similar limitation in that it requires initial reports to be forwarded to the Town Manger, gives the Town Manger absolute discretion over whether to investigate the complaint or even call a panel to hear the complaint. While the whistleblower provision prohibits the town from discharging, threatening or otherwise discriminating or retaliating against a whistleblower, it does not provide guidance on how to initiate this type of complaint.

If the employee believes he or she is being retaliated against, the retaliation policy expects the employee to file a written report with the town manager. There is no alternate procedure available if the employee in question believes the retaliation is coming from the town manager.

The new rules of conduct, also included in the employee handbook, say employees will be subject to discipline if they fail to follow the rules stated in the handbook or report “an employment or personnel matter directly to a member of Town Council or the Mayor” instead of through the appropriate chain of command.

Hawkins has not raised any concerns about these new policies, though members of the business community who are familiar with the handbook say its limitations feed Hawkins’ narrative that the Town’s FOIA response is both inaccurate and deficient — and affirm their belief that the town is hiding a bigger problem.

With the filing of Hawkins’ lawsuit and the town’s response, it will be up to the court to decide if the case warrants a hearing or should be summarily dismissed. As of Monday, no hearing date has been set.

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