Judge orders Gloucester School Board to release audio of improper closed session

The Gloucester County School Board violated transparency laws when it held a closed meeting in 2021 to discuss “personnel matters” but instead talked about conflicts between board members, according to a local judge who ordered the county to pay $4,000 in legal fees and took the rare step of fining the board $250.

School Board member Darren Post, who has been criticized by some of his colleagues as a troublemaker and pot-stirrer, says he recorded the closed meeting on his phone after getting tired of being berated by fellow board members in private. That recording — made at the last School Board meeting of 2021 after two incumbents had lost reelection bids and felt Post was partially to blame — captured other board members accusing Post of spreading “lies,” questioning his education and calling him a “coward” and “pathetic human being.”

“You are sitting there with a shit-eating grin on your face, not even answering any questions,” someone said to Post, a comment he publicly attributed to current School Board member Robin Rice. Rice did not respond to requests for comment.

The audio, which the Virginia Mercury obtained through a public records request after the court ordered its release, offers an unusual glimpse into what went on in one closed meeting in one county.  But many government watchers throughout Virginia suspect closed-meeting discussions often veer into topics that should be handled in the open.

“This happens all the time. And you can never prove it,” said former state Del. Tim Anderson, a Republican attorney who handled the lawsuit against the Gloucester officials. “The only way he could prove it was he had the wherewithal to pull out his phone and record what happened.”

Anderson resigned from his seat in the House of Delegates earlier this year to seek the GOP nomination for a Hampton Roads-area seat in the Virginia Senate.

An attorney who represented the Gloucester School Board in the case didn’t respond to requests for comment.

At another point in the recording, a colleague warned Post she intended to end his political career.

“I will seek all the money in the world over the next two years to make sure that you don’t hold another public office in Gloucester County,” said former School Board member Elisa Nelson, according to Post’s account of who was speaking. “I will dump thousands of dollars into your opponent’s campaign just to make sure you don’t win anything ever again.”

Other board members were recorded laughing when Post was the only person to vote against formally certifying that the closed-door discussion was lawful, a legal requirement after every closed meeting.

After listening to the recording, Judge Stephanie M. Revere sided with Post and penalized the School Board for a Freedom of Information Act violation.

“Because the discussion in this closed meeting as it relates to Mr. Post is so far outside the realm of what a reasonable person could possibly consider a professional discussion of a public officer or employee’s performance, the Court concludes a penalty is appropriate and imposes a $250 civil penalty,” Revere said in a May 24 written ruling.

The judge suspended the $250 penalty, noting the “true financial burden” of the largely symbolic fine would fall on taxpayers rather than the board itself.

Revere said she didn’t have to decide whether potential disciplinary action against a member of a public body is a legally valid reason for a closed session, because that wasn’t the School Board’s stated reason. School Board members aren’t school division employees, the judge wrote, which means a vague reference to “personnel matters” doesn’t apply to a board evaluating itself. Using personnel matters as a “catchall phrase” that can cover anyone in a public role, Revere wrote, violates FOIA’s “statutory requirement of specificity.”

The judge ordered the board to release all portions of the recording where personnel matters were not being discussed.

The legality of the closed session was a key point in the case. The Gloucester School Board argued the audio was exempt from FOIA because it was a record of a lawfully closed meeting. Post, who had submitted the audio to the board as a record of what happened, had already released portions of the recording on his Facebook page. His girlfriend, Kaitlyn Dooley, filed the legal challenge after the board denied her formal FOIA request for the recording. Dooley had already gotten a copy of the recording directly from Post, according to court records, a factor that led Revere to lower the attorney’s fees awarded to Dooley.

In the fall of 2021, when the recording was made, Post was publicly clashing with his fellow School Board members over the division’s policies on accommodations for transgender students. Some on the board were upset with a Facebook video Post published that October claiming the board had passed a policy that would lead to boys and girls sharing the same showers and locker rooms, an outcome he said would put students at risk of “rape” and “child pornography.” His online post included the email addresses of other board members.

At a joint meeting that month with the Gloucester Board of Supervisors, several School Board members accused Post of spreading misinformation about what they had done. Rice explained the General Assembly had recently passed a law requiring school divisions to adopt transgender-inclusive policies and noted Gloucester was under greater legal scrutiny than other localities. The county had lost a long legal battle with Gavin Grimm, a transgender Gloucester student, over the constitutionality of the division’s formerly restrictive bathroom policies.

Even though some board members had problems with aspects of the statewide transgender policy, Rice said, the board had a duty to follow the law.

“You will not find policies that mention anything that was circulated in that video,” Rice said at the meeting.

Post insisted he had accurately summarized the ramifications of the statewide policy.

“I don’t want anyone to think that I’m a liar,” he said. “Because I’m not.”

Troy Anderson, the current chairman of the Gloucester School Board, agreed with Rice that the board had taken no policy position on locker rooms or showers.

“Any assertions otherwise are a blatant lie perpetuated by an individual who has low reading comprehension and thrives off drama,” Anderson said. Anderson, who is not related to Tim Anderson, did not respond to a request for comment on the court ruling.

In an interview, Post said he was pleased with the court’s ruling, but “sad” it took a judge weighing in for him to prove to his colleagues his interpretation of FOIA was correct. He encouraged others in public office to make similar recordings if they feel FOIA laws are being broken.

“I don’t believe that politicians should be able to meet in a closed meeting to evaluate other politicians,” he said.