Charlottesville city councilors were in a hurry to approve the interim city manager’s contract last month after parting ways with former manager Maurice Jones.
The city drafted a contract for Mike Murphy, an assistant city manager, to take the top job on an interim basis. A section on his benefits in the contract was redacted before it was released to the public.
After Mayor Nikuyah Walker asked why, Murphy signed a statement saying he would waive his “protections” in the public interest and release the full contract. The statement painted the decision as a goodwill gesture by Murphy and noted that the redacted information — details about retirement and job benefits — could be excluded from public view because of an exception in Virginia’s Freedom of Information Act.
But Virginia law explicitly spells out that employment contracts are public records.
The city attorney’s attempt to redact portions of the contract was a legal interpretation that one of the state’s foremost experts on FOIA said she has not seen before.
FOIA gives the government discretion to withhold personnel information about employees. But no provision of FOIA, the law says, should be construed as denying public access to employment contracts.
The council voted on the contract with Murphy on Aug. 6, as the city prepared for possible protests on the one-year anniversary of the deadly Unite the Right white supremacist rally.
Withholding parts of the contract “was an interpretation I had never seen before, and if they were going to take that route, it seems ill-timed considering the intense public interest in the hiring of whoever the successor was going to be,” said Megan Rhyne, executive director of the nonprofit Virginia Coalition for Open Government. “They were kind of on notice that this is a really, really big deal to the public.”
The redacted contract happened under an acting city attorney, Lisa Robertson, the city’s chief deputy city attorney. The new city attorney, John C. Blair II, has since released the contract without any information hidden.
The vote Aug. 6 to approve Murphy’s contract was 3-2.
During the meeting, Deputy City Attorney Allyson Manson-Davies said the Virginia Freedom of Information Advisory Council “has consistently made it clear that retirement benefits are exempt” from mandatory disclosure.
The council is a state agency that answers questions in disputes over FOIA and issues advisory opinions.
When asked about the FOIA’s requirement that contracts be open, Alan Gernhardt, executive director of the FOIA Council, responded by email:
“Generally when people ask about it I refer them directly to the law itself, where subdivision 1 of § 2.2-3705.1 provides that ‘No provision of this chapter or any provision of Chapter 38 (§ 2.2-3800 et seq.) shall be construed as denying public access to (i) contracts between a public body and its officers or employees, other than contracts settling public employee employment disputes held confidential as personnel records under § 2.2-3705.1.’”
Mayor Walker, one of the two “no” votes, argued in August that the decision should be delayed so that negotiations could continue. And she was concerned about a lack of transparency.
In the weeks leading up to the approval of the contract, the council had extended a job offer to an outside candidate for the position.
Sidney Zemp, a recently retired Army officer, declined to take the job after Walker publicly opposed him for the post.
Uncertain about job security, Murphy negotiated safeguards for his retirement benefits. Uncomfortable with those terms in the contract, Walker disagreed with the city attorney’s office when it said the law gives localities discretion to withhold details about retirement benefits outlined in contracts.
Last month, Walker said, she consulted the Virginia Coalition for Open Government and two law professors to get a reading on what the law dictates.
“I was doing my homework and trying to get the city to acknowledge that the advice we had been given was incorrect,” she said.
Walker added: “This is hopefully something that we’ll do better moving forward.”
Another councilor, former Mayor Mike Signer — a lawyer who once handled FOIA requests in the office of Gov. Mark Warner — declined to comment.
Even after Murphy’s statement purportedly waiving his rights, the city continued to redact several parts of the contract detailing Murphy’s retirement eligibility.
When asked what part of the law allowed the city to keep some information secret, city spokesman Brian Wheeler provided a full copy of the agreement, saying the new city attorney wanted it made public.
In an interview Wednesday, Manson-Davies said the city attorney’s office contacted the FOIA Advisory Council after the Aug. 6 meeting. She said officials there told the city that it cannot redact parts of contracts.
Because the law says personnel information is exempt from mandatory disclosure but then says no provision “shall be construed as denying public access to contracts between a public body and its officers or employees,” there could be confusion, Manson-Davies said.
“It is literally a legal argument about how you read two paragraphs together,” she said.
She added: “But it’s clear that the FOIA council believes the second paragraph trumps the first one.”