Are Non-Disclosure Clauses Prohibited in Richmond City Government?
The Avula Administration follows in the footsteps of Stoney's in bucking transparency - but does the law allow it?
Some Richmonders hoped Dr. Danny Avula, their new mayor, would usher in an era of government transparency in stark contrast to the Stoney Administration’s notorious secrecy and intransigence on issues of good governance. Those hopes haven’t panned out.
As former Richmond Councilman Jon Baliles, who has thus far remained optimistic about Mayor Avula’s potential for reform, wrote yesterday in his article “Will We Tackle Corruption or Pretend It Doesn't Exist?”:
The fear of trying to hide or minimize bad press and seek cover for corruption should not overwhelm and prevent us from dealing with and rooting out the sometimes unpleasant truth and fixing it for the better of the community. If City Council and Mayor Avula take the former attitude instead of the latter, their legacy will be similar to Mayor Stoney’s.
One of the most egregious leftovers from the Stoney Administration is the usage of non-disclosure language in separation agreements with employees who are terminating their employment with the City of Richmond. Reporter Samuel Parker of the Richmond Times-Dispatch waited over 200 days to finally get details about severance agreements with 42 former City employees through FOIA.
As Parker reported this March:
The information, compiled in a spreadsheet, includes the positions and service years of the employees who received severance under former Mayor Levar Stoney, as well as the dollar amounts the city paid them.
But the spreadsheet does not identify the employees by name, or indicate their salaries.
The latter omission prevents The Times-Dispatch from determining whether the payments complied with city code, which includes a salary-based formula to determine the dollar amount for which departing employees are eligible.
Parker continued:
Avula said officials had excluded the names and salaries of the employees to protect their privacy.
“When a city employee signs a separation agreement under the current policy, both the employee and the city of Richmond agree not to disclose the existence of the agreement,” he said in a statement. “In the spirit of the promises made to these employees, I’ve decided not to release their names.”
Just last month, Graham Moomaw ran into this wall of nondisclosure and detailed the situation in his article “Richmond cut a deal to get its inspector general to leave. It’s so secret, officials can’t even say it exists” in The Richmonder. Moomaw described the conclusion of his Kafkaesque ordeal:
With the city refusing to explain further, The Richmonder filed six follow-up FOIA requests designed to get yes or no answers about the deal’s contents. Those requests forced the city to confirm the contract contains several secrecy provisions, but their exact scope remains unclear.
The Richmonder also asked for a copy of any standard legal template the city uses when drafting separation agreements, a document that wouldn’t be exempt from FOIA because it wouldn’t involve any privacy concerns for specific employees.
Officials claimed the city attorney’s office has no such template. When creating new separation agreements, Holmes said, city lawyers “sometimes” re-use language from prior agreements. But the city also considers those documents personnel records, she said, and therefore will not release them.
When asked if the city could release only the standard non-disclosure and non-disparagement language it uses — which would show how much legally binding secrecy Richmond is routinely imposing on itself and former employees — officials provided no further information.
Now, as Parker reported last week in the Richmond Times-Dispatch, “Richmond's deputy inspector general no longer works for the city. Officials won't say why.”
The Legality of Non-Disclosure Language
The Virginia Freedom of Information Act does not explicitly permit localities to use non-disclosure agreements or non-disclosure language in contracts with government employees. In fact, Va. Code § 2.2-3705.1(1) requires public disclosure of "contracts between a public body and its officers or employees, other than contracts settling public employee employment disputes held confidential as personnel records.” In the case of contracts settling disputes, the existence of such records would still be required to be disclosed, even if the records themselves were withheld.
No provision of the Richmond City Charter, no Richmond City Ordinance, and no Richmond City Administrative Regulation classifies separation agreements as specifically related to disputes or allows these agreements to be kept secret.
No provision of the Richmond City Charter permits the use of non-disclosure language in separation agreements, either. No provision of Richmond City Ordinance No. 2017-071, which concerns separation agreements, permits the use of non-disclosure language in separation agreements or allows them to be kept secret.
No provision of Richmond City Ordinance No. 2024-101, which concerns the City’s Pay Plan, permits the use of non-disclosure language in separation agreements or allows them to be kept secret.
No provision of Richmond Administrative Regulation 3.4, which concerns “alternative solutions to problems of misconduct and performance” and was approved by Mayor L. Douglas Wilder, permits the use of non-disclosure language in separation agreements or allows them to be kept secret.
No provision of Richmond Administrative Regulation 3.1, which concerns Richmond’s Freedom of Information Act policy, permits the use of non-disclosure language in separation agreements or allows them to be kept secret.
Importantly, Richmond Administrative Regulation 3.1 states, as explicit policy: "To further the purpose expressed above, City employees shall follow the spirit and requirements of the Virginia Freedom of Information Act, Va. Code Ann. §§ 2.2-3700—2.2-3714 (“VFOIA”).”
And we can find the spirit of the law best articulated in the policy statement of the Virginia Freedom of Information Act:
The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.
The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law.
So it seems like Richmond’s use of non-disclosure language in separation agreements and its attempts to keep the agreements secret aren’t explicitly permitted by law. City Council could clarify the situation, or maybe there’ll be resolution by way of a FOIA lawsuit.
Ultimately, we’re talking about the expenditure of public funds through secret contracts. And since they’re local expenditures, not state or federal, the longshot resolution might come from a challenge to the spending.
After all, the Supreme Court of Virginia did say in Goldman v. Landsidle (2001) that “[t]he right of taxpayers to challenge the legality of expenditures by local governments is a right permitted in almost every state” and that “[t]his right is premised on the peculiar relationship of the taxpayer to the local government that makes the taxpayer's interest in the application of municipal revenues “direct and immediate.”