While I was volunteering to serve meals at the winter shelter, Supervisor Jamieson responded with a lengthy email and included members of the local press in the reply. At that point, the exchange shifted from a private dialogue into a public-facing communication, reframing a procedural question into a broader transparency narrative.

** SUPERVISORS DO NOT REPLY ALL **

Hello Lewis,
Thank you for taking the time to provide such detailed written feedback on the Legal Services Transparency and Review Policy. You are the first person to offer substantive feedback on the policy, which provides me with a valuable opportunity to clarify what the policy actually does and to address mischaracterizations that may confuse other supervisors and members of the public. I particularly appreciate that you’ve put your concerns in writing, which stands in notable contrast to the absence of any written response from my fellow supervisors or from the County Attorney. I am including representatives of the local press in this reply on the same principle that you replied to all supervisors. The wider the distribution of information and dialog, the better.

The purpose of this response is not to dismiss your concerns, but to explain where I believe your characterization of the policy differs from what the policy actually requires, and to clarify the legal and governance principles underlying it. Several of your objections appear to rest on fundamental misunderstandings about the relationship between transparency, attorney-client privilege, and the Freedom of Information Act. I hope this response will be helpful not only to you but to my colleagues on the Board and to interested members of the public.

Before addressing your specific comments point by point, it’s important to try to establish the big picture that underlies the policy and to clarify what the policy actually requires.  

The Core Driver: Legislative Transparency

Elected supervisors bear ultimate responsibility for policy decisions affecting the citizens we serve. We have a duty to understand the legal reasoning underlying our votes and to be able to explain that reasoning to constituents who inquire. This duty is particularly important when we are asked to adopt ordinances, amend the comprehensive plan, or make other significant regulatory decisions that become the law governing our community.

When the Board considers whether to adopt an ordinance, we are engaged in legislative deliberation—a fundamentally public process under Virginia law. We must weigh multiple factors: fiscal impact, community needs, practical implementation, and yes, also legal considerations. The Virginia Freedom of Information Act mandates that the public have access to our deliberative process and the factors informing our decisions, except under highly specific circumstances defined by statute.

The public has a right to understand why we pass the laws that govern them. Legal analysis of proposed legislation is part of that public deliberation, not a confidential matter requiring protection from public scrutiny.

The Fundamental Distinction: Legislative Analysis vs. Privileged Advice

Your letter repeatedly expresses concern about attorney-client privilege. These concerns rest on a fundamental conflation of two distinct categories of legal communication:

Category 1: Privileged Legal Advice
Legal strategy regarding actual disputes, pending litigation, contract negotiations, or specific legal transactions. This type of advice may be protected under FOIA’s attorney-client privilege exemption (§ 2.2-3705.A(13)) or the closed session provision for consultation on specific legal matters (§ 2.2-3711(A)(8)).

Category 2: Legislative Legal Analysis
Legal analysis of proposed ordinances, statutory interpretation for policy development, assessment of regulatory approaches, and general legal considerations informing legislative choices. This is public policy deliberation, not confidential legal strategy.

My policy addresses Category 2. FOIA already fully protects Category 1.

The error running throughout your letter is treating all legal analysis as if it were privileged legal advice. It is not. When the County Attorney analyzes whether we have statutory authority to adopt a groundwater ordinance, or explains the legal framework for regulating agritourism, or compares alternative approaches to a zoning text amendment, he is providing legislative analysis to inform policy choices that will be made by members of the Board. This is not privileged communication—it is part of the public deliberative process by which we make laws.

FOIA Already Defines What’s Protected

Your letter suggests that my policy somehow undermines or “reverses” attorney-client privilege. This fundamentally misunderstands how FOIA operates and what my policy requires.

Virginia Code § 2.2-3700(B) establishes the foundational principle:

“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.“

Under FOIA, the default is public access. Exemptions are narrow exceptions that must be specifically justified. My policy operates entirely within this statutory framework.

Section I.D of the policy states that written legal work product shall be publicly available “except as specifically exempted under FOIA” and that work product “may only be withheld from public disclosure when the County Attorney specifically cites an applicable FOIA exemption with explanation of how the exemption applies to the particular content.”

This does not “reverse” anything. It codifies exactly what FOIA already requires: public access is the default, and any exemption must be specifically justified under statute.

Moreover, the Virginia FOIA Council has been explicit about the limitations on using the “legal matters” exemption to close meetings. In Advisory Opinion AO-01-07, the Council stated:

“In a 1986 opinion the Attorney General stated that the legal matters exemption requires more than a desire to discuss general legal matters and may not, therefore, be used as a catch-all exception to the FOI Act’s open meeting requirement and does not justify the discussion of general policy matters in executive session, absent an appropriate legal issue.“

The Council further explained:

“[T]he ‘legal matters’ exception applies only to discussions of specific legal transactions or disputes and may not be used to justify closed meetings involving more general issues, even though those issues eventually may have legal consequences.“

This is critical: issues that may “eventually have legal consequences” do not qualify for closed session. Proposed ordinances are precisely such issues—they are policy choices with legal implications, not legal disputes requiring confidential strategy.

My policy’s closed session procedures (Section II.A.4) literally quote this FOIA Council guidance. I am being criticized for codifying what the FOIA Council has already told us is required.

The Attorney’s Proper Role

You write that “attorney–client privilege exists to protect taxpayers and residents by enabling candid legal advice on sensitive matters—not to shield the government from scrutiny, but to ensure sound decision-making.”

I agree with the second part of this statement but not the first. Attorney-client privilege exists to protect the County’s legal position in actual disputes and transactions. It does not exist to enable “candid advice” on legislative matters by keeping that advice from the public whose laws are being written.

You also write that the policy “places structural and political pressure on the County Attorney.” This characterization reveals a fundamental disagreement about institutional roles. The County Attorney serves the Board of Supervisors. His role is to provide us with the legal information we need to fulfill our duties. The Board—not the attorney—determines what information the Board needs and what actions protect the County’s interests.

Having our attorney follow an explicit formula for closed session motions that sets a high bar in public (i.e,. FOIA arrowly construed) and document his legal analysis for significant policy matters is not “pressure”—it is reasonable process. If these basic professional requirements constitute “pressure,” then accountability itself is being framed as problematic.

Nothing in this policy requires “extensive written legal analysis,” creates “presumptive public disclosure” of privileged advice, or prevents use of closed sessions. The policy requires documentation for significant matters, basic fiscal oversight, and explicit compliance with FOIA’s actual requirements pertaining to closed sessions.

I plan to follow up with another reply that is a point by point response but have not had time to do that yet. 

Regards,

Rich

Richard Jamieson, Ph.D.

Warren County Supervisor

North River District

https://foiacouncil.dls.virginia.gov/ops/07/AO_01_07.htm

https://law.lis.virginia.gov/vacode/title2.2/chapter37/section2.2-3712