When the Richmond City Council chose to part ways with former inspector general Jim Osuna earlier this year, there was no public vote or discussion of why the city’s public watchdog was suddenly leaving the job.

Behind the scenes, the city made a deal with Osuna that includes secrecy measures so sweeping they prohibit both sides from even disclosing the deal exists, according to a series of responses to public records requests from The Richmonder.

Megan Rhyne, the executive director of the Virginia Coalition for Open Government, said attempting to conceal the very existence of a government document flies in the face of Virginia’s transparency laws. 

Even when there might be a valid legal reason not to release certain information, Rhyne said in an interview, it’s unusual to claim a document can be concealed so completely no one can know it’s there.

“To say that you can’t even say whether it exists is taking it one step too far,” Rhyne said.

The agreement included severance pay for Osuna, meaning city officials approved a legal document that — on its face — signed away Richmonders’ right to know how some of their tax dollars were spent.

Non-disclosure and non-disparagement clauses included in the deal, the city confirmed, aim to both restrict Osuna’s ability to speak about the city and restrict city officials from speaking about Osuna.

“I’m just not a fan of confidentiality clauses,” Rhyne said. “Because people generally get to speak about matters of public importance.”

While confidential separation agreements aren’t uncommon in the private sector as a way to negotiate a mutually beneficial exit and avoid hostilities, there are limits on secret contracts in government due to the fundamentally public nature of government business. 

City officials appear to be pushing those limits by saying as little as possible in response to Freedom of Information Act requests and insisting the entire document can be kept confidential, with no attempt to redact sensitive portions and release the basic outline of a deal involving taxpayer money.

A spokesman for the City Council — which oversees the inspector general and made the decision to change the office’s leadership — would not answer questions about whether Council leaders signed off on the secrecy provisions or agreed to give Osuna severance pay.

“Richmond City Council and the RCC Office of Council Chief of Staff are not in possession of record/s and will not comment on personnel matters,” said Council spokesman Steve Skinner.

Though officials offered no rationale for why separation agreements must be kept highly confidential, the deals can help shield the city from lawsuits or negative comments from former employees. They can also incentivize employees to leave quietly with a payout and a commitment the city will protect their reputation and ability to find future employment, even when it’s clear their current employer no longer desires their services.

However, a policy weighted toward maximum secrecy leaves little room for the public’s right to know what’s going on at the top levels of City Hall, according to Rhyne. 

In Osuna’s case, she said, the lack of any explanation or open discussion leaves the public guessing about whether his departure was related to his work or caused by some other conflict going on at City Hall.

“This is the expenditure of public funds,” said Rhyne. “This is an agreement that is kind of premised on ‘something went wrong in this relationship.’ And this document represents a settlement of what went wrong.”

As head of an office tasked with investigating waste, fraud and abuse in city government, Osuna’s work often made headlines. Last year, he led an investigation into wide-ranging violations in the city’s election office, producing a report that led to the resignation of former election chief Keith Balmer. Osuna’s office had also been investigating the city’s failures to notify taxpayers when they were owed a credit or a refund, a probe that led to a dispute with the city attorney’s office over whether Osuna had the authority to investigate the tax issues.

Mayor Danny Avula’s administration, which has pushed to be more transparent about severance pay for departing employees, provided some information on the terms of Osuna’s departure, even though Osuna was a Council appointee who didn’t report to the mayor.

For almost six years of work for the city, Osuna was granted $29,809 in severance, according to communications director Ross Catrow.

Previous commitments by the city to keep separation deals confidential were a factor in Avula’s decision to only release limited information on past severance payouts earlier this year, without releasing the names of people who received them.

“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,” Avula said in a March news release that listed severance payouts going back to 2017. “In the spirit of the promises made to these employees, I've decided not to release their names.”

It’s not clear why the city is continuing to make non-disclosure promises after the mayor characterized them as an impediment to his efforts at retroactive transparency.

City Attorney Laura Drewry — who advises both the legislative and executive branches of city government — didn’t respond to emailed questions about why the extensive secrecy provisions were necessary. She also didn’t respond to a phone call to her office.

Before ascending to one of the most influential jobs at City Hall, Drewry worked in the civil litigation division, which defends the city against lawsuits and handles employment matters.

Even though the Council made the closed-door decision to make a change in the inspector general role, Skinner said any document formalizing that decision would be a Human Resources matter and not something the Council itself would have.

A mysterious employment ‘dispute’

To justify the decision not to release the seven-page agreement with Osuna, officials cited a FOIA exemption that shields contracts settling employment disputes. 

City Councilor Reva Trammell (8th District) has said she feels Osuna was unfairly shoved out of the job and has portrayed it as something far different from an amicable departure that grew out of even-handed negotiations. 

Osuna’s exit appears to have rattled remaining employees in the inspector general’s office, some of whom have objected to a staff shakeup they too don’t seem to understand, according to the Richmond Times-Dispatch.

At a June 2 meeting, Trammell accused Council leadership of intentionally scheduling a closed-door discussion on Osuna while she was absent to attend her grandson’s graduation. She asked why the matter was so urgent it had to be addressed while she was gone.

“I know what investigation he was working on,” Trammell said, implying Osuna’s departure had impeded the work of the inspector general’s office.

The dueling accounts of Osuna’s exit are similar to the confusion and secrecy that surrounded the departure of former Department of Public Utilities director April Bingham earlier this year in the aftermath of January’s water crisis.

Avula initially portrayed Bingham’s departure as an “amicable separation.” But after Bingham backed out of the separation deal she was offered, city officials instead said she had been fired.

In an interview with local TV station WTVR — which presumably wouldn’t have happened if Bingham signed a deal with a non-disclosure clause — Bingham said she was “coerced” into leaving.

“I was presented with a document, told I needed to sign that day. I was asked for my badge, my cell phone, my keys, and that was it," Bingham told journalist Tyler Layne.

In response to an earlier FOIA request seeking the severance package offered to Bingham, the city refused to release that document as well. At the time, officials cited the same transparency exemption for contracts settling employment disputes. The city gave that response on Feb. 5,  even though Bingham had already sent Drewry an email on Jan. 22 revoking the deal. That meant that any dispute she had with the city had not, in fact, been settled.

Officials initially indicated Bingham would receive severance. After Bingham revoked the deal — a decision that apparently freed her to speak up with her views on the water crisis — the city said Bingham would no longer get severance pay.

The Bingham episode is a stark example of the city offering a confidential separation deal to an employee who would otherwise be fired, but it’s not clear if that’s what happened with Osuna.

Like Osuna, Bingham did not submit a resignation letter.

Evasive FOIA responses

Virginia’s transparency law states as a guiding principle that “the affairs of government are not intended to be conducted in an atmosphere of secrecy.” The law includes numerous FOIA exemptions allowing sensitive documents and discussions to be kept confidential, but instructs government officials to use those exemptions narrowly and grant broad access to public records to promote “an increased awareness by all persons of governmental activities.”

If officials choose to keep records confidential, they have to identify the subject matter of those documents with “reasonable particularity,” a rule that gives the person making the request some idea of whether a FOIA exemption is being validly applied or not.

That conflicts with the city’s attempt to declare some documents so sensitive their existence can’t be disclosed and seems to be causing city employees to believe they aren’t allowed to explain what some of their FOIA responses mean.

Because it was unclear what kind of document the city had signed in relation to Osuna’s departure, The Richmonder’s original FOIA request on May 14 sought copies of any non-disclosure, non-disparagement or separation agreements, as well as any resignation letter submitted by Osuna. 

On May 29, the city said there was no resignation letter, but indicated there was a single document relevant to the other three parts of the request. The response gave no description of the document, apart from referencing FOIA exemptions for personnel records and contracts settling employment disputes.

When asked for a clearer explanation of what the document was, FOIA Manager Julia Holmes said the city didn’t have to provide one.

“After consulting with our legal counsel, I received guidance that the previously provided description below sufficiently satisfies the reasonable particularity requirements as defined by FOIA,” Holmes said.

When asked where in the email correspondence the city had identified the subject matter of the document, Holmes didn’t respond.

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.

Council pushing for fewer public votes on personnel

The Council has recently parted ways with two of its high-ranking appointees, Osuna and former chief of staff LaTesha Holmes, without a public vote or discussion.

A majority of the Council members are backing pending legislation to take more staffing decisions out of the public eye.

The proposed ordinance introduced last month would delegate the Council’s hiring and firing authority over its own employees — including Council liaisons, policy analysts, budget analysts and public relations specialists — to the Council chief of staff. Council members would still have authority over their own liaisons, but those staffing decisions would no longer require public action by the Council.

A memo explaining the ordinance, which is set to be heard on July 23, says it would help “avoid the need for public votes and discussion of personnel matters best left to Human Resources.”

Contact Reporter Graham Moomaw at gmoomaw@richmonder.org