Konick vs. town settlement possible

Judge dismisses sanctions motion, but also fines Konick $1,000; town tables further action on 2013 beautification

Attorneys for the town of Washington and the Inn at Little Washington are apparently in talks with local lawyer David Konick, a discussion apparently aimed at resolving the matter of the town’s 2013 participation in a beautification project with the Inn and Trinity Episcopal Church.

Konick’s lawsuit challenging the actions has kept all three parties in circuit court, if not billable legal fees, since April.

This week’s developments in the continuing saga are in three parts:

— the settlement talks;

— last week’s split decision in circuit court that sanctioned Konick for filing a property-related action as part of his suit but also dismissed, for lack of evidence, Inn attorney David Fiske’s motion to sanction Konick for the alleged vendetta Fiske claimed was driving his suit;

—  and the town council’s meeting this Monday (June 8), at which it adopted a new budget, tabled further discussion of the beautification issues until a special meeting scheduled for June 17 and brought up the possibilities of Avon Hall development, water and sewer rate increases and fees for future Freedom of Information Act (FOIA) requests.

Part I: Settlement?

Konick’s March lawsuit, which Rappahannock County Circuit Court Judge Jeffrey W. Parker ruled two weeks ago could not proceed because Konick (who’s not a town resident) had no standing to pursue it, sought the court’s invalidation of several actions taken by the Inn and the town council in 2013 as part of a “Town Beautification” partnership, actions Konick claimed violated state laws covering procurement, conflict of interest and church-state prohibitions.

On Friday, all three parties submitted a request to the circuit court to extend, to June 18, the 21-day period Parker allowed for Konick to resubmit his original lawsuit petition, and the town council subsequently scheduled a continuation of its June session to 7 p.m. Wednesday, June 17 — the day before that deadline.

“Lawyers for all three parties are having discussions,” Washington mayor John Sullivan said Tuesday.
“I think most people, and certainly I, have had enough legal action, and too much spending on lawyers; I think the town, the county and most people who live here would like this all to come to a halt.”

The talks have been urged by several members of the local community, Konick said Tuesday, including at least one county supervisor and several town council members.

“It’s a step in the right direction,” Konick said of the talks with the town and Inn attorneys.

Though no one directly involved would discuss details, one local political observer who asked to remain anonymous pointed out that even if the town ceded to Konick’s suggestion that the town have the 171-foot stub end of Middle Street west of Main Street appraised — its abandonment by the council and “gifting” to The Inn was among the allegedly illegal acts Konick’s suit cited — and that appraisal turned out to be for, say, $5,000 — that would still be significantly less than what The Inn would have to pay Fiske to pursue the case further.

(Fiske said in court last week that the Inn had already spent $35,000 on legal fees; the town’s fees for town attorney John Bennett and special counsel Robert Mitchell last month totaled more than $20,000.)

Part II: Judge Parker’s split decision

Last Thursday (June 4), Judge Parker dismissed, with prejudice, a motion for sanctions against Konick, for allegedly suing the town of Washington and the Inn at Little Washington for an “improper purpose” — that being primarily revenge, according to Inn attorney Fiske’s motion.

Parker’s dismissal with prejudice — meaning it can’t be brought before the court again — came near the end of a well-attended 45-minute hearing, after Fiske said he wanted to withdraw the motion and Konick objected, saying he’d prepared evidence and had witnesses waiting to refute the Inn attorney’s claims that he filed the suit because he was a “hateful homophobe.”

Fiske moved to withdraw the motion for sanctions after Parker made it clear he expected to hear evidence of Konick’s intentions. Fiske had no witnesses to call or additional evidence, he told the judge.

Parker sustained Konick’s objection to the motion’s withdrawal, Konick having argued that he’d come prepared with witnesses and other evidence that would attest to his legitimate reasons for bringing the suit. And then Parker immediately dismissed Fiske’s motion, with prejudice, noting that he expected to hear facts and evidence to support it.

Earlier in the hearing, Parker heard arguments for and against Fiske’s motion to quash the lis pendens notice filed by Konick as part of his original suit. Fiske said the lis pendens, a legal instrument filed against a property title (in this case, the Inn’s property), was filed merely to harass the Inn. He claimed it was improper because Konick had no interest, monetary or otherwise, in the property, as the law required. Konick claimed he filed it in good faith, after discussing it with another attorney and property-title consultant, because one of the court’s remedies he sought in the suit was the possible forfeiture of property.

Parker ultimately agreed with Fiske and granted the motion, also imposing sanctions against Konick by ordering him to pay the court $1,000.

Part III: The council moves on

The town council’s regular monthly meeting Monday night began with a letter from Inn attorney Fiske, which Sullivan read aloud (Fiske was not present). In it, Fiske said the Inn and its owner Patrick O’Connell — who was present, and sits on the town council, and whom Konick’s suit alleged violated conflict-of-interest laws by not disqualifying himself from the council’s 2013 actions — have been “diligently working for the past several months” to work out a lease agreement with the U.S. Post Office in the Inn-owned Krebser Building.

Fiske reminded the council that the Inn could not continue those negotiations until there was no question of the ownership of the stub street, which runs along the side of the Krebser Building (some have said a renovated post office would front on the stub street rather than Main Street).

Though the council meeting’s printed materials pointedly included copies of Parker’s five-page May 18 ruling — which ruled against Konick’s standing — the council removed an agenda item Monday that included “possible action” on its 2013 appropriation of $20,000 to assist with the Inn’s $200,000 improvement project (which Konick’s suit alleged violated church-state separation prohibitions, since the project including repaving Trinity church’s parking lot, which the Inn leases). And then, after its public meeting, the council met in closed session to discuss “pending litigation” (meaning, the possibility of a settlement).

The council’s first action was to unanimously approve its $859,350 fiscal year 2015-16 budget, a budget that is slightly down from last year’s and which has produced no comments from the public or the council at recent hearings. The budget also includes a downward revision of the town’s meals and lodging tax revenue — its only tax revenue — from last year’s optimistic $360,000 to $340,000. (The estimated full-year FY2014-15 revenue, a number that’s not final until June 30, was included as $311,200.)

Council members then discussed — but delayed final approval to next month — a measure that would allow the town to charge copying fees and a rate for hourly staff time to fulfill requests for documents under Virginia’s FOIA Act (which already allows local jurisdictions to impose fees for the additional costs of copies and staff time).

Such FOIA fee policies, as the council was told by Jay Brown, an attorney whose practice involves many such requests, are fairly standard among county and local governments around the country.

Sullivan introduced a discussion of water and sewer usage rate increases by saying the town needed to consider them, but no action would be taken until public hearings on the subject later this summer.

Neither the town’s five-year-old wastewater treatment plant nor its much older water system is self-supporting, Sullivan and Vice Mayor Gary Schwartz pointed out. Water rates have not been raised in about 13 years, Schwartz said — the town deciding not to do so, in part, to offset the initial high hookup costs it knew were coming in 2009 and 2010 for its sewage-treatment plant. The town’s only source of tax income is its meals-and-lodging revenue, Sullivan said.

The council voted to schedule its first public work session on the matter would be at the council’s meeting July 13.

The council also scheduled two public hearings — 7 p.m. Monday, June 29, and 3 p..m. Sunday, July 12 — to discuss ideas generated by an ad hoc Avon Hall Study Group, which has met twice in the last month and submitted a report of its discussions to the council.

The study group’s discussion, which appear to have focused primarily on a proposal offered by town resident and well-known property rehabilitator Allan Comp, who offered ideas for a planned development of six to eight residential properties that could surround the central historic Avon Hall home, which would be preserved, along with the property’s overall park-like nature.

Sullivan said June 29 and July 12 sessions would be anyone’s opportunity to weigh in on the study group’s recommendations — although the only actual “recommendation” to be found in its two-page report was that at least two public meetings be held to discuss ideas for Avon Hall, the former Carrigan estate that the town purchased more than a decade ago but has not developed (other than to allow various groups, including RappFLOW and Old Rag Master Naturalists, to rehab the estate’s pond and build a small nature trail and preserve.

Thom Pellikaan of Woodville rose during the council’s public comment session to ask if the council would consider increasing the contrast of light-wood and white lettering on its new street signs — made this year by Rappahannock County High School woodworking students — to make them easier to read.

“The signs confuse me” and are difficult to read, Pellikaan said.

“I consider myself a friend of the town, so think about the many people who are visiting the town for the first time and are not sure where they are,” he added, and produced a personal check for an undisclosed amount, placing it on the council’s table, “to help pay for the effort, if the council sees fit.”

Sullivan, at Bennett’s suggestion, asked Pellikaan to hold off donating funds until the town could be sure of the legality of such a thing, and to return to next month’s meeting.

“Yes, of course,” Pellikaan said. “If I can find my way here.”

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