Out-of-court negotiations for a settlement failed to produce an agreement last week, as Rappahannock lawyer David Konick filed an amended petition in circuit court last Thursday (June 18), again seeking the court’s judgment on allegedly illegal actions by the town of Washington and the Inn at Little Washington in a 2013 “Town Beautification” partnership between the two and Trinity Episcopal Church.
Several of original claims appear amplified and reorganized in the new 64-page petition filed by Konick — whose first attempt at legal recourse was rebuffed by Circuit Court Judge Jeffrey W. Parker, whose ruling in late May that Konick (who’s not a town resident) did not have sufficient standing also gave him a chance to amend his original petition.
In the new petition, for example, on the issue of standing, Konick notes — in addition to his regular use of a leased post office box and his payment of the town’s meals-and-lodging taxes when dining in town — that he is also a member of the Masonic Lodge that shares ownership of the Washington Baptist Church property, and that the town’s decision to enter a partnership that resulted in Trinity’s parking lot being repaved and renovated was thus discriminatory.
Originally the judge gave Konick 21 days; that deadline was extended by all parties — Konick, town attorney John Bennett and Inn attorney David Fiske — to allow talks of a settlement to progress over the last two weeks. They did not apparently progress far enough, although none of the parties would speak about the negotiations on the record.
Reports also went unconfirmed that Fiske — on behalf of the Inn and its owner-chef Patrick O’Connell, who also serves on the town council — planned to file a countersuit this week, one claiming Konick has abused the legal process for his own benefit.
It’s worth noting that Fiske’s and the town’s motions for sanctions against Konick — for allegedly pursuing the suit as part of a vendetta against O’Connell — were dismissed with prejudice (meaning they cannot be resubmitted) on June 4 by Parker, who told Fiske that day he expected to hear evidence of Konick’s allegedly improper motives. Also worth noting is that at that same session, the judge fined Konick $1,000 for improperly filing a lis pendens notice, a lien-like document filed against the owner of the Inn’s properties.
“It was unfortunate that the matter could not be resolved and that further taxpayer dollars could not be saved,” said town attorney Bennett on Tuesday. “But . . . matters have continued to be pursued, through and including Mr. Konick’s refiling, which the circuit court judge has already said there is no legal merit.”
Bennett said Winchester attorney Robert Mitchell had again been retained by the town to represent it in further proceedings (which Bennett cannot do, as Konick has said all along that Bennett was a possible witness).
Konick said Tuesday his amended petition hews to his original reasons for filing the suit — that the town made an unlawful appropriation of $20,000 to support the Inn’s reportedly $200,000 beautification project, thus violating the Virginia constitution’s ban on state support of religious organizations, that O’Connell and other town officials violated procurement and conflict-of-interest laws in the months leading up to the council’s June and July 2013 votes, and that the town unlawfully transferred the 170-foot stub end of Middle Street west of Main to the Inn, which owns the properties on all three sides of the street.
Based on comments Parker made in his ruling in late May, Konick said, the alleged violations of the Establishment Clause of the U.S. Constitution and the stricter ban on church-state relations in the Virginia Constitution are now more prominent in his petition.
He said his filing an amended petition also reflects “the fact that certain other parties have threatened me and bullied me into dropping the case, instead of just resolving it,” the latter something Konick reportedly suggested could be done by merely having the stub street appraised, even for a nominal amount, rather than being handed over to the Inn, and by the Inn and the town “exchanging checks” for $20,000, the town’s substitute $20,000 appropriation carrying a restriction that none of it could be used to benefit Trinity.
“It strikes me as curious that Mr. Konick would refile, given the language of the judge’s decision to his first filing,” said town council member Gary Aichele on Wednesday. “But it’s up to the judge now. I was was hopeful that the attorneys involved could come to some settlement on behalf of the parties involved, and there was a moment when i actually thought that was possible — and everyone would have benefited, including Mr. Konick. Not for lack of effort, but it didn’t happen.”