Possible suit alleges FOIA violations by supervisors

Konick says he will file petition on behalf of Sperryville resident for supervisors’ actions in search for county attorney

The Code of Virginia does not prohibit irony. Thus, over the manner in which it made decisions this summer to seek a replacement for its departing longtime county attorney, the Rappahannock County Board of Supervisors will now apparently be sued.

And because he would be a likely witness in such a proceeding, the county attorney can’t represent the board — and so the supervisors will be considering a resolution at their Oct. 3 meeting appropriating funds to insure all its employees and elected officials can obtain legal counsel in such civil cases.

A petition alleging violations of the Virginia Freedom of Information Act was expected to be filed this morning (Thursday, Sept. 29) in circuit court by local attorney David Konick, on behalf of Sperryville resident Marian Bragg, the petitioner. [Update: The suit was filed.]

The petition names the board of supervisors and, individually, its five elected representatives — although at least one of those names might be removed from the petition — and claims that the supervisors violated FOIA by discussing various matters relating to the search for a replacement for County Attorney Peter Luke, who’s retiring at the end of the year, that were not legitimately exempted from FOIA’s fundamental assumption that government business is public. (There are many exemptions, including discussions of personnel, salaries and contract-related negotiations.)

In addition, a letter sent along with a “draft” of the petition by Konick to the supervisors, a copy of which was obtained by the Rappahannock News, offers to delete any respondent’s name from the petition (which seeks civil penalties from each of up to $22,000) if that supervisor signs an “acknowledgment” that “the Board violated the Freedom of Information Act by discussing non-exempt matters in a closed session” and that its members failed to note the violation upon returning to open session.

“It’s a big mess,” said Jackson district supervisor Ron Frazier Wednesday. “I don’t know how much I can discuss, since it looks like this will become a legal proceeding.”

Frazier said at noon Wednesday that he was “considering” signing the “acknowledgment” offer, or settlement, but had not yet done so. [Update: Frazier signed it, and the suit names only the other four board members, and the board itself.]

Since the matter appeared headed for court, Luke, meeting with reporters in County Administrator Debbie Keyser’s office Wednesday morning, said he wouldn’t talk about anything the supervisors discussed in closed session at those meetings, but did vigorously maintain that the matters they discussed were legally exempted from public discussion by FOIA’s provisions or by laws covering attorney-client privilege, the client in this case being a governing body.

In addition to the proposed resolution appropriating funds for a legal-defense plan for county employees and officials, a second resolution drafted by Luke declares that unspecified criminal or civil sanctions would be sought against “whatever person or persons . . . who may divulge or repeat, any discussions or statements by this Board or by its legal counsel . . . that are protected by any right of confidentiality, privacy or privilege.”

Konick said Wednesday morning that the claims in Bragg’s petition came solely from “the official board minutes that were circulated for approval on Boarddocs,” referring to the county’s government-information website, and from videos made by volunteer Kaitlin Struckmann of the supervisors meetings — and from the advertisement for the county attorney position that was posted on a job board for attorneys who specialize in representing local governments.

The board interviewed five candidates for the position on Monday; when it tried to schedule a special meeting to discuss the threatened lawsuit during a break in those interviews, Konick again threatened to seek an injunction. The special meeting was canceled.

This is a partial text of the advertisement — which, the petition alleges, was discussed by the supervisors in closed session but, as required by FOIA, there was no subsequent public-session vote to direct the county administrator to execute it.

“Rappahannock County is seeking an attorney to fill the position of County Attorney when the current attorney retires on 31 December 2016. This is a full-time position in a one-person office that may include secondary duties as Deputy County Administrator/Zoning Administrator . . . Starting salary: $80,000 to $100,000 commensurate with experience, plus benefits including Virginia Retirement System and health insurance with family supplement. Applications will be accepted until 4:00 p.m. on 5 September 2016.  For employment application, contact Rappahannock County Administrator’s Office . . .”

Konick, who brought a similar FOIA action on behalf of Sperryville resident Eric Tollefson two years ago against the school board, said Wednesday his client in the supervisors’ case, Bragg, believes there’s an “inherent conflict” with having the two positions — county attorney and zoning administrator — combined.

In answer to a reporter’s question, Konick also said “I have no desire to be zoning administrator. And I have no desire to be the attorney for the board of supervisors — or for anyone else who hasn’t asked me to be their counsel.”

Keyser said Wednesday that the supervisors hoped to interview the last of the six candidates being considered for the position soon.

“Oh, and by the way, my son-in-law is not one of the candidates,” Luke said, in response to suggestions made by a few at recent supervisor sessions, and posted over the past few months on Rappnet, a local email group list in which Bragg and Konick are frequent contributors (and which Tollefson manages).

In her draft budget for fiscal-year 2017, which began July 1, Keyser had originally proposed funding a position of deputy county administrator, a post that would include the duties of zoning administrator; that budget was reduced, including by the elimination of that position. Supervisors have discussed, in public sessions since this spring, the possibility of hiring a county attorney with zoning experience.

Patty Hardee also contributed to this report.

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