FOIA action filed but delayed, supervisors act on litigation, zoning in another emotional monthly session
At their regular October session, Rappahannock County’s supervisors took four hours Monday afternoon to deal with the county’s business. This included adopting several measures meant to defend the board, its elected members and county staff in court. This also included hearing an impromptu outpouring of support for the supervisors from a dozen citizens among an initially packed courtroom crowd.
The crowd, which reached about 40 at its peak — and dwindled steadily to fewer than 10 as the board’s business took it away from the lately controversial subject of its own transparency — did not include either plaintiff Marian Bragg of Sperryville or her attorney, David Konick, who filed a suit last Thursday on Bragg’s behalf alleging repeated Freedom of Information Act (FOIA) violations by the board itself and four of its members.
Unlike his fellow board members, Jackson district supervisor Ron Frazier was not named as a respondent in Bragg’s circuit court petition, which was scheduled for a hearing this morning (Thursday, Oct. 6) but has since been postponed to a date yet to be set. (The delay came at the request of Konick, who said Wednesday it was necessary to meet notification rules after he revised the petition to remove Frazier’s name — this because Frazier had signed an “acknowledgement,” offered by Konick to all the board members, that his and the board’s behavior had indeed violated FOIA.)
Public comment came near the start of the board’s three-hour session, which was followed by a one-hour closed session, during which supervisors said they’d discuss, among other things, the pending litigation with County Attorney Peter Luke and Commonwealth’s Attorney Art Goff. (The board had, during the public session, just voted 4-0 — Frazier abstained — to hire Goff, one of five candidates interviewed as possible replacements for Luke after he retires Dec. 31, on an hourly basis to act temporarily as Luke’s deputy).
The comments were generally supportive of the board, except for those of Wakefield district resident Tim Pagano, who read from prepared remarks in which he objected strenuously to two resolutions on the board’s Monday agenda, one to to create a legal-defense budget appropriation and the other to clarify that legal advice given by the county attorney during the board’s closed sessions was covered by attorney-client privilege — Luke pointing out later that the client being the board itself, no one member can decide to violate the privilege. Pagano referred to the latter resolution as a “gag order.”
He also said, “If you, as my representatives, can’t keep the FOIA regulations straight and abide by them, then please resign now! I personally don’t need you, and I will not be saddled with covering the costs you incur for infractions.”
A succession of others stood to express other opinions, in a few cases no less angrily.
Said Audrey Regnery of Hampton district: “Knowing that the budget is already popping at the seams and the county has a huge number of places that are in need of support . . . and in normal world, that is where my tax dollars should go . . . However, we all know that this frivolous lawsuit is exactly that — a money pit for our tax dollars. All of this to appease a person who thinks that everyone in town and county government is corrupt except for him. If this were not so sad, it would be laughable . . . .
“Two things will happen,” Regnery said. “The money that will be paid out to lawyers to fight this suit probably from the county budget, putting much-needed services on hold, and second, the taxes will have to be increased to pay for the lawsuit. I don’t know about you but I’m tired of being collateral damage for Mr. Konick’s anger.”
Regnery suggested the supervisors file a grievance against Konick, and “put an end to Mr. Konick’s world of terror.” There was significant applause as Regnery sat back down.
Similar remarks — or those at least supportive of the board’s collective character, and characterizing the lawsuit as either “frivolous” or “ridiculous” — were made by Lynn Sullivan, Alex Sharp, Henry Gorfein, Martin Woodard and former longtime circuit court clerk Diane Bruce, who said she also supported the “legal defense fund” appropriation in particular, and Luke’s work in general.
“I worked with most of you, and personally sat through almost every executive session that this board has conducted in the past 33 years, and I can honestly say that I cannot think of a single illegal action that you took in executive session. Mr. Luke was always extremely careful about FOIA provisions. He sent those FOIA provisions to all the constitutional officers. . . . I can uncategorically testify that I never knew a single one of you to have or to vote on anything that could’ve been narrowly construed as a personal agenda. We were all well informed by our county attorney. Mr. Luke has provided outstanding legal counsel to this county for years, and he is dedicated, thorough and brilliant.
“Our citizens,” she said, “especially the newer ones, who do not recall all the years of good leadership that have made Rappahannock County the place we all want to live, should get to know Mr. Luke.”
“I think you do a thankless job,” said school board member Aline Johnson of Sperryville to the board, “and getting more thankless every day, seems to be. . . .”
Johnson recalled a longtime supervisor from her district, now passed on, and noted: “I always said, ‘I disagree with that man more than anybody I’ve ever had to deal with.’ But never, never were we disagreeable. . . . I think there hasn’t been much respect shown here — whether people like what you do or don’t like what you do, they need to have respect for you.”
Konick, reached by phone Wednesday as he retrieved a boat from the tidal threats of Hurricane Matthew on the Delaware coast, said he was “puzzled by the statements of people who are not lawyers, and many of whom have relationships that call into question their own objectivity, who are attacking me and my client personally with these venomous remarks — when all we are doing is asking the judge, or the court, to review what was done and whether it was in compliance with the law.”
Bragg’s suit claims that the supervisors violated FOIA by discussing various matters relating to the search for a replacement for Luke 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.)
The board agreed 4-1 (with Frazier dissenting) later to advertise a public hearing at its November meeting on the proposed additional appropriation of $100,000 for the legal defense of the county’s elected and appointed officials, with Piedmont Supervisors Mike Biniek, Hampton district’s John Lesinski and Stonewall-Hawthorne district’s Chris Parrish all expressing support, and pointing out that most other jurisdictions in Virginia have similar funds.
The board also agreed, by the same vote and with the same dissenter, to hold a public hearing on additional appropriations of about $327,000, characterized by County Administrator Debbie Keyser as precautionary measures, not necessarily monies to be expended if not needed (the largest chunk of which is $200,000 for social services programs required by the state).
The board also voted 4-1 — with Lesinski voting no, saying he wasn’t against the idea but wanted the planning commission to at least vet the site — to accept the gift of a small piece of land at Thornton River Orchard on U.S. 211 just east of the Shenandoah National Park, to be the location of a monument to the Rappahannock families who were displaced in the early 20th century by the creation of the national park.
Blue Ridge Heritage Project director Missy Sutton, accompanied by Sperryville attorney Bill Fletcher (whose private foundation will pay for the construction of a small stone chimney, a plaque honoring the families and three split-wood benches), told the supervisors that minimal maintenance will be required of the site, which the Heritage Project originally thought could be temporarily located at the Visitors Center — until Fletcher and landowner Russell Jenkins agreed to provide the new site and costs.
The board agreed informally to move forward with zoning-ordinance changes after a long, and long-delayed, discussion near the end of Monday’s session of zoning enforcement practices — changes worked out by Keyser and county building official Richie Burke following a series of complaints about recent “interpretations” of the zoning ordinance and vetted by the the planning commission at a four-hour special meeting last week.
The changes return now to the planning commission to be worked into zoning ordinance amendments, and following the commission’s public hearing, will eventually come back to the supervisors, who’ll hold their own public hearing.
In closed session, the board discussed the pending Bragg litigation but also a matter that’s appeared on the agenda of the board’s last two closed sessions mysteriously titled “improvements at the landfill.”
Apparently, according to Keyser, the improvements are a potential lease of approximately one acre of land to a company that would like to store equipment — vehicles and equipment — at the landfill site, which is a nearly 100-acre piece of property. The one-acre plot would be far from any residential areas, Keyser said, and the “negotiations are proving to be more complicated than we anticipated.”
The real estate broker with the interest in the lease is Colliers International; Lesinski, who works for the same company (but has no connection with the deal), has recused himself from all of the supervisors’ discussion of the potential lease, Keyser said. Luke has also recused himself, but Keyser would not say why. (Likely reason: Luke’s son Ben is an agent for Colliers.)
Asked Wednesday why the potential lease wasn’t at least mentioned before in public session, Frazier blamed it on “faulty legal advice” from Luke.
“I don’t know, lately we’re just running amok up there,” said Frazier, referring to the courthouse and his colleagues.