Retired Circuit Court Judge Alfred D. Swersky heard arguments Wednesday morning (Jan. 17) for and against dismissal of a lawsuit by Sperryville llama farmer Marian Bragg against the Rappahannock County Board of Supervisors — and four of its five individual members — for alleged violations of Virginia’s Freedom of Information Act last summer and fall.
At the close of the hearing, Swersky said he would take the case under advisement and issue a decision “very, very quickly. I understand there are some time constraints and I will do this promptly.”
Just before ending the hearing, Swersky, a substitute judge in Rappahannock’s 20th Judicial Circuit who listened attentively but asked few questions during the one-hour session, pointedly asked former county attorney Peter Luke about two aspects of the case which Luke — who is defending the county and the supervisors along with his successor, Commonwealth’s Attorney Art Goff — had not argued.
“Let me ask you,” Swersky said to Luke. “You did not raise in any way . . . the question as to whether Mr. Frazier could properly give an affidavit once he had certified at the conclusion of the [supervisors] meeting that everything that was discussed in closed session was proper under FOIA. He certified that, and is recorded as voting for it. He later comes along and says, ‘It wasn’t so.’ You didn’t raise that.”
“I raised that in terms of the weight to be given to this affidavit,” Luke said, referring to the affidavit that Jackson district supervisor Ron Frazier submitted as part of Bragg’s suit. Frazier signed the affidavit after his name was dropped from the suit by Bragg’s attorney, David Konick; Frazier had first signed an agreement essentially admitting the supervisors had violated the FOIA law during several closed-door sessions last June through September — while they discussed, coincidentally, potential replacements for their longtime county attorney, who was planning to retire Dec. 31.
“Well, that goes to credibility, which may be a little premature,” said Swersky, referring to the fact that Wednesday’s hearing was not meant to hear evidence in the case but meant to address the defense’s demurrer and summary judgement motions (both of which essentially ask the court to invalidate the suit).
“You didn’t raise the issue, also, of how that affidavit was obtained by Mr. Konick’s letter,” Swersky went on, referring to the letter received from Konick by all the supervisors in September, though only Frazier responded to it.
“Well, I didn’t argue it but I did include it in my motion,” Luke said. “We pointed out . . . the letter that Mr. Konick sent . . . well, the affidavit [by Frazier] said, ‘I’m under no coercion or duress,’ and yet here’s a letter to him, sent by counsel, saying, ‘If you don’t agree to my demands I’m going to sue you for $22,000, individually.”
“I object, your honor,” Konick said, “that was a settlement letter . . .”
“It was not a settlement letter by any stretch of the imagination, Mr. Konick,” said Swersky, at which point he promised his speedy decision and shortly rose to head for the judge’s chambers.
Until that point, Konick had argued that Luke and Goff’s motions to dismiss sought to do so on inappropriate and/or insufficient grounds. In the case of the demurrer, argued by Goff, the defense maintained that the language of FOIA, which lists allowable exemptions from Virginia’s otherwise assumed ban on closed-door sessions, did not require a governing body to discuss an identifiable individual, as Bragg’s petition maintains. The closed-door session could also allow the supervisors to discuss specific positions, which Goff argued is what the supervisors were doing in seeking a replacement for Luke.
In the case of the motion for summary judgement, Luke argued that the petitions filed by Konick — there was a draft that was never filed but distributed along with the “agreement” letter, a petition filed after Frazier signed his agreement, and a third amended petition Swersky allowed last month — were not supported by the two affidavits filed by Bragg and Frazier. Among other faults, Luke said, Frazier’s affidavit referred to “the wrong petition,” and Bragg’s contained no sworn statements of facts but was based merely on what she believed to be true.
“It’s a complaint . . . without complaints,” Luke said.
Konick said that interpreting the law that way — requiring a member of the public who was deliberately shut out of a meeting to know first-hand what was discussed at that meeting — “would represent a bar that almost no one could get over.”
Konick argued that the defense’s “hyper-technical attacks” would contravene the specific objectives of FOIA, which he quoted several times during the session as well as in his petition, that the law itself be “liberally construed to promote increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government.”
At the same time, he argued, the law specifically says that “any exemption from public access to records or meetings shall be narrowly construed” — and a narrow interpretation of the exemptions from public access, he said, is precisely what Goff and Luke were asking the court to do.