FOIA suit against supervisors headed into 2017

Rappahannock County’s supervisors, who’ve been spending three to six hours at a stretch in the county courthouse since early summer for their own public meetings, were free to go Monday after just 18 minutes.

The supervisors were merely present in the courtroom, four of the five being respondents in a circuit court suit filed against the board in September by attorney David Konick on behalf of Sperryville llama farmer Marian Bragg. Bragg claims the board repeatedly violated Virginia’s Freedom of Information Act in its closed-door discussions (and alleged decisions) on hiring a replacement for county attorney Peter Luke.

The active players on Monday turned out to be Luke, and his soon-to-be replacement as county attorney, Commonwealth’s Attorney Art Goff, and Konick, all seated at the front table with Bragg, facing retired 18th Judicial Circuit Court Judge Alfred D. Swersky, the substitute judge who also heard initial arguments in the civil case on Oct. 6.

Swersky’s actions this session, though swift, postponed justice until, at the earliest, 10 a.m. Jan. 18, when the court will next hear further arguments.

The judge’s postponement of at least 31 days was made necessary by his tandem decision to accept Konick’s motion to amend the suit’s original petition — despite Luke’s argument against it, during which he complained that Konick’s petition was “a moving target,” noting that he and Goff had spent a significant number of hours preparing to argue points in the original petition which are now removed.

[Invoices submitted to the county by Goff and Luke, from the start of the case through last week, showed this week that the cost of attorney fees for the Bragg suit litigation so far is $15,742, with 59.2 hours logged by Luke and 45.75 by Goff on the case. Through the end of the year, the county is paying each attorney $150 an hour.]

“Most of the changes [to the petition] are simply to do what the respondent wanted,” Konick told the judge. He was referring to removing portions of the petition which claimed the supervisors had violated the state’s procurement act, and the petition’s request for declaratory judgement, both of which the county had contested. Instead, the petition now focuses on the board’s alleged FOIA violations, which Konick said reveals a “pattern of nonobservance.”

Luke argued that, if the amendments were to be allowed, that the defense’s motion for sanctions against Konick “should not be lost in the shuffle.”

Swersky agreed to that, allowing the motion for sanctions to remain alive, and also denied two motions filed by Konick — one to strike a brief that Luke and Goff had submitted, in part because it was more than 20 pages long, and another to force the disqualification of Luke himself as the attorney for the respondents, since (as Konick argued) it would be likely Luke’s testimony would be required in the case.

Swersky also said the court would accept “no further amendments” to the petition.

Konick asked Swersky if he wanted him to type up an order, based on the judge’s decisions, something attorneys are frequently expected to do for the court.

“I’m afraid you won’t be able to agree even on simple matters,” Swersky said, looking from Konick to Luke and Goff. He asked each side to submit their own version of the court’s order, and said he would handle the final draft himself.

Roger Piantadosi
About Roger Piantadosi 544 Articles
Former Rappahannock News editor Roger Piantadosi is a writer and works on web and video projects for Rappahannock Media and his own Synergist Media company. Before joining the News in 2009, he was a staff writer, editor and web developer at The Washington Post for almost 30 years.