BOS hit with yet another lawsuit over FOIA

Just in time for the New Year, members of the Rappahannock County Board of Supervisors — Roger Welch, Chris Parrish, Ron Frazier, John Lesinski, and then-supervisor Mike Biniek — and Interim County Administrator Brenda Garton were sued for allegedly violating Virginia’s Freedom of Information Act.

Local llama farmer Marian Bragg filed her petition for declaratory judgement in Rappahannock County Circuit Court on December 28. This is her second suit against the BOS for allegedly violating FOIA. The first one — filed in March 2016 — is awaiting a hearing before the Virginia Supreme Court.

The petition alleges “knowing and willful violation” of FOIA regulations in connection with the process of hiring a county administrator.

“The Board has been in the process of hiring a new, permanent County Administrator, since the previous County Administrator resigned in June 2017,” reads the petition. “The violations of the Freedom of Information Act that are the basis for this Petition all occurred in connection with that process and after July 1, 2017 when the foregoing statutory changes became effective.”

The petition lays out the background details. On October 31, Garton issued an electronic notice of the November 6 BOS meeting with the agenda and posted both to the county’s electronic bulletin board, Boarddocs.

The agenda for the meeting “indicated there would be an ‘announcement’ of ‘a closed meeting to interview candidates’ at the November 6 meeting,” cites the petition.

“However,” it goes on to say, “notice as to this item did not disclose the date, time or place of the to-be-announced ‘closed meeting to interview candidates’ consistent with the requirements” of Virginia’s FOIA statute.

Beginning July 1, the state FOIA regulations were clarified to mandate that notices of even emergency or continued meetings must include the date, time, and place of the meeting. County Attorney Art Goff briefed the board at its May 1 meeting on the impending change to the FOIA regs.

The agenda for the November 8 meeting also indicated there would be a “continuation of the meeting to November 8th.” However, the exact time and place were not disclosed; nor were they disclosed before the 8th.

According to the board’s minutes of the meeting at 10 a.m. on the morning of November 8, the Board convened in closed session at “an undisclosed location” ostensibly for the purpose of “interviews of prospective candidates for employment” for the position of county administrator. However, the meeting was actually to negotiate the contract of of a candidate the board had already agreed to hire, Garrey W. Curry, Jr.

The meeting minutes also reflect that the board discussed other a new policy limiting the county administrator’s hiring authority. Discussion of the policy was outside the purview of the stated purpose of the closed meeting, and the topic was not exempt from FOIA rules.

At the end of a closed meeting, the individual members of the board are required to certify that only FOIA-exempt business was conducted in the meeting. In this case, every member answered “nay” when asked if only FOIA topics had been discussed.

In an email exchange between Bragg’s attorney David Konick and Alan Gerhardt, the executive director of Virginia’s FOI Advisory Council, Gerhardt calls the board’s non-certification “perplexing.”

Bragg’s petition states that, although she is on the county’s list for meeting notification, she received no notice of either of the November 8 meetings. Thus, she was unlawfully excluded from the meetings and “as a citizen of the Commonwealth and a taxpayer of Rappahannock County, was denied her rights under the Freedom of Information Act.”

In addition, the petition states that Bragg “is aggrieved in that she may or will incur additional tax liability as a taxpayer of Rappahannock County on account of the new County Administrator’s contract unlawfully approved by the Board at its November 8th meetings held in violations of law.”

Konick commented in an email on Tuesday, “The Freedom of Information Act requires each supervisor to ‘read and become familiar’ with all of its provisions within two weeks of taking office. The Board’s own minutes raise the question of whether some of them — or the County’s designated FOIA compliance Officer — have ever bothered to do either. Even after being briefed by their own County Attorney on changes to the law that became effective July 1st that require electronic and posted notices of all continued meetings, the Chairman, the Vice-Chairman and the Clerk to the Board and FOIA Officer either deliberately ignored the simple requirements of the law, or worse — some of them may have conspired to circumvent it. That is what is so disturbing — it is not rocket science.”

Brenda Garton and all of the supervisors were contacted by email or phone for statements. Garton replied by email that she did not wish to comment. Jackson district supervisor Ron Frazier replied by email, “As much as I would like to comment I do not think I should before meeting with counsel tomorrow.” John Lesinski responded to a phone message, but did not leave a comment. The other supervisors did not respond.

Asked yesterday to comment on her latest suit, Bragg issued a terse statement saying somebody “needs to hold the county accountable for repeatedly violating the law.” She then criticized the Rappahannock News for not being the “leading enforcer of FOIA violations” she alleges have taken place.

If and when a court eventually rules on allegations of FOIA violations it will be reported by this newspaper.

About Patty Hardee 294 Articles
Writer, consultant, actor, director, recovering stand-up comic, Patty covers the county’s courts and other topics of interest for Rappahannock News. She lives with her grape-growing husband Bill Freitag in Flint Hill.