Supervisor Frazier petitions to reassign potential blame
Let’s face it. If Circuit Court Judge Jeffrey W. Parker is confused about the two lawsuits against the county’s Board of Supervisors, known as Bragg 1 and Bragg 2, is there any hope for the rest of the community?
Gid Brown Hollow resident Marian Bragg sued the BOS in 2016 (Bragg 1) and in 2017 (Bragg 2), both alleging that the supervisors violated Virginia’s Freedom of Information Act (FOIA) on several occasions in different ways.
Bragg 1 alleges violations of public notification before the supervisors went into closed session. Bragg 2 alleges that the board did not properly advertise and consider candidates for the county administrator in the fall of 2017. Former interim County Administrator Brenda Garton is also a named party in Bragg2.
To be fair, as Parker pointed out in court July 20, he is new to the cases, having taken them over after Alfred D. Swersky, a substitute judge in Rappahannock’s 20th Judicial Circuit, retired before deciding on outstanding motions in Bragg 1.
In the meantime, on March 15, 2017 Swersky denied the petition in Bragg 1 for a declaratory judgment and enforcement of FOIA by the county’s Board of Supervisors, finding that certain procedural aspects of the complaint had not been met.
Bragg’s attorney, Konick, appealed to the Virginia Supreme Court, which heard the appeal in April and reversed Swersky’s ruling in an order issued in May.
Shortly thereafter Konick filed a motion to consolidate the two cases and add Commonwealth’s Attorney Art Goff to Bragg 2 as a party to the action.
“There is so much the court has to absorb,” Parker told Goff and David Konick, Bragg’s attorney for both suits. “I need to acquaint myself with this rather voluminous file.”
The conversation took place after Jackson supervisor, Ron Frazier, a respondent in both suits, represented himself before Parker to argue a cross-claim action against Garton in Bragg 2. In that cross-claim, filed on February 12, Frazier states that Garton was “the designated FOIA officer at the time of the alleged violations and was responsible for meeting notices.” (Garton filed a demurrer February 23 responding to Frazier’s cross-claim.)
Therefore, Frazier argued, “To the extent that the county determines that FOIA was violated and that the violations were knowing and willful, any civil penalty imposed on me as an individual shall be imposed on [Garton]” and that if Bragg prevails, Garton should pay all attorney fee and costs.
But, said Parker, “There is no allegation of [Garton’s] willfulness in the pleading.” Instead, he said, “You’re suggesting the failure to comply was inadvertent, therefore it couldn’t be willful.”
Konick, sitting at the lawyer’s table, although Frazier was representing himself, tried to interrupt several times to make Frazier’s case. Attorney Robert Mitchell, representing the county in Bragg 2 objected and Parker sustained the objection.
Parker sustained Garton’s demurrer on civil penalties, but gave Frazier 21 days to amend his claim, “if you can.” Parker also sustained the demurrer on the costs and fees without prejudice, meaning Frazier could replea the claim if he could establish a basis for it.
Konick then asked the court to revisit the outstanding issues in Bragg 1 and seemed ready to argue the issues on the spot. However, Goff objected saying that this discussion had not been publicly noticed on the docket and should be scheduled for later.
Parker asked Konick and Goff to prepare a summary of the issues in Bragg 1. “Otherwise, I have to go through the file,” he said. “And the question of consolidation has to be decided.”
Goff and Konick agreed to deliver the summary in September.
Maybe that will clear things up.