Motions pertaining to two lawsuits brought against the Rappahannock County Board of Supervisors by Gid Brown Hollow resident Marian Bragg were denied Tuesday by Rappahannock Circuit Court Judge Jeffrey W. Parker.
Both cases allege that the supervisors violated Virginia’s Freedom of Information Act (FOIA) on several occasions.
The first suit, locally referred to as Bragg 1, alleges violations of public notification before the supervisors went into closed sessions to consider hiring a Rappahannock County Attorney in 2016.
Bragg 2 alleges that the board did not properly advertise and consider candidates for the Rappahannock County Administrator position in the fall of 2017. Former interim County Administrator Brenda Garton is also a named party in Bragg 2.
The first matter taken up in court Tuesday was a Motion for Leave to Consolidate the two cases. Robert Mitchell, attorney for the BOS in Bragg 2, objected to the motion.
“These are two separate cases,” Mitchell told the court, “involving two time periods and issues.”
He explained that there are “different determinations to be made in each case, and different attorneys for each case.”
Mike Brown, one of the attorneys representing the BOS in Bragg 1, agreed.
The cases, he said, involve two separate proceedings with different purposes, separate BOS meetings, and other factors.
“Consolidating [these cases],” Brown argued, “would turn this into a giant quagmire. The cases need to proceed on separate tracks. Conflating them just confuses the issue.”
Parker asked David Konick, Bragg’s attorney for both suits, what would be gained by consolidating the cases.
Konick maintained that it would lead to a speedier outcome and aid the evidence discovery process.
Parker wasn’t convinced.
In denying the motion, the judge said, “What’s persuasive to the court is that there are different [attorneys] for each case. I might feel differently if they had the same counsel. I don’t see the advantages of consolidation. The court is better served by keeping these separate.”
Parker did agree with Konick that witness depositions could be shared between the two cases.
Parker also denied a motion filed in November 2016 to Disqualify Peter H. Luke as Counsel to the BOS in Bragg 1.
At the time of the alleged FOIA violations in 2016, Luke was the county attorney and advisor to the BOS. He now serves as deputy county attorney to help County Attorney Art Goff and local attorney Mike Brown prepare for Bragg 1. (The BOS passed a resolution in August of this year extending Luke’s tenure as deputy county attorney. Under the terms of the resolution, Luke will charge $150 an hour for his time and work no more than eight hours a week).
Arguing for Luke’s disqualification, Konick on Tuesday cited an American Bar Association rule that prohibits a lawyer from being both an advocate for his client and witness in the case. Konick expressed his belief that because the BOS in 2016 “acted on the advice of counsel,” and Luke was the counsel, he would certainly be called as a witness in Bragg 1. Therefore, Konick said, Luke would be both a client advocate and a witness in the same case.
Judge Parker pushed back, saying he wasn’t so sure Luke would be called as a witness.
“Does the court have to make a decision now?” Parker asked Konick, suggesting that he would rather wait and see if the issue came up at trial.
“The court has a natural reluctance to dismiss counsel,” Parker said.
When it was his turn, Luke said, “Mr. Konick hasn’t offered any proof of his allegations or offered evidence [of a conflict under the ABA rule]. He can’t just wave a motion around and say I should be kicked off this case.”
Luke pointed out that there were seven other people in the closed BOS meetings who could be called to testify.
“How can the court determine who will be a witness before discovery?” Luke asked.
Saying that Luke “had made his case,” Parker denied the motion, “as the facts stand today.”
But he left the door open for Konick to revisit the issue at trial.
“He will be called as a witness,” Konick said.
“And I may not allow it,” Parker shot back.
In an email yesterday about the two cases, Konick wrote, “We are glad the last of these procedural ‘housekeeping’ matters are resolved so we can move forward and prepare for trial.”