Awaiting a trial date, Bragg vs Board of Supervisors is ‘running the meter’

‘And that costs [taxpayer] money’

As explained by Mike Brown, independent co-counsel to the Rappahannock County Board of Supervisors when providing an update last week on the first of two lawsuits filed by local resident Marian Bragg against the BOS, “it’s running the meter. And that costs money.”

A lot of money — six figures, potentially — for the first of Bragg’s two cases against four members of the BOS, three of whom remain in office. And Rappahannock taxpayers already are footing the bill.

A U.S. government employee and llama farmer, who moved her operation to Gid Brown Hollow after experiencing problems with the Culpeper County government, Bragg is suing because she contends the supervisors, without public notice and therefore in violation of Virginia’s Freedom of Information Act, went into closed session to discuss the hiring of a new county attorney in 2016. Bragg is being represented by Rappahannock attorney David Konick.

Apart from Brown, a practicing attorney at Walker Jones, Peter H. Luke, then-county attorney at the time of the alleged FOIA violations is also assisting Rappahannock County Commonwealth’s Attorney Art Goff in defending Roger Welch (supervisor chairman), Chris Parrish (supervisor vice chair), John Lesinski, and former supervisor Mike Biniek.

Brown, who is billing the county at the rate of $175 per hour — Luke is being paid $150 per hour, not to exceed eight hours per week — explained that the litigation has now moved into its “discovery phase,” having recently disposed of outstanding motions and procedural issues.

Discovery requests have been made to Bragg, he revealed, and similar discovery requests will “come our way” from Konick, with response deadlines not for several more weeks. No trial date has been set. The litigation is moving by “its own engine,” Brown told the BOS, with both sides continuing to file motions and pleadings.

“That’s got to happen at its own pace,” he said. “It had been sitting and stalled for a long time work as it worked its way through the appeals process,” but now that “preliminary matters have been disposed of it’s rolling down the track.”

The discovery process Brown said, “has some complexity to it. It can take several months.”

Konick, for instance, will take depositions of several BOS members and other pertinent witnesses, and “we’re certainly going to want to take Ms. Bragg’s deposition, and maybe others. That’s the next phase after this preliminary discovery phase.”

All of which raises the stakes for taxpayers.

“It bears pointing out . . . it’s running the meter,” Brown told the supervisors. “And that costs money. So if there is any kind of consensus among board members or a desire to engage earnestly in settlement discussions the sooner the better.”

The attorney alluded to a “preliminary communication” with Konick several months ago surrounding a proposed settlement, which went nowhere. Brown told the BOS last week that he would be happy meet with them in “closed discussion” if they wished to discuss any settlement with Bragg.

Konick, we are told, met and discussed in detail a comprehensive settlement of both FOIA cases — Bragg I and Bragg II — with Brown on August 14, with the understanding that if the petitioner “substantially prevails” in the case she is entitled to an award of attorney’s fees and costs.

Konick reportedly gave Brown an approximate total of what those fees and costs were as of August 2018, and said if the county would agree to other conditions in Bragg’s settlement proposal that number was negotiable. In other words, Bragg would consider accepting something less than the full amount.

The supervisors did not officially reply to Bragg’s offer.

“We’re of the opinion that we did nothing wrong,” Parrish stated for the record at last week’s meeting, suggesting if anything the lawsuit should be dropped — not settled. Short of that, “I guess that’s for the judge to decide at this point.”

His words were echoed by Lesinski: “I didn’t do anything wrong. I’m innocent of all wrongdoing that I can see,” the supervisor said. “I’m looking forward to this thing being adjudicated . . . the sooner the better. I’ve always maintained that we didn’t do anything wrong, but apparently the only way we’re going get to the bottom of this is have the judge make that decision.”

On May 16, the Virginia Supreme Court reversed a decision by Judge Alfred D. Swersky, a substitute judge for Rappahannock’s 20th Judicial Circuit, who ruled that certain procedural aspects of Bragg’s complaint had not been met. But the state’s highest court remanded the case back to Rappahannock County Circuit Court.

As argued by Bragg, the Supreme Court stated in part that “members of the public had been physically excluded from the meetings and that the Board’s votes to convene closed sessions were not taken during the public sessions of the Board meetings described in the Amended Petition.”

But Goff told this newspaper that the merits of the specific case against the BOS have yet to be heard in court, adding that the appeal to Richmond was on a procedural point.

Replied Konick: “Instead of admitting they made some mistakes, three members of the Board have unnecessarily cost Rappahannock taxpayers tens of thousands of dollars because they adamantly refuse to acknowledge they violated the Freedom of Information Act and got bad legal advice — not only about the closed meetings, but also about their litigation strategy of trying to squelch Marian Bragg’s courageous effort to hold them accountable for their contempt for the Virginia law they swore to uphold . . . The Supreme Court in its righteous might has put all of that codswallop to rest once and for all.”

Bragg, who moved her Freestate Llamas farm to Rappahannock from Culpeper County, did not respond to this newspaper’s request last week to comment on the case.

“As many of you know, we were victims of gun violence in Culpeper County, a backward county with larger problems,” the Freestate Llamas website explains of the move to Rappahannock. “The transition was difficult, costly, and took nearly 4 years, but we are finally settled in beautiful Rappahannock County, and our good sheriff has promised our llamas will not be harmed here and she will not tolerate the harassment we, and our livestock, were subjected to in horrid Culpeper County.”

— Patty Hardee contributed to this report

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John McCaslin is the editor of the Rappahannock News. Email him at