‘I’m sure he is well aware that no violation occurred’
Days after private attorney David Konick criticized the chairman of the Rappahannock County Planning Commission for failing to adhere to provisions of the Freedom of Information Act, Rappahannock County Administrator Garrey W. Curry weighed in — and in no uncertain terms.
“Mr. Konick seeks to use a fear tactic of legal action in this situation where I am fairly sure, given his acute knowledge of FOIA, he knew there were not violations of the act. I imagine that was done for the purpose of swaying public opinion, but cannot be sure of his motives,” Curry wrote in a memo to Planning chair Gary Light, whose commission is in the midst of revising the county’s comprehensive plan.
“Mr. Konick titled his email ‘Planning Commission FOIA Violations’ yet I’m sure he is well aware that no violation occurred and he is trying to color your decisions as being unlawful whether he knows them to be lawful or not,” the administrator stated.
Konick, who filed two earlier lawsuits against the county government surrounding alleged FOIA violations, wrote in an email to Light: “Hopefully, a word to the wise will be sufficient, and you won’t be attacked in the local news-rag of ‘sliding under FOIA’ because in fact, you didn’t slide under anything, you violated it.”
Konick charged that Light at two recent Planning meetings failed to follow two FOIA provisions, one requiring that when a particular meeting’s materials are furnished to the board they shall simultaneously be made available for public inspection.
“You failed to do this at the Commission’s last work session. The materials you handed out at the start of the meeting were not made available for public inspection until after the meeting was over,” the lawyer told Light via email.
Curry however, as the county’s and Planning Commission’s FOIA officer, informs Light: “I was at the meeting on April 10, 2019 and in addition to providing the document to the Planning Commissioners you also provided two copies to those in attendance at the meeting who reviewed the document while the Planning Commissioners were reviewing it.
“The code section states very clearly, ‘At least one copy of the proposed agenda and all agenda packets and, unless exempt, all materials furnished to members of a public body for a meeting shall be made available for public inspection at the same time such documents are furnished to the members of the public body.’ By providing two copies to the public at the same time as the public body, your action met the requirements of FOIA. The FOIA council opined on this matter in the past and were very clearly aligned with the singular ‘one copy’ requirement.”
Konick went so far as to opine that the FOIA violations he alleged were “not only rude and inconsiderate to your fellow Commissioners and the public, it is [sic] indicates a lack of respect for the citizens who are interested in the Comp Plan and/or apparent contempt for Principle 9 of the Rappahannock Comprehensive plan” encouraging citizen involvement in the planning process.
The lawyer suggested from the public’s viewpoint “it appears many of your actions is [sic] intended to stifle public comment and participation, not to encourage or promote it, starting with your arbitrary and capricious ‘three minute’ rule on public comment at meetings, and your failure to provide the public, via board dox or otherwise, of draft documents and other materials that are provided to or circulated among the members prior to the meetings.”
Secondly, Konick informed Light that at the regular Planning Commission meeting last week “you seemed unaware that all public bodies must keep minutes of all their meetings. The [Virginia] Code specifically provides that ‘meetings’ includes work sessions.”
The lawyer warned Light “there are civil penalties” for violating FOIA, “not to mention paying the cost of the other side’s attorney’s fees.”
To which Curry responds: “While there was apparently a discussion about whether notes taken from the work session would be termed ‘minutes’ or something else, the fact is that all recent regular meetings and work sessions have resulted in minutes being drafted and adopted and I understand that same process will be followed for the April 10, 2019 work session after discussion about the topic at your regular meeting.
“There is no deadline identified in FOIA before which minutes must be created, thus there is no violation of FOIA,” Curry states.
Furthermore, the administrator says of Konick’s suggestion that the lack of public comment period was not appropriate: “The decision of what is on any agenda of the Planning Commission is at the discretion of the majority of planning commissioners attending a given meeting when they vote to adopt the agenda. FOIA does not speak to public comment.”
Light informed the Rappahannock News this week, “I very much appreciate and share Mr. Konnick’s interest in an open and transparent planning process; and I certainly support the broadest possible public participation that will allow the Planning Commission to complete its important work in a timely manner.
“In fact the material that I distributed at the work session reflect my effort to summarize and itemize all of the issues from public input we have received to date and to provide a range of options for the Commission to consider as we decide how to move forward,” he said.
“While I regret that there were not sufficient hard copies of the materials for everyone in attendance, there were indeed extra copies that were made available to the public as stipulated under FOIA. The materials have also been posted to BoardDocs.”