‘My response tries to set the record straighter than you have’
A Tysons Corner attorney providing legal counsel to Rappahannock County Supervisor Ron Frazier is accusing the Rappahannock News of being “biased” against his client, says Commonwealth’s Attorney Art Goff is “caustic,” and warns the Board of Supervisors that if it refuses to pay his client’s legal bill of $19,365 for 48 hours of work the matter may be appealed to the circuit court.
Mark A. Moorstein tells the Rappahannock News that its article last week detailing a pair of invoices submitted to county taxpayers by his Fairfax law firm, Offit Kurman, “framed the story as one of legal fees rather than an unnecessary action by Art Goff to subpoena one of his own board members and clients.”
Frazier has turned to Offit Kurman for legal advice surrounding the now three-year-old Bragg 1 FOIA case (Marian M. Bragg v. Board of Supervisors), which alleges violations of public notification before the BOS went into closed session to discuss hiring a county attorney in 2016. (A Gid Brown Hollow llama farmer, who is also employed by the U.S. government, Bragg two years ago sued the county a second time [Bragg 2], alleging it did not properly advertise and consider candidates for the post of administrator).
Arguably most surprising about his hefty legal bill is that Frazier is not a party in Bragg 1. He was initially named as a defendant, but the plaintiff’s attorney, David Konick, offered individual members of the BOS an out if they admitted to the board’s violation. Frazier, who represents the Jackson district, took Konick’s deal. However, that has not precluded him from being served with two subpoenas and request for deposition by local attorneys representing the remaining BOS members, who unlike Frazier ignored Konick’s offer because they claim innocence.
“Courts will determine the legal rights — and appropriate legal fees if not negotiated — but your job is to determine the broader truth,” Moorstein admonished the News for last week’s article, one of several published since the inception of Bragg 1. “In my opinion, that broader truth [alleged by Bragg 1] is that a hastily called meeting occurred to select or review legal counsel for the county, that Mr. Frazier had doubts about the meeting, that the [Virginia] Supreme Court also had doubts and sent the case back to determine facts, that Mr. Goff acted hastily in subpoenaing Mr. Frazier for information already disclosed or for information that is protected, and that his caustic and unnecessary actions created this cost fiasco.
“So I respectfully suggest that you look deeper into Mr. Goff, not Mr. Frazier or the legal rates of our firm for representing Mr. Frazier. This matter is costing the county a lot of money — but the cost will only increase unless everyone becomes more civil,” states Moorstein, accusing the News of quoting his firm’s language “verbatim . . . as protection against the bias in your story.”
As we reported last week, Moorstein and his co-counsel representing Frazier at Offit Kurman told the county government that “[b]ecause there is an obvious and substantial conflict of interest in representation by counsel for the Board in also representing Mr. Frazier, he has had to obtain us as independent counsel.”
While this point and others made by the law firm were clearly published in last week’s article, Moorstein says this newspaper didn’t go far enough, choosing to concentrate on its $19,365 bill submitted to the county.
“My response tries to set the record straighter than you have,” says Moorstein, who has also written a Letter to the Editor this week. “It also addresses the hostility Mr. Goff has addressed to Mr. Frazier and to others (e.g. Mr. Konick, our law firm, [Virginia Supreme Court] Justice Mims). I have reviewed a number of emails between Mr. Goff and the board, between Mr. Goff and Mr. Konick, and between Mr. Goff and Mr. Frazier. In all of them, Mr. Goff exhibits an arrogance that is unbefitting a county attorney.”
The attorney says because some of the emails and statements appear to be confidential either as attorney-client — between Mr. Goff and the board members — or as settlement discussions with Konick, “I can only refer to them in limited fashion. However, you yourself are aware of open meetings and discussions in which Mr. Goff and Mr. Frazier argued, and Mr. Goff made statements, or acquiesced in them, to Mr. Frazier regarding the subpoena and further discovery, Mr. Frazier’s position questioning the FOIA litigation, and the mounting legal fees.”
Asked to provide examples, the attorney cited two exchanges between Frazier and Goff, including Nov. 10, 2018, when “Mr. Frazier asked Mr. Goff why [BOS attorney] Michael Brown subpoenaed him . . . for materials related to Bragg I, indicating to Mr. Goff that it was an outrage and that he could just have asked for the materials. Mr. Goff on November 13 . . . stated, ‘You were served with a subpoena duces tecum because we require you to answer it. You will also be served with process for me to take your deposition, in due course, wherein you will answer my questions under the penalty of perjury.’
“Obviously, this is a clear threat, and beyond insulting,” Moorstein reacts. “Mr. Goff then stated, ‘To be clear, I represent Roger Welch, John Lesinski, Chris Parrish, and Mike Biniek as individual clients. I do not represent you. You chose to reverse your certifications and to accede to Konick’s threats and were thereby removed as a party to Bragg I. You will receive communications from me regarding Bragg I only as I choose to reveal those communications to the BoS as a whole, and nothing more.’”
Secondly, the attorney calls attention to July 2018 settlement discussions with Konick on Bragg I, when “Goff stated — and I am paraphrasing to avoid any breach of the settlement confidentiality (although Mr. Goff breached it by sending it to Mr. Frazier, who Mr. Goff now claims was not his client) — that personally he never appreciated opposing counsel ‘regulating, questioning, meddling or interfering with the representation’ of his clients, which clearly meant to include Mr. Frazier.
“This is true irony since Mr. Goff disavowed representing Mr. Frazier. Such a comment clearly raises the threat of ethical sanctions against Mr. Konick, and by implication Mr. Frazier, and creates the impression that Mr. Frazier had somehow acted against the interests of the Board. Mr. Konick replied that he didn’t know why Mr. Goff continued to be so ‘unprofessionally rude and insulting’ to him and that it was ‘a disservice to your client and to the profession.’”
Moorstein also recalls further emails when Konick suggested Goff review a video Justice Bill Mims alluded to at the Supreme Court, when “Mr. Goff disparaged not only Mr. Konick, but Justice Mims, referring to him as ‘Mims’ and stating (intentionally paraphrased): What consequence ‘is there to Mims watching TV?’ Is he already predisposed to my client for some reason contained in the videos?”
Reached this week, Goff explains, as he did in last week’s newspaper article, that “Mr. Frazier is a witness in the case and it is necessary that a SDT [subpoena duces tecum] be issued to him and his deposition taken. This is not an ‘action’ against Frazier. Frazier chose to get out of the case and accede to Konick’s threats of suit. He provided the ‘acknowledgement’ that Bragg used to get into court.
“Frazier is not an individual client as are the other members of the Board, because he is not a named defendant in Bragg I,” the county attorney continues. “If Mr. Moorstein’s argument is correct, a supervisor could simply hire his own attorney at public expense anytime he deemed it necessary to carry out his duties. If you follow the argument through to the end, a supervisor could hire a lawyer to sue the Board or any member thereof, and claim that the County had to pay that lawyer’s fees because it was connected to the performance of the supervisor’s official duties — a scenario the CoV [Code of Virginia] does not allow.”
Finally, Goff educates that a county attorney represents the BOS and any member of the Board “when he is a defendant in a suit against him. The individual members are never individual clients unless sued individually — they are clients only corporately. That is a concept overlooked or misunderstood by Mr. Moorstein.
“Mr. Moorstein characterizes a disagreement about the law and the scope of my statutory duty to represent individual board members a ‘conflict of interest.’ He needs to acquaint himself better with the law. There is no conflict of interest here, in the legal sense. What we have here is a Board member who calls me incompetent and insubordinate, and Mr. Moorstein therefore insists on more ‘civility.’ So in pursuit of his ideal of civility, he urges you to look into me for needlessly causing this situation. I suppose irony is a stranger to these people.”