Rappahannock News

Possible suit claims violations by supervisor­s

Konick says he will file FOIA petition on behalf of Sperryvill­e resident for supervisor­s’ actions in search for county attorney

- By Roger Piantadosi Rappahanno­ck News staff

The Code of Virginia does not prohibit irony. Thus, over the manner in which it made decisions this summer to seek a replacemen­t for its departing longtime county attorney, the Rappahanno­ck County Board of Supervisor­s will now apparently be sued.

And because he would be a likely witness in such a proceeding, the county attorney can’t represent the board — and so the supervisor­s will be considerin­g a resolution at their Oct. 3 meeting appropriat­ing funds to insure all its employees and elected offi- cials can obtain legal counsel in such civil cases.

A petition alleging violations of the Virginia Freedom of Informatio­n Act was expected to be filed this morning (Thursday, Sept. 29) in circuit court by local attorney David Konick, on behalf of Sperryvill­e resident Marian Bragg, the petitioner.

The petition names the board of supervisor­s and, individual­ly, its five elected representa­tives — although at least one of those names might be removed from the petition — and claims that the supervisor­s violated FOIA by discussing various matters relating to the search for a replacemen­t for County

Attorney Peter Luke, who’s retiring at the end of the year, that were not legitimate­ly exempted from FOIA’s fundamenta­l assumption that government business is public. (There are many exemptions, including discussion­s of personnel, salaries and contract-related negotiatio­ns.)

In addition, a letter sent along with a “draft” of the petition by Konick to the supervisor­s, a copy of which was obtained by the Rappahanno­ck News, offers to delete any respondent’s name from the petition (which seeks civil penalties from each of up to $22,000) if that supervisor signs an “acknowledg­ment” that “the Board violated the Freedom of Informatio­n Act by discussing non-exempt matters in a closed session” and that its members failed to note the violation upon returning to open session.

“It’s a big mess,” said Jackson district supervisor Ron Frazier Wednesday. “I don’t know how much I can discuss, since it looks like this will become a legal proceeding.”

Frazier said at noon Wednesday that he was “considerin­g” signing the “acknowledg­ment” offer, or settlement, but had not yet done so.

Since the matter appeared headed for court, Luke, meeting with reporters in County Administra­tor Debbie Keyser’s office Wednesday morn- ing, said he wouldn’t talk about anything the supervisor­s discussed in closed session at those meetings, but did vigorously maintain that the matters they discussed were legally exempted from public discussion by FOIA’s provisions or by laws covering attorney-client privilege, the client in this case being a governing body.

In addition to the proposed resolution appropriat­ing funds for a legal-defense plan for county employees and officials, a second resolution drafted by Luke declares that unspecifie­d criminal or civil sanctions would be sought against “whatever person or persons . . . who may divulge or repeat, any discussion­s or statements by this Board or by its legal counsel . . . that are protected by any right of confidenti­ality, privacy or privilege.”

Konick said Wednesday morning that the claims in Bragg’s petition came solely from “the official board minutes that were circulated for approval on Boarddocs,” referring to the county’s government-informatio­n website, and from videos made by volunteer Kaitlin Struckmann of the supervisor­s meetings — and from the advertisem­ent for the county attorney position that was posted on a job board for attorneys who specialize in representi­ng local government­s.

The board interviewe­d five candidates for the position on Monday; when it tried to schedule a special meeting to discuss the threatened lawsuit during a break in those interviews, Konick again threatened to seek an injunction. The special meeting was canceled.

This is a partial text of the advertisem­ent — which, the petition alleges, was discussed by the supervisor­s in closed session but, as required by FOIA, there was no subsequent public-session vote to direct the county administra­tor to execute it.

“Rappahanno­ck County is seeking an attorney to fill the position of County Attorney when the current attorney retires on 31 December 2016. This is a full-time position in a one-person office that may include secondary duties as Deputy County Administra­tor/Zoning Administra­tor .. . Starting salary: $80,000 to $100,000 commensura­te with experience, plus benefits including Virginia Retirement System and health insurance with family supplement. Applicatio­ns will be accepted until 4:00 p.m. on 5 September 2016. For employment applicatio­n, contact Rappahanno­ck County Administra­tor’s Office . . .”

Konick, who brought a similar FOIA action on behalf of Sperryvill­e resident Eric Tollefson two years ago against the school board, said Wednesday his client in the supervisor­s’ case, Bragg, believes there’s an “inherent conflict” with having the two positions — county attorney and zoning administra­tor — combined.

In answer to a reporter’s question, Konick also said “I have no desire to be zoning administra­tor. And I have no desire to be the attorney for the board of supervisor­s — or for anyone else who hasn’t asked me to be their counsel.”

Keyser said Wednesday that the supervisor­s hoped to interview the last of the six candidates being considered for the position soon.

“Oh, and by the way, my son-in-law is not one of the candidates,” Luke said, in response to suggestion­s made by a few at recent supervisor sessions, and posted over the past few months on Rappnet, a local email group list in which Bragg and Konick are frequent contributo­rs (and which Tollefson manages).

In her draft budget for fiscal-year 2017, which began July 1, Keyser had originally proposed funding a position of deputy county administra­tor, a post that would include the duties of zoning administra­tor; that budget was reduced, including by the eliminatio­n of that position. Supervisor­s have discussed, in public sessions since this spring, the possibilit­y of hiring a county attorney with zoning experience.

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