Virginia Supreme Court reverses Bragg ruling

FOIA suit sent back to lower court Attorney Konick: ‘Codswallop’ put to rest once and for all

In the case of Marian Bragg vs the Board of Supervisors, the Virginia Supreme Court on May 16 ruled to reverse the May 2017 decision of Alfred D. Swersky, a substitute judge in Rappahannock’s 20th Judicial Circuit, and remand the case back to Rappahannock County Circuit Court.

Bragg’s original petition, filed in 2017 in Rappahannock County Circuit Court, declared that certain actions taken by the BOS violated Virginia’s Freedom of Information Act during the closed portion of several supervisor meetings in the summer and fall of 2016. Swersky, denied Bragg’s petition to en-

force FOIA, finding that certain procedural aspects of the complaint had not been met.

In the introduction to its opinion the high court describes the reason for Bragg’s appeal: “Marian M. Bragg filed an amended petition against the Rappahannock County Board of Supervisors and its individual members, alleging that the Board ‘engaged in a pattern of systematically violating the open meeting requirements of FOIA.’

“The alleged violations stemmed from five closed meetings, which the Board allegedly held for the purpose of discussing, among other things, how it would replace the outgoing County Attorney. Bragg alleged, ‘on information and belief,’ that the Board violated FOIA because it improperly discussed ‘public business matters’ during the closed meetings and then, after the meetings, certified that the discussions were exempt from the FOIA open meeting requirements.

“In her petition, Bragg asserted that Board member Ronald L. Frazier acknowledged the Board improperly discussed certain public business matters during the closed meetings. Frazier’s full acknowledgment was notarized and filed as an exhibit to Bragg’s petition.”

Bragg also filed an affidavit swearing that the allegations were true and correct to the extent that she was in a position to know, as the meetings had been closed.

The BOS responded to the petition by asking the circuit court to dismiss the petition, which Swersky granted on March 15, 2017 and subsequently reaffirmed, stating that “there [was] a procedural defect in the initiation of the proceedings because the petition was not supported ‘by an affidavit showing good cause.’”

In reversing Swersky’s opinion, the Supreme Court noted these instances in which the lower court erred:

➤ By not affording Bragg’s allegations “a presumption of truth.”

➤ By “erroneously construing the code requirement that a FOIA enforcement petition be supported by an ‘affidavit showing good cause’ by refusing to consider the Board member’s post-meeting ‘Acknowledgment,’ by rejecting Bragg’s affidavit in support of her Amended Petition and by construing [the code] in a manner so narrow and so restrictive that it effectively deprived Bragg of her statutory rights and of any remedy for alleged vio- lations [of] the Freedom of Information Act’s open meeting requirements expressly provided for by the General Assembly.

➤ By granting the BOS Motion for Summary Judgment and Dismissal and “by dismissing Bragg’s Amended Petition on the grounds Bragg’s ‘good cause’ affidavit did not contain the actual word ‘swear’ even though the Affidavit contained the formulation that ‘upon being duly sworn, Petitioner stated, under oath.’”

➤ By ignoring the policy provisions in the FOIA regs in granting the Motion for Summary Judgment and Dismissal “and ignoring the provision of [the code] that ‘a single instance of a denial’ of Bragg’s FOIA rights and privileges is sufficient to invoke the remedies provided by FOIA, misconstruing the requirements of [the code] and by failing to address Bragg’s allegations 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.

➤ By ignoring or failing to address Bragg’s allegations relating to the Board’s alleged procedural violations of [the code] with respect to its failure properly to identify the subject matter, purpose and state the specific exemption applicable to each agenda item to be discussed in the closed sessions.

Bragg’s attorney David Konick had argued before the Virginia Supreme Court on April 19. Local observers were surprised by the swiftness of the decision, expecting a ruling later in the summer.

In an interview, Rappahannock County Commonwealth’s Attorney Art Goff explained that the merits of the case have yet to be heard in court and that Bragg’s appeal was on a procedural point.

In an email to this newspaper, Konick commented: “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, all the while engaging in a vicious PR campaign attacking my client and me by publicly calling us ‘nuts,’ ‘quacks,’ and ‘cranks,’ castigating Supervisor Ron Frazier, and calling this lawsuit ‘frivolous.’ The Supreme Court in its righteous might has put all of that codswallop to rest once and for all.”

Konick said this is the Supreme Court’s first decision in an appeal from the Circuit Court of Rappahannock County in almost a quarter of a century, since 1995.

A new court date in Rappahannock has not yet been set.