Did Bragg have legal right to bring suit against county?
▶ Board of Supervisors attorney indicates ‘standing’ may be issue ▶ In three-and-a-half years since she filed her first petition, Bragg case goes to trial
As Gid Brown Hollow resident Marian Bragg’s first lawsuit against Rappahannock County’s Board of Supervisors goes to trial this morning, the issue of her right to even bring such a claim could be in question. The concept is called “standing.”
Paragraph 1 of Bragg’s Sept. 29, 2016 Petition for Declaratory Judgement and Enforcement of Virginia Freedom of Information Act asserts, “Petitioner [Bragg] is a resident and taxpayer of
Rappahannock County, Virginia and a citizen of the Commonwealth of Virginia and as such has standing to enforce the Virginia Freedom of information Act, Virginia Code §§2.2-3700 et seq. (hereinafter "Freedom of information Act" or "FOIA").
But according to Mike Brown, a local attorney assisting County Attorney Art Goff with the case, the issue could be in question.
“Petitioner’s [Bragg’s] standing is
a subject that may come up at trial,” Brown wrote in response to questions from the Rappahannock News, declining to provide specifics.
Meanwhile, in a separate development, Brown confirmed that both parties tried to settle the case out of court, but no agreement was reached.
Marian Bragg v The Board of Supervisors of Rappahannock County is known as Bragg 1 to distinguish it from a second lawsuit the woman filed in 2017, that one charging the supervisors with violating FOIA when they hired a new county administrator.
Bragg 1 named as defendants the board of supervisors and, individually, its then-five elected representatives: Chair Roger Welch (Wakefield), Chris Parrish (Stonewall-Hawthorne), John Lesinski (Hampton), Mike Biniek (Piedmont), and Ron Frazier (Jackson).
The petition claims that the supervisors violated FOIA by discussing various matters relating to the search for a replacement for then-Rappahannock County Attorney Peter Luke. Bragg alleges the matters discussed 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.)
Luke retired at the close of 2016 and the BOS named Commonwealth’s Attorney Art Goff as his successor.
In addition, a letter sent along with a “draft” of the petition by Bragg’s private attorney, David Konick, to the supervisors offered to delete any respondent’s name from the petition — which seeks civil penalties from each of up to $22,000 — if that supervisor signed 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.
Only Ron Frazier agreed to Konick’s offer and he was subsequently removed as a named party in the petition. Still, though no longer a party to the suit, Frazier sought outside counsel and ultimately sued the BOS to cover his legal expenses.
Goff pointed out that he could not represent Frazier as he was no longer a named party to the suit.
Denials and reversals
On March 15, 2017, Judge Alfred D. Swersky, a substitute judge in Rappahannock’s
20th Judicial Circuit, issued an opinion letter dismissing Bragg’s petition. Referring to the acknowledgment signed by Frazier, Swersky’s letter states, “There is a procedural defect in the initiation of these proceedings. The statute, Title 2.2, Code of Va, § 3713A, requires that the petition be accompanied ‘by an affidavit showing good cause.’ This requirement has not been complied with. The original document, purporting to comply with statute, fails to satisfy the statutory requirement…
“There is no statutory provision that enables a member of the governing body to, at a later time, voice his or her objection. This provision, requiring prompt objection, was designed to give the governing body an opportunity to promptly consider the issues raised at the meeting in question. For those reasons, the document purporting to be an ‘acknowledgment’ does not furnish the good cause required by the statute.”
In response, Konick submitted a Motion for Reconsideration, answering the judge’s objections, stating substantive reasons for the petition to go forward. But in May of that year, Swersky again denied Bragg’s petition.
In August 2017, Konick appealed Swersky’s decision to the Virginia Supreme Court, arguing: “The Trial Court’s narrow and restrictive construction of FOIA in this case is not in accord with a long line of cases decided by this [Supreme] Court that carry into effect the General Assembly’s dictate that the Freedom of Information Act be liberally construed… .”
Konick’s petition asked that the court “issue a writ of appeal in this case, to reverse the Trial Court’s May 30, 2017 order dismissing the [petition] with prejudice, and to remand this case to the Trial Court for further proceedings.”
The Supreme Court agreed to hear the appeal and on December 5 Konick appeared before a three-justice writ panel — Senior Justice Charles S. Russell, Justice S. Bernard Goodwyn, and Justice D. Arthur Kelly — to argue five errors in Swersky’s decision. Later that month, the panel voted 2-1 to send the appeal to the full court.
After the decision was handed down Konick told the Rappahannock News, “Obviously it is gratifying to Mrs. Bragg and to me that two or more out of three Supreme Court justices concluded there was reversible error on all five of the exceptions detailed in our Petition for Appeal that was filed back in August and argued in Richmond on December 5.”
On April 19, 2018, Konick argued before the entire Virginia Supreme Court, which on May 16 ruled to reverse Swersky’s May 2017 decision.
The taxpayers’ dollar
In the meantime, at its July 2018 meeting, the Board of Supervisors voted 4-1 in favor of authorizing Goff to meet with Konick to explore what settling Bragg 1 would entail. In an email the next day, Goff indicated that he had approached Konick to discuss a potential settlement.
“Mr. Konick did not provide me with a dollar figure, although I have asked him for it,” Goff said.
At the same meeting, Goff asked the BOS to fund some additional legal help in meeting the demands of the suit and an upcoming murder trial. The supervisors voted 3-1 to deny the funding.
But at subsequent meetings, as additional lawsuits against the county piled up, the supervisors voted on resolutions to hire Luke — or extend his employment — as deputy county attorney. They also approved the hiring of Mike Brown on a contractual, reduced-fee basis to assist Goff.
Other financial issues were brewing as county residents continued to complain about taxpayer money being spent on the litigation. When Bragg 1 was filed, the BOS did not have insurance against the risk of legal action. The board voted to create a fund to cover the BOS members’ legal expenses in Bragg 1.
Since then the county has invested in an insurance policy to cover costs incurred in subsequent lawsuits, but the policy sets a $100,000 cap on expenses per suit. The rest comes out of the taxpayers’ pocket, as pointed out by Washington resident Al Regnery in a March 1, 2018 letter to the Rappahannock News, in which he summarized the amount of taxpayer money Konick’s various lawsuits had cost the county.
In Bragg 1, according to Regnery, “The County has spent over $30,000 in attorneys’ fees so far, and the County Attorney and other county officials have spent several hundred hours defending it… . The County has hired an outside law firm to argue that case in the Supreme Court; the cost is capped at $7,000. Benefit to the taxpayers: Nothing.”
In December 2018, in a report to the BOS, Mike Brown speculated that Bragg 1 could end up costing six figures — footed by the taxpayers.
Back to Frazier
Supervisors’ meetings in 2019 were often unruly as Frazier on several occasions argued with Goff, insisting that as the county attorney he was required to represent Frazier as a member of the BOS. Goff maintained that because Frazier removed himself from the lawsuit and was an unnamed party, the county — or taxpayers, in this case — was not responsible for Frazier’s legal bills, nor for appointing outside counsel to represent him.
Frazier retained Tysons Corner law firm Offit Kurman and at the June 2019 BOS meeting submitted an invoice for $19,365 in legal fees he wanted taxpayers to cover.
In a divided vote at the August meeting, the board declined to pay the invoice. Frazier filed an appeal on August 29 asking the Rappahannock County Circuit Court to reverse the board’s decision. The BOS submitted the claim to its insurance company, which refused to pay the invoice.
On Jan. 16, 2020 Circuit Court Judge James E. Plowman, Jr. dismissed Frazier’s appeal. Plowman ruled that he did not have jurisdiction to overturn a discretionary act made by a legislative body, in this case the county’s supervisors.
“At the heart of this,” Plowman summarized, “is whether this court has jurisdiction to hear this case. No court has jurisdiction to reverse the legislative authority when the body’s action is discretionary.”
End in sight?
Bragg 1 might very well remind English majors of Jarndyce v Jarndyce, a fictional court case that threads through Charles Dickens’ novel Bleak House:
“Jarndyce and Jarndyce drones on. This scarecrow of a suit has, over the course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises.”
In the three-and-a-half years since Bragg filed her first petition, shortly after moving here from Culpeper County, there have been thousands of pages of court documents filed, read, and argued over. Scores of attorneys hours have been charged to the taxpayer. Three circuit court judges, and the Virginia Supreme Court have heard and ruled on various aspects. The case spawned another related suit against the county, and spanned a county election that replaced three of the originally named supervisors.
Hopefully soon there will be a resolution.