County awaits ruling on Bragg case
Judge Parker was back in Little Washington on Monday reviewing evidence
Circuit Court Judge Jeffery W. Parker was back on Gay Street in Washington this week reviewing earlier testimony, arguments and evidence presented by witnesses and lawyers alike in the case of Marian Bragg v the Board of Supervisors.
Parker declined to rule on the lawsuit late Friday following a rigorous and challenging two-day bench trial.
After closing arguments ended from both sides Parker, admitting to being tired, told the parties he would not be ruling at that moment, but preferred to take the matter “under advisement” and hand down an opinion at a later date, which he didn’t specify.
However, he said, “I get my opinions out pretty quickly.”
By Wednesday afternoon of this week those opinions still were not known, with one source close to the case not expecting them until perhaps Thursday or Friday.
Addressing the volumes of paperwork and exhibits, as well as the detailed parsing of evidence, Parker said he was tempted to ask for a transcript of the trial, which no doubt would run for hundreds of pages. In fact, Bragg’s attorney, David Konick asked, “You want the whole transcript?”
“My notes may not be sufficient,” Parker said.
Bragg, a resident of Harris Hollow, charges that the Rappahannock County Board of Supervisors violated Virginia’s Freedom of Information Act (FOIA) during five closed-to-the-public meetings in 2016 while choosing a replacement for retiring Rappahannock County Attorney Peter Luke. The case is known as Bragg 1 to distinguish it from a second case Bragg filed against the BOS in 2017, both after she moved to Rappahannock from Culpeper County.
Day two began with arguments about the admissibility of a memo Luke sent to the county’s Board of Supervisors in February 2016. Jackson Supervisor Ron Frazier tried to use the document in his testimony at the end of the first day, saying it laid out the process for selecting Luke’s replacement. When Frazier supplied copies to Parker, Konick, County Attorney Art Goff and local attorney Mike Brown (assisting Goff), Goff immediately objected.
He said that the document had a bold-faced all-caps warning across the top stating that the memo was protected by lawyer-client privilege and was not for public disclosure. Because the “client” was the BOS as a whole, he said, Frazier could not unilaterally waive the privilege.
Konick said this was the first time he had seen the memo; yet Goff told the court that Frazier did not produce the document — from a folder he carried to the witness stand — until Konick asked about it. Frazier, the only supervisor not named in the suit, was called as a witness for Bragg’s side.
“It seems remarkable that this witness [ just shows up with this document],” said Judge Parker. Before recessing for the day, Parker admonished the attorneys not to share the memo with anyone, even the press.
Friday morning, day two, Parker cleared the courtroom so that the attorneys for both sides could freely discuss the memo in determining whether the contents could be discussed in open court. They ultimately decided to waive privilege for certain uses in testimony.
One of Bragg’s allegations is that the public was “ejected” from BOS meetings before the board read and voted on a motion to go into closed session, as required by FOIA. In her testimony, former County Administrator Debbie Keyser, who served as Deputy County Administrator in 2016, denied that anyone was ejected from the meeting room.
Another witness, however, Paige Glennie, testified that on one occasion, Keyser asked him and another person to leave.
“Ms. Keyser said we had to leave and escorted us downstairs,” said Glennie. “We left before the motion was read.”
He described, as did other witnesses, the process of the board’s going into closed session: the BOS would announce a recess before going into closed session. Members of the public just left.
Another allegation was that the board discussed topics in closed session exempt from the provisions of FOIA. Konick interrogated Luke about the process of creating an adver