‘Bragg 1’ goes on... and on

Also in court: Lee sentenced to five years

Will Bragg 1 ever be over? One month shy of the fourth anniversary of its ling date in September 2016, Marian Bragg v. The Board of Supervisors of Rappahannock County was back before Judge Je rey W. Parker in Rappahannock County Circuit Court on Monday, Aug. 24 — this time to argue whether Bragg’s lawyer David Konick would be paid any or all of the $132,769.46 in attorney’s fees he claims he is owed.

Bragg, a resident of Harris Hollow, charged that the Rappahannock County Board of Supervisors violated Virginia’s Freedom of Information Act (FOIA) during ve 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 led against the BOS in 2017.

According to a letter of agreement signed by Bragg on Sept. 26, 2016, Konick charged her a “non-refundable retainer of $1.00” and acknowledged that he would take the case on a contingency basis: He would charge no attorney’s fees, but would expect to be paid by the county if Bragg “substantially prevails.”

“As we have discussed,” Konick wrote in the letter, “the Virginia Code provides for an award of attorney’s fees in the event a FOIA challenger ‘substantially prevails’ in the matter. In light of the public interest aspects of this matter, I am willing to accept employment in the case for whatever fees the Court sees t to award, if any, pursuant to Virginia Code Section 2.23713(D), based on my regular hourly rates [of $250].”

At Monday’s hearing, Konick presented two documents — totaling nine single-spaced pages — listing dates and services rendered from Sept. 21, 2016, to Aug. 24, 2020. Attorney Mike Brown, defending the county in the case, objected repeatedly to the documents, calling them “hearsay” in the eyes of the law because the truth and authenticity of the time charges could not be veri ed. Brown also charged that Konick had not supplied his billing records during evidence discovery earlier in the case.

“You haven’t produced [documents] authenticating these expenses and whether they’ve been paid,” Brown said, arguing that laws governing recovery of expenses are to help clients recover fees they paid, not to make it easy for attorneys to make money for themselves. Brown moved to suppress the records from evidence.

Under oath, Konick testi ed that the documents represented “a true and accurate accounting of my time and expenses” that he compiled by reviewing his own les, invoices, and correspondence. He told the court that Bragg had paid all but about $1500 in court reporter fees. Parker also questioned Konick about how he had arrived at charges for time spent.

“I’m trying to gure when you prepared [the rst document],” Parker said. “And how do you know you spent the time you say [you spent]?”

On the issue of whether Bragg had, in fact, substantially prevailed in the case a er the two-day trial in February of this year, Brown said it was something the court needed to decide. In referring to Parker’s March 5, 2020, opinion letter, Brown pointed out the claims Bragg made that she did not win.

In his March letter, Parker ruled that although the Board’s closed-door discussions were overly broad and strayed into areas not exempt from FOIA, he found “no ulterior motives” on the part of the Board of Supervisors in conducting those closed meetings. He also narrowly granted relief to Bragg, saying: “To the extent that [Bragg] seeks an injunction against further similar discussions of attorney hiring in closed session, that will be granted for a term of ten years.”

When the injunction was brought up in Monday’s hearing, Parker surprised everyone in the court when he announced that he intended to rewrite or clarify some portion of his opinion letter. Although he o ered no specifics, he hinted that he wanted to revisit the injunction portion of his opinion.

Asked if changing an opinion letter is common, Brown, in a phone call Tuesday, said that courts most respond to an attorney’s motion to appeal.

“But,” he said, “for a court on its own initiative — without a motion to reconsider — to announce it intended to rewrite part of an earlier opinion is uncommon.”

At the end of Monday’s hearing, Parker said he would take under advisement both issues — whether to suppress Konick’s statement of his fees and expenses and whether to award attorney’s fees.

In a phone call Tuesday, Stonewall-Hawthorne supervisor Chris Parrish, named in the Bragg case, lamented that the suit “distracted us [the supervisors] from doing the county’s business and it cost the taxpayers.”

LEE SENTENCED TO FIVE YEARS

Brittney Lee of Washington was sentenced in Rappahannock County Circuit Court on Aug. 20 to ve years in the Department of Corrections after having pled guilty on July 28 to a charge of a fourth DUI within 10 years and violating probation on two other previous DUIs. Judge James Plowman suspended four years of the sentence, but declared that Lee was required to serve a one-year minimum in jail.

On Jan. 13, 2020, the 31-year-old Lee was charged with a fourth instance of driving while intoxicated, two counts of driving on suspended or revoked license, and one count of drinking while driving with an open container in her vehicle.

She has been held in Rappahannock Shenandoah Warren Regional Jail since her arrest on Jan. 13.