County settles Bragg litigation cases
‘Probably the simplest thing we can do to clear this out and move on’
With apologies to poet T.S. Eliot, the two cases llama farmer Marian Bragg brought against the county’s Board of Supervisors ended “Not with a bang but a whimper” a er a short, subdued discussion concluded with a ve-to-zero vote to settle both cases.
Gid Brown Hollow resident Bragg had alleged that the supervisors violated Virginia’s Freedom of Information Act [FOIA] on several occasions in different ways.
And with that vote in last Monday’s Board of Supervisors’ meeting, all parties were authorized to sign a threepage agreement laying out the terms of the settlement.
As Stonewall-Hawthorne Supervisor Chris Parrish put it, “This [agreement] is probably the simplest thing we can do to clear this out and move on.”
To close out Marian Bragg v the Board of Supervisors of Rappahannock County (Bragg I), the county will issue a check to Bragg for $6,054, the amount awarded by Circuit Court Judge Je rey W. Parker a er a two-day trial in February 2020.
For Bragg II, the county’s litigation insurance agency has written a check for $11,946 payable to Bragg’s attorney in both cases, David Konick.
County Attorney Art Go pointed out that the payment for Bragg II has “nothing to do with taxpayer money except for the premiums we once paid” to the insurance company. (The Board did not have such insurance when the Bragg I lawsuit was led.)
Parrish drew the board’s attention to a clause in the agreement that applies to both cases: “Nothing in this Agreement shall be construed as an admission of a violation of the FOIA by the Board or any other defendant, and any such violation is expressly denied by the Board and the other defendants.”
Jackson Supervisor Ron Frazier took exception to that, insisting: “The court did nd that this board violated parts of FOIA [in Bragg I],” before then voting with the other members to accept the agreement.
BRAGG I HISTORY
The petition for Bragg I, led Sept. 29, 2016, in Rappahannock County Circuit Court, named the board of supervisors and, individually, its ve elected representatives: Roger Welch, Chris Parrish, John Lesinski, Mike Biniek, and Ron Frazier.
Frazier was later dropped from the suit when he accepted a deal presented by Konick to acknowledge wrongdoing by the Board behind closed doors.
The petition claimed that the supervisors violated FOIA by discussing various matters relating to the search for a replacement for then- County Attorney Peter Luke, who was set to retire at the end of 2016. The “matters” discussed, according to the ling, 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.)
Over the course of four years, the case was in and out of Circuit Court, with a brief sojourn to the Virginia Supreme Court, when Konick appealed Judge Alfred D. Swersky’s dismissal of the case. In a March 17, 2015, opinion letter, Swersky cited several procedural and technical reasons for the dismissal. He upheld his ruling in a subsequent opinion letter a er Konick entered an Order to Reconsider. The Supreme Court, on May 16, 2019, granted Konick’s appeal and remanded the case back to the Circuit Court.
In August 2019 Frazier pressed the county to pay for his $19,365 in legal bills in connection with Bragg I. By a three-to-two vote on Aug. 5, 2019, the Board of Supervisors refused to pay because Frazier was no longer a named party in the suit.
He appealed the decision to Circuit Court later that month. Judge James E. Plowman dismissed Frazier’s appeal in January 2020, saying that “No court has the authority to reverse the legislative authority when the body’s [the BOS, in this case] action is discretionary.”
Finally, on Feb. 20-21, 2020, almost four years a er the initial ling, Bragg I went to trial. In a March 5 opinion letter, Parker said that although there had been some violations of FOIA, he found there were “no ulterior motives” or pro t on the part of the Board of Supervisors in conducting closed meetings to choose a county attorney. The judge stated that a “civil penalty will not be imposed upon any member of the board.”
Parker also narrowly granted relief to Bragg, who was unable to prove that she had been personally harmed by the Board’s actions — or even that she had attended the BOS meetings contested in her petition.
“To the extent that [Bragg] seeks an injunction against further similar discussions of attorney-hiring in closed session,” said Parker, “that will be granted for a term of ten years.” A later opinion letter dated Aug. 27, 2020, dealt largely with evidentiary issues concerning Konick’s claimed attorney's fees.
The next suspenseful hurdle: given his ruling largely in favor of the Board, would Parker award attorney fees to Konick, who estimated he was owed more than $132,000. In September 2020, Parker awarded Konick $6,250.
“There were numerous issues upon which the Petitioner [Bragg] failed to prevail,” observed Judge Parker in an opinion letter. “Therefore, the Court will grant the Petitioner 25 hours in attorney's fees at his going rate of $250/ hour (which the Court nds reasonable) totaling $6,250.00 plus $4.00 in costs equaling $6,254.00 to be paid within 30 days from entry of the Order, less $200.00 in unpaid discovery charges.”
Konick entered a motion in Circuit Court for “Reconsideration of [the two] Letter Opinions.” In an email to Circuit Court Clerk Peggy Ralph on Oct. 28, 2020, Parker “denied the said Motion.”
On December 18 of that year, Konick appealed Parker’s ruling in Circuit Court and led a Notice to Appeal to the Virginia Supreme Court. The settlement agreement states, “Upon payment of the aforesaid sum to Bragg, counsel for Bragg shall le written notice to the Clerk of the Supreme Court of Virginia… that the case has been settled and the appeal withdrawn.”
BRAGG II HISTORY
Marian Bragg v the Board of Supervisors of Rappahannock County (dubbed Bragg II), led on Dec. 28, 2017, again alleged that the board violated FOIA, this time by not properly advertising and considering candidates for the county administrator in the fall of 2017. Former interim County Administrator Brenda Garton was also a named party in Bragg II.
Bragg II, waiting for Bragg I to be resolved, did not get any further. In an email Wednesday, Parrish wrote:
“It is nice to have [these cases] behind us. I imagine that Konick wanted to clear the air so as not to run for election [for Parrish’s BOS seat when he retires] on the same board that he was suing. As usual, it is cheaper for the insurance company to pay him to go away than to go to court. This is probably the h time for that in the last few years.
“With Bragg 1 we took it to court so the judge could completely clear us of any infractions. It was a fair amount of expense to the taxpayer to defend a suit trumped up by Konick and a board member to keep us from hiring a county attorney who ironically didn’t even apply for the job.”
Settling these cases is “another thing we should have done a long time ago,” mused Frazier in Monday’s meeting.