Su­per­vi­sors, county at­tor­neys wran­gle over Bragg suits against govern­ment

‘You could do a lot bet­ter for your­self if you just toned it down’

Rappahannock News - - FRONT PAGE - By Patty hardee Spe­cial to the Rap­pa­han­nock news

Things were mov­ing along smoothly at Mon­day’s Board of Su­per­vi­sors meet­ing — pub­lic com­ments heard, pre­sen­ta­tions made, ap­point­ments an­nounced, just rou­tine busi­ness. Too smoothly, it turns out.

Al­most two hours into the af­ter­noon ses­sion, sev­eral agenda items touched off an ar­gu­men­ta­tive de­bate be­tween Jack­son Supervisor Ron Fra­zier, Pied­mont Supervisor Chris­tine Smith, and County At­tor­ney Art Goff about the county’s progress in ad­ju­di­cat­ing Mar­ian Bragg v the Board of Su­per­vi­sors.

Bragg, a Gid Brown Hol­low llama farmer, al­leged in her 2016 suit (known lo­cally as Bragg 1, for the first of two suits she has filed against the BOS) that the Board of Su­per­vi­sors vi­o­lated Vir­ginia’s Free­dom of In­for­ma­tion Act (FOIA) on sev­eral oc­ca­sions. The suit charges vi­o­la­tions of pub­lic no­ti­fi­ca­tion be­fore the su­per­vi­sors went into closed ses­sions to con­sider hir­ing a Rap­pa­han­nock County At­tor­ney in 2016.

The first agenda item was to ex­tend Peter Luke’s em­ploy­ment as Deputy County At­tor­ney un­til July 31, 2019. Goff told the BOS that Luke

was valu­able for his in­sti­tu­tional knowl­edge of the county and Bragg 1.

“The Board is well served by his con­tin­ual in­volve­ment,” Goff said.

Smith wanted to know why progress had not been made to­ward seek­ing set­tle­ment in the time since a BOS Au­gust vote au­tho­riz­ing Luke’s ser­vices.

Goff ex­plained that four or five times he had asked David Kon­ick, Bragg’s at­tor­ney, to sug­gest set­tle­ment terms, but that Kon­ick had not re­sponded. When Fra­zier asked why Goff didn’t sug­gest terms him­self, Goff said, “Why should we bid against our­selves? We should wait un­til we know Mr. Kon­ick’s num­ber.”

In a raised voice, Fra­zier re­peat­edly in­ter­rupted and chal­lenged Goff and oth­ers un­til chair Roger Welch had to call or­der.

“You could do a lot bet­ter for your­self if you just toned it down,” Welch told Fra­zier, even as Fra­zier con­tin­ued to ar­gue.

Fra­zier ques­tioned why he had been sub­poe­naed for a de­po­si­tion and not the other mem­bers of the board.

“You sin­gled me out,” Fra­zier said to Goff.

“I’m not go­ing to sub­poena my own clients,” Goff replied. He pointed out that Fra­zier was not a party to the suit. When the suit was filed, Kon­ick of­fered to ex­empt any mem­ber of the board who chose to ad­mit they had vi­o­lated FOIA in the ways al­leged by Bragg. Fra­zier was the only BOS mem­ber who took the of­fer.

In an email Wed­nes­day, Fra­zier said “[Goff] stated they wanted their in­for­ma­tion un­der oath and the in­sin­u­a­tion is I might oth­er­wise lie.”

Goff said in his own email on Wed­nes­day, “I told [Fra­zier] that he re­ceived a sub­poena from us be­cause he is car­ry­ing wa­ter for Kon­ick. I con­sider him to be an ad­verse wit­ness against the Board and my in­di­vid­ual clients. The pur­pose of dis­cov­ery is to find out what a wit­ness will say at trial and what doc­u­ments he or she may have rel­e­vant to the is­sues. It is there­fore in­cum­bent upon me to get that in­for­ma­tion in ad­vance of trial through the use of sub­poe­nas and de­po­si­tions which are an­swered un­der oath and sub­ject to the penalty of per­jury.”

The ar­gu­ment con­tin­ued un­til Par­rish and Lesin­ski moved to ap­prove the res­o­lu­tion to ex­tend Luke’s em­ploy­ment, but to change the end to co­in­cide with the county’s fis­cal year end on June 30.

The res­o­lu­tion passed with a four to one vote, Smith be­ing the lone dis­senter.

Fra­zier then an­nounced that he would be re­tain­ing his own at­tor­ney and that he planned to use the county’s lit­i­ga­tion fund.

Goff, in his email, ad­dressed that point.

“As to the lit­i­ga­tion fund,” Goff said, “Fra­zier is not a de­fen­dant in the Bragg I case, and there­fore, he is not legally en­ti­tled to use County lit­i­ga­tion fund money to pay for his own pri­vate at­tor­ney.”

At­tor­ney Mike Brown, co­coun­sel to the BOS in Bragg 1, at­tempted to re­view the sta­tus of the case. Fra­zier asked why the Board had not been con­sulted about the lit­i­ga­tion.

“There is no re­quire­ment for coun­sel to come back to the Board for ap­proval of every mo­tion and plead­ing,” said Brown. “Once it be­gins, lit­i­ga­tion has to hap­pen at its own pace.”

Brown also ex­plained that he would be glad to ap­proach Kon­ick with a set­tle­ment of­fer, if the Board could de­cide the terms it would ac­cept.

COM­MIT­TEE RE­PORTS

➤ The County Build­ings Com­mit­tee, chaired by Fra­zier and Lesin­ski, re­ported that the court­house wheel­chair ramp was com­plete. Tem­po­rary rail­ings would be re­placed shortly.

They also said that the county is work­ing through the process of choos­ing an en­gi­neer­ing firm and other con­trac­tors to as­sess and com­plete the re­pair and restora­tion work on the county’s build­ings.

➤ Lesin­ski, Broad­band Com­mit­tee chair, re­ported that he and Curry had been meet­ing with broad­band providers to see what might be a “good fit for the county.” Lesin­ski said that the county would likely have to “come to the ta­ble with a fi­nan­cial pro­gram” in the form of grants, mu­nic­i­pal bonds, or a pub­licpri­vate part­ner­ship.

➤ Fra­zier, Rules Com­mit­tee chair, said that his group had been work­ing on a code of con­duct and ethics for the county based on that used by Madi­son County. The Rap­pa­han­nock code would ap­ply to the BOS, its em­ploy­ees, and boards and com­mis­sions ap­pointed by the BOS.

OTHER BUSI­NESS

The board voted unan­i­mously in fa­vor of:

➤ A res­o­lu­tion re­quest­ing the VDOT Com­mis­sioner to des­ig­nate Route 729, Ben Venue Road, as through truck re­stricted. For sev­eral years, the res­i­dents of Ben Venue Road — the 3.5 mile por­tion of Route 729 be­tween Routes 211 in Ben Venue and 522 in Flint Hill — have com­plained about the amount of heavy truck traf­fic us­ing the road as a cut through.

The process for the des­ig­na­tion will be sim­i­lar to that used to re­strict trucks on Wa­ter Street in Sper­ryville. The res­o­lu­tion sets the stage for VDOT to be­gin its en­gi­neer­ing stud­ies and traf­fic analy­ses along Ben Venue. (Dis­clo­sure: Patty Hardee lives on ben Venue and is one of the neigh­bors re­quest­ing VDOT’s ac­tion).

➤ A five-year spe­cial ex­cep­tion per­mit for Wind­sor Lodge Sta­bles north of Flint Hill to op­er­ate a con­fer­ence cen­ter and event venue. The ap­pli­cant can hold four events per cal­en­dar year and must no­tify Flint Hill/Wash­ing­ton Fire and Res­cue, VDOT, and the Sher­iff's Of­fice at least 30 days prior to the date of each event of 50 peo­ple or more.

➤ A res­o­lu­tion sup­port­ing the re­in­state­ment of a Head Start pro­gram and as­so­ci­ated fund­ing in Rap­pa­han­nock County.

➤ Meet­ing video at rapp­news. com/video

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