Fredericksburg FOI Case: Motion for Sanctions
IN THE CIRCUIT COURT OF
THE CITY OF FREDERICKSBURG, VIRGINIA
)
GORDON SHELTON, et al, )
)
Petitioners, )
)
v. ) Chancery No. CH02-428
)
BILL BECK, individually as well as in )
his capacity as Mayor of the City of )
Fredericksburg, VA, et al., )
)
Respondents. )
)
MEMORANDUM OF RESPONDENTS MAYOR BILL BECK,
VICE-MAYOR SCOTT HOWSON, COUNCILMEMBER DR. TOM
FORTUNE, AND COUNCILMEMBER MATT KELLY IN SUPPORT OF
THEIR MOTION FOR SANCTIONS PURSUANT TO VA. CODE § 8.01-271.1
I. INTRODUCTION
Respondents Bill Beck, Scott Howson, Tom Fortune, and Matt Kelly hereby move for sanctions against Petitioners based on Petitioners’ assertion of unsupported and baseless claims of official misconduct by Respondents in Counts XV, XVI, and XVIII of the petition. With respect to each of these counts, Petitioners alleged that Respondents engaged in intentional violations of Virginia’s FOIA statute, Va. Code § 2.2-3700, et seq., by having secret face-to-face meetings. Indeed, Petitioners even made specific allegations that Respondents took particular steps to hide these supposed face-to-face meetings from public scrutiny. However, none of these supposed meetings took place. Petitioners had no basis for asserting that the illegal meetings alleged in Counts XV, XVI, and XVIII occurred. Indeed, discovery has demonstrated that Petitioners failed to conduct even a minimal inquiry to determine whether these allegations had a basis in fact before charging five elected public officials with knowing malfeasance in office.
First, after the Court sustained Respondents’ demurrer with respect to Count XV, Petitioners filed an amended Count XV alleging as a "fact" that all five Respondents participated in a tour of the Maury school "to determine its possible suitability for the various proposals that have been made for using this public building." See Amended Count XV, at ¶ ¶ 28-30. When Petitioners were deposed, however, they admitted that they had no factual basis for alleging that all five Respondents participated in an unannounced tour of the Maury school, or even that three of the members of the City Council participated in such a tour.
Second, in an allegation designed to titillate the public, but without any basis in fact, Petitioners allege in Count XVI of their Petition that Respondents participated in an illegal, secret meeting aboard a FRED bus. In a series of allegations more appropriate for a low-grade spy novel, Petitioners allege: (1) that, upon information and belief, Respondents had a meeting aboard a FRED bus at some point between July 15, 2002 and August 15, 2002; (2) that the purpose of this meeting was to "discuss[] City business so that a consensus could be reached by the [Respondents] before meeting with Councilman Wilson and Councilman-elect Turner"; (3) that, upon information and belief, Respondents boarded the bus separately and left separately "in an attempt to conceal their secret meeting"; (4) that Respondents deliberately did not include Councilmen Wilson and Turner in this secret FRED bus meeting; and (5) that, upon information and belief, Respondents "deliberately held this meeting secretly and privately in a knowing, willful and deliberate attempt to avoid public scrutiny and decide City business without the input of all the council members and the public." Petition at ¶ ¶ 140-143.
The principal problem with the FRED bus allegations is that they are entirely the product of Petitioners’ imaginations. After being repeatedly implored in their depositions to provide a basis -- no matter how slight -- for making these serious allegations against Respondents, Petitioners were forced to admit that they are unable to point to a single piece of evidence that would support their assertion of such charges, or of any reasonable inquiry Petitioners made concerning the veracity of their allegations.
Third, in Count XVIII, Petitioners allege that, upon information and belief, Respondents conducted a secret meeting to discuss "City business as it pertained to the homeless shelter so that a consensus could be reached by the [Respondents]." Petition at ¶ 157. Notably absent from the petition is a date when this secret meeting supposedly occurred, the location of this secret meeting, or any details concerning the supposed discussions. When pressed during their depositions to disclose the "information and belief" that supposedly supports an allegation that this alleged meeting occurred, Petitioners had absolutely nothing to offer.
Recognizing that the allegations in Counts XV, XVI, and XVIII are entirely lacking in a factual basis, and are in fact false, Petitioners are seeking to avoid having to answer for their conduct by dismissing each of these counts a few days before trial. It is not sufficient, however, for Petitioners to assert baseless charges without any reasonable pre-filing inquiry, and then simply to dismiss the counts after conducting discovery. Indeed, there is a common thread running through the depositions of all three Petitioners, in that their attitude appears to be that they did not need to have any basis before filing claims against Respondents because they could simply take discovery to determine -- after the fact -- whether there was any merit to the unsubstantiated allegations they filed.
If the Court does not sanction Petitioners for recklessly filing allegations of official malfeasance and corruption, the Court will send Petitioners and their allies a clear message that they do not need a basis for filing similar such allegations against Fredericksburg’s elected officials. The message will be that Petitioners have an unfettered ability to file baseless and unsupported claims against their elected officials, and thereby subject those elected officials to burdensome discovery and harassing depositions, because there is no sanction for filing scandalous charges that have not been the subject of a reasonable pre-filing investigation. The only way to stop the filing of bad-faith claims such as those Petitioners asserted against Respondents is to demonstrate that Petitioners are not entitled to a "free shot" at their elected officials -- that the law places certain obligations on a plaintiff before he may assert claims in a lawsuit, and there is a heavy price to pay if a plaintiff ignores these obligations. Therefore, the Court should order that Petitioners are liable for the attorneys fees and costs incurred by Respondents in litigating Counts XV, XVI, and XVIII. The people of Fredericksburg should not be forced to underwrite the cost of Petitioners’ litigation folly.
II. ANALYSIS
A. The Requirements of and Policies Behind Va. Code § 8.01-271.1
Va. Code § 8.01-271.1 provides in pertinent part:
Every pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name . . . .
The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . . .
. . . .
If a pleading, motion, or other paper is signed or made in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed the paper or made the motion, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper or making of the motion, including a reasonable attorney’s fee.
Va. Code § 8.01-271.1. Petitioners’ petition, as well as the amended Count XV, were signed by counsel of record for Petitioners. Moreover, Petitioner Timpone submitted an affidavit with Petitioners’ petition in which he asserted that the allegations, other than the e-mails attached to the petition, "are true to the best of my knowledge, information and belief." Petition at 28.
The Virginia Supreme Court recently has identified some of the policies underlying the availability of sanctions where allegations are not well-grounded in fact or in law: "The possibility of a sanction can protect litigants from the mental anguish and expense of frivolous assertions of unfounded factual and legal claims and against the assertions of valid claims for improper purposes." Gilmore v. Finn, 259 Va. 448, 527 S.E.2d 426, 435 (2000). Moreover, "the factual and legal viability of separate claims are individually assessed for sanction purposes." Id. at 436; Nedrich v. Jones, 245 Va. 465, 472-77, 429 S.E.2d 201, 205-07 (1993). Therefore, the relevant inquiry concerns the factual basis that Petitioners had for asserting that Respondents -- all of whom are public officials -- actually engaged in the conduct alleged in Counts XV, XVI, and XVIII of the Petition.
B. Petitioners Asserted Their Claims Respecting the Maury School Without Any Factual Basis and Without Reasonable Inquiry
In Count XV of their petition, Petitioners alleged that Respondents conducted a secret illegal meeting at the Maury school in violation of FOIA. However, discovery in this action has confirmed that Petitioners had absolutely no basis for asserting that three or more of the Respondents toured Maury school together. Indeed, Exhibit 14 to Petitioners’ own petition refutes such a contention, as that exhibit contains an e-mail in which Respondent Howson states that he intends to take only Respondent Withers on a tour of Maury school. A tour involving just Respondents Howson and Withers on its face cannot constitute a meeting under FOIA because "meetings" under FOIA require the attendance of at least three members of a public body. The Howson e-mail states as follows: "Since Billy [Withers] is the only one who’s not been through Maury I’m just going to meet him there Saturday morning at 10." See E-mail from Scott Howson to Matt Kelly dated Aug. 7, 2002, at 2:38 p.m. (attached as Exhibit A to the O’Connor Affidavit).
Although the documents filed by Petitioners in this case refute the notion that three members of the City Council -- much less all five Respondents -- conducted a tour of Maury School, Petitioners alleged in their amended Count XV that all five Respondents attended, and did not even characterize this assertion as being "upon information and belief." Given this allegation that an illegal meeting occurred, when Respondents took the depositions of Petitioners, Respondents sought to discover the basis for Petitioners’ allegations. Petitioners’ testimony as to the factual "basis" is set out below:
1. Petitioner Jenkins
During his deposition, Petitioner Jenkins testified as follows concerning the factual basis for his allegation that an illegal tour of Maury school occurred:
Q: Now, your amended petition goes on to say that, indeed, more than two councilmen toured the Maury School building and conducted public business; is that right?
A: Right.
Q: Were you present at the Maury School building at any time where you saw more than two councilmen enter the building?
A: No.
. . . .
Q: Do you know of any person who claims to have seen more than two councilmen within the Maury School Building after July 2?
A: I can’t recall.
Q: And I need an answer to this question. You’re a Petitioner here and I’m assuming this is something of importance to you. You have charged another public official with a violation of law; correct?
A: If that’s what -- Right.
Q: And I assume that if you knew that somebody had said to you, by God, I was at Maury School on August 1 and there was Billy, and Tom, and Matt, the Mayor there in the building, you would recall that now, wouldn’t you?
A: I recall it in The Free Lance-Star.
Q: You recall reading something in The Free Lance-Star; is that right?
A: Yes, sir.
Q: Can you tell me the name of any person who you or your co-petitioners intend to testify regarding more than two councilmen being within the Maury School building on or after July 1 of 2002?
A: You’re asking me do I know of any witnesses?
Q: That’s it. That’s it, Mr. Jenkins.
A: Not that I recall.
Jenkins Dep. at 108-10 (copy attached as Exhibit B to O’Connor Aff.). Of course, Petitioners have not produced a copy of the Free Lance-Star article that supposedly provides the factual basis for Petitioner Jenkins’s assertion that he had a factual basis for asserting in amended Count XV that the five Respondents toured Maury school together, and there is no indication that any such newspaper article exists.
2. Petitioner Shelton
Petitioner Shelton’s deposition testimony was no more illuminating concerning the factual basis for Petitioners’ claim that Respondents conducted an illegal meeting at Maury school. After claiming that he had seen an e-mail that confirmed that at least three of the Respondents had toured the Maury school together, Petitioner Shelton was unable to support this claim:
Q: Who went on this tour that you have alleged actually happened?
A: I would certainly think that Scott Howson went.
. . . .
Q: I want to know knowledge from any source whatever that would lead you to say that.
A: But -- but I have a tendency to leave something out or leave somebody out. And I hope you are not going to ask that question because I could go on all day talking about Maury.
Q: I just want to know -- You have said -- you have alleged in suing these five --
A: Right.
Q: -- elected officials --
A: Right.
Q: -- that they went to Maury. And what I’m asking is, tell me who you know went to Maury on this tour that you allege took place?
A: Well, I would certainly say three of them were there.
Q: Which three?
A: Maybe all of them.
Q: Do you have any basis for saying that?
A: Yeah; sure. I can read between the lines here.
Q: And do you know anybody who can say that they saw three or more of the respondents at Maury on a tour?
A: I don’t know, but I expect we will find out soon enough.
Q: What does that mean?
A: Well, we are going to have a trial, aren’t we?
Q: We are. And my question is tell me what you have. As part of our preparation for trial, we are entitled to know what you have evidence of; and so far I have asked you who went to Maury, and you are telling me it was probably at least three, maybe 5. I’m asking, do you have somebody who is going to say they saw a tour take place at Maury [other than the Respondents]?
A: Yeah.
Q: Who?
A: I say other than the respondents. This thing is going too long. I was not going to elaborate on anything. I thought that was what you wanted, not to elaborate on it.
Q: No, I want your answer to the question. My question is --
A: (interjecting) My answer to the question is I will stick to what is right here.
. . . .
Q: Who has told you that a meeting took place at Maury with three or more members of the City Council?
A: I have had so much feedback about this particular one that I have forgotten about.
Q: So, you can’t tell me --
A: (interjecting) No.
. . . .
Q: What makes you so sure that at least three members of the City Council would have gone on this tour of Maury that you allege?
A: Everything that I have read in all of these 1500 to 2000 sheets of paper. There is a pattern here, and I would -- I’m saying that Beck was there, Howson was there, and Kelly, Fortune, and Withers.
Q: Why do you say Beck was there?
A: Just normal routine.
Q: So you don’t have -- You didn’t see Beck at Maury?
A: No.
. . . .
Q: Can you identify anyone who is going to say that Beck was at Maury?
A: Not off this list; no.
Q: Off any list?
A: We get lots of calls.
Q: Who have you gotten calls from on this case?
A: Probably thousands of people.
Q: Well, let’s start listing them.
A: No; I can’t remember them, it’s so many of them.
Q: Let’s start listing the ones you know. I realize it will be a non-exclusive list, but tell me who has called --
A: (interjecting) No; I’m not going to name anybody not being able to name them all.
. . . .
Q: What I want to know is tell me the people you can think of who has [sic] given you any information concerning the facts that are alleged in this lawsuit. Sir, name me one person, other than your counsel, Jenkins and Timpone . . . that have [sic] given you any information concerning any of the facts that you have alleged in this lawsuit.
A: To the entire suit?
Q: To the entire suit. Name me one person.
A: You are getting in a situation now, in my opinion, where -- the have-and-have-nots, and that was one thing that I thought the Judge said not to touch.
Q: Has anyone told you that Fortune was at this tour of Maury that you have alleged in your lawsuit?
. . . .
A: Well, I will stick by the e-mails.
Q: So nobody has told you that Fortune attended this tour of Maury that you allege?
A: Nobody has told me, but I -- I will just stick with the e-mails.
. . . .
Q: Has anyone told you that Kelly went on this tour of Maury?
A: No.
Shelton Dep. at 21-36 (copy attached as Exhibit C to O’Connor Aff.).
Moreover, when presented with the e-mail from Respondent Howson to Respondent Kelly, in which Respondent Howson states his intention to take only Respondent Withers on as tour of Maury school, Petitioner Shelton flatly admitted that the exhibits to his own petition refute his claim that three members of the City Council went on a tour of Maury:
Q: So the very exhibit you submitted with your petition contained an e-mail where Howson says he is just going to take Withers over to Maury; isn’t that right?
A: That’s what it says; yes.
Shelton Dep. at 38-39.
Thus, the written record before Petitioners indicated, by Petitioner Shelton’s own admission, that only Respondents Howson and Withers were going to tour Maury school. Yet, Petitioner Shelton was unable (and/or unwilling) to identify a single fact of which he was personally aware, or of which he had been made aware by any other person, that would create a factual basis for asserting that the five respondents conducted a secret meeting at the Maury school in violation of FOIA.
3. Petitioner Timpone
Petitioner Timpone similarly had no facts to support his allegation in Count XV, an allegation that is not even asserted "on information and belief," that the five Respondents actually conducted an illegal meeting at Maury School:
Q: Okay; in paragraph 30 [of Petitioners’ amended Count XV], you allege that all five respondents went on a tour of the Maury School; do you see that?
. . . .
A: Correct.
Q: These amended counts were filed on or about November 8, 2002; and my question is as of November 8, 2002, what was the basis for your allegation in this count that the five respondents all attended a tour of Maury School together?
A: Their exchange of e-mails.
Q: Did you have any basis other than that?
A: Not that I can recall; no.
Q: Did anyone tell you that they saw this alleged tour of Maury take place?
A: No; no one told me that.
Q: You didn’t see the alleged tour of Maury?
A: No; I wasn’t there.
Q: I’m going to hand you what has been marked as Respondents’ Exhibit Eight. I’m going to open it to the eighth page, and this exhibit was Exhibit 14 to the petition that you filed. And if you look a little more than halfway down the page, there is an e-mail from Scott Howson to Matt Kelly, dated August 7, 2002, at 2:38 p.m. Do you see that?
A: Um-hum.
. . . .
Q: And in that e-mail Scott Howson says, "Since Billy is the only one who has not been through Maury, I’m just going to meet him there Saturday morning at ten." Do you see that?
A: Correct.
Q: Don’t the exhibits that you filed with your petition suggest that the only participants in this tour of Maury were Scott Howson and Billy Withers?
A: Well, this is just based on what Scott has said to Matt, you know. All I can recall is there were numerous e-mails regarding Maury. And. again, I don’t know if the Council members gave me everything. I don’t believe they gave Mr. Shelton everything he requested in his. So, I mean, taking just what you say regarding Scott to Matt, since Billy is the only one who has not been to Maury, I’m just going to meet him there Saturday at ten. . . That’s not to say other Council members didn’t attend the meeting.
Q: When you say you are relying on the e-mails, doesn’t the e-mails say that it’s just going to be Howson and Billy Withers on that tour?
A: It’s possible, but it’s not definitive.
Q: Does it say --
A: (interjecting) It’s possible, but it’s not definitive.
Q: But does it say that anyone else is going to be on this tour?
A: According to Scott Howson’s e-mail, no.
. . . .
Q: And then in Exhibit Fourteen, your petition, there is an e-mail that’s the next day [after e-mails discussing a potential larger tour that would include the media] where, in fact, Scott Howson says he is just going to take Billy Withers through; right?
A: Right. But that’s not to say the others didn’t show up.
Q: I mean, you didn’t even allege that on information and belief, so tell me what factual investigation you made that satisfied you that all five of these respondents went on a tour of Maury?
A: I think it’s just based on an e-mail of the -- Yeah; I think it’s based on this e-mail of August 6, 2002, from Scott Howson to the Mayor, Matt Kelly, Tom Fortune, and Billy Withers. Just like the meeting at Charlotte Street, people tend to show up even if there is not a formal request. And, you know, in the case of Charlotte Street, three members showed up. In this case, it was my belief based on that August 6, that perhaps all five showed up.
Q: But you don’t have a fact that you can point to that supported your allegation that all five, in fact, showed up?
A: No.
Timpone Dep. at 44-51 (copy attached as Exhibit D to O’Connor Aff.).
C. Petitioners Asserted Their Allegations Concerning a Secret FRED Bus Meeting Without Any Basis in Fact and Without a Reasonable Inquiry
In Count XVI of their petition, Petitioners allege that the five Respondents conducted a clandestine meeting aboard a FRED bus to discuss public business, and that the five Respondents boarded and exited this FRED bus at different stops in order to conceal the fact that they were conducting an illegal meeting. Once again, discovery in this action has demonstrated that Petitioners completely disregarded their obligation to conduct a reasonable inquiry into the factual basis for their claims. Petitioners Jenkins and Shelton admittedly had no knowledge of any basis -- credible or not -- for asserting that this clandestine FRED bus meeting took place. Petitioner Timpone testified that he was told something about a clandestine FRED bus meeting by Susan Spears, but he was unable to provide any details as to what Ms. Spears supposedly told him. Petitioner Timpone also relied on the always reliable "word on the street" that such a meeting occurred, although Mr. Timpone was unable to identify a single person other than Ms. Spears who supposedly communicated these "rumors" to Mr. Timpone.
What is clear, however, is that Mr. Timpone sent a rather obnoxious e-mail to Respondent Howson, demanding that Mr. Howson respond to Mr. Timpone’s allegations concerning a supposed FRED bus meeting within twenty-four hours. In response, Mr. Howson sent Mr. Timpone an e-mail categorically denying that he had ever participated in a clandestine FRED bus meeting, and further denying that he had been on a FRED bus for any occasion other than the publicly-noticed trip by the entire City Council to Northern Virginia. Having been placed on notice of Mr. Howson’s categorical denial, Mr. Timpone did not conduct any inquiry to determine whether there was any credible basis for his allegations concerning a clandestine meeting on a FRED bus in which the Respondents all entered and left the bus at separate stops to hide the fact of their meeting.
Thus, a review of the three Petitioners’ deposition testimony reveals that they asserted their scandalous allegations of an intentionally illegal meeting conducted by all five Respondents on a FRED bus without having conducted any reasonable inquiry to ensure that these allegations were well grounded in fact before asserting Count XVI against five elected public officials. The excerpts quoted below shed considerable light on the "quality" of Petitioners’ investigation:
1. Petitioner Jenkins
Q: So, do I understand that this FRED bus meeting -- and I may be incorrect now but I ask you, to the best of your knowledge, this is information that’s been gathered by Mr. Shelton?
A: Some.
Q: All right. Some. Who did the other some, the other part?
A: Mr. Timpone.
Q: Mr. Timpone. So would it be fair to say that Mr. Timpone and Mr. Shelton together have gathered information in support of this count; is that right?
A: Correct.
Q: And you have not?
A: Not to any degree.
. . . .
Q: This allegation that these councilmen entered the bus separately and left separately, okay, where did that come from, Mr. Jenkins?
A: I would presume by whomever was present.
Q: Well, somehow quite bizarrely there was a reporter on a bus. The reporter observed what councilmen entered, and I guess the bus drove on somewhere and then another one entered and so forth? And then they had a discussion as the bus was being driven about, and then left the bus one-by-one? Is that your understanding?
A: That’s my understanding, but I’m not the one on trial.
Q: Well, you’re making serious charges, Mr. Jenkins.
A: And they will be substantiated.
Q: That’s what I’m trying to do. What do you have, or your colleagues have; namely, Timpone and/or Shelton, that would provide the basis? What good inquiry has been made to form the basis of this rather bizarre account of a meeting on a bus?
A: I believe Mr. Shelton would have more information.
Q: All right. Since the bringing of this petition and the amended petition, has any other information come to your attention regarding any persons who have knowledge of this alleged illegal meeting on the FRED bus?
A: No.
Q: Do you know of any document that exists, any writing, any writing whatsoever, that speaks to several councilmen entering the FRED bus for the purpose of conducting public business?
A: Not that I’m aware of.
Jenkins Dep. at 117-24.
2. Petitioner Shelton
Although Petitioner Jenkins testified that he essentially accepted, without inquiry, that Petitioner Shelton had a reasonable basis for alleging that this clandestine FRED bus meeting took place, Petitioner Shelton was unable to identify a single fact that supported the extraordinary allegations contained in Count XVI of the petition:
Q: Now, you looked over this count concerning the FRED bus meeting prior to filing the petition; right?
A: Sure.
Q: And you believed it to be true and accurate?
A: From the information, I believe; yeah.
Q: And you stand behind the allegations in this count as you are sitting here today, don’t you?
A: Yes.
. . . .
Q: If you didn’t see any of these people on the FRED bus, did somebody tell you they saw the respondents on the FRED bus?
A: I don’t recall how this line came through.
Q: Well, you have gone and you have alleged that these people violated the law by holding a secret, illegal meeting; and I want you to tell me what facts you have to support your allegation that this secret, illegal meeting took place on the FRED bus.
A: I don’t recall how that came about.
Q: Can you tell me one fact that you have gleaned from any source that could lead to the conclusion that this isn’t just something you have made up?
A: I don’t make things up.
Q: Then tell me what facts you have to support a claim that this illegal, secret meeting took place on the FRED bus?
A: I just don’t recall how that came back.
Q: You can’t remember if anybody told you about this meeting?
A: No, I just don’t remember.
Q: You can’t think of any e-mail that --
A: (interjecting) I certainly didn’t invent it.
Q: Well, then, give me a fact that will lead to the conclusion that you didn’t just invent it? What is the source of your allegation?
A: I just can’t recall how that came in.
Q: So, sitting here today you can’t think of a single witness who is going to place these members of the City Council on the FRED bus for this secret, illegal meeting?
A: No.
Q: And you state in paragraph 141, "Upon information and belief, the defendants boarded the FRED bus separately and left separately in an attempt to conceal their secret meeting." Where did you get that information from?
A: A lot of this stuff was being talked about, but I don’t know any of the people who were talking about it. It would come back to me and I would hear something here and hear something there, but I just don’t remember any straight line to tell you as far as who came up with the facts, but they did. But I can’t remember.
Shelton Dep. at 41-48. It bears repeating that Petitioner Shelton flatly refused to identify even one person who provided him with any facts concerning the subject matter of this lawsuit, even after his attorney stated on the record that Respondents were entitled to such information. See Shelton Dep. at 29-35.
3. Petitioner Timpone
As discussed above, Petitioner Timpone testified that he had been told something about a clandestine FRED bus meeting by Susan Spears, but he was unable to elaborate as to the specifics of what he had been told by Ms. Spears. Moreover, Mr. Timpone conducted absolutely no inquiry into the bona fides of these allegations even after Mr. Howson had categorically denied that a clandestine FRED bus meeting occurred. Indeed, in responding to Mr. Timpone’s e-mail, Mr. Howson not only categorically denied that a clandestine FRED bus meeting occurred, but asked Mr. Timpone to identify a basis for his assertion that such a meeting occurred:
Pat, it is impossible to answer questions about an event that did not take place. You have taken the very bold step of publicly accusing members of the City Council of wrongdoing when you really don’t have any basis for that accusation. So let me see what kind of a man you are. Let me ask you a simple question that shouldn’t take 24 hours to answer.
1. What is the basis for your public accusation that I attended an illegal meeting on a FRED bus?
Please remember that your response will be part of the public record.
See Exhibit E to O’Connor Aff. Mr. Timpone did not respond to Mr. Howson’s request that Mr. Timpone state a factual basis for his accusation. At his deposition, it became clear why Mr. Timpone did not state the basis for his accusation, because he had conducted no reasonable inquiry as to whether the charges he leveled had any basis in fact:
Q: What was the basis that you had at the time you filed this petition for making the allegations that you make in paragraphs 140 and 141 [of the petition]?
A: It had been brought to my attention by several people, basically rumors on the street; but I heard them at a 7-Eleven store, I think through a person, Susan Spears, that, in fact, the defendants had, in fact, at sometime -- that time was unclear to me -- that what’s alleged took place, took place; that they had met on a bus. I believe it might have also been -- I’m not sure of this, so I’m not going to speculate. The son-in-law of Joe Wilson may have mentioned it to someone, but I do know being over at a 7-Eleven store on Lafayette Boulevard I had heard some people in the store talking about this and, I believe, from Susan Spears. She had heard rumors of it and that’s why these allegations are in there.
. . . .
Q: When did you have this conversation with Susan Spears?
A: I’m really not quite sure. It would be sometime after them taking office, sometime prior to my coming before Council. I think August, or somewhere between July and August, middle of August.
Q: Where did you have this conversation with Susan Spears?
A: It was probably at the work session next door. I can’t recall.
Q: You can’t recall when you talked to her about this?
A: No, sir.
. . . .
Q: Did she tell you how she came to have an understanding that there was a supposed meeting on a FRED bus with the five respondents?
A: I believe she just heard it out on the street. It’s a small town; rumors travel.
Q: But you didn’t inquire from her, prior to filing this lawsuit, to make sure that she had some kind of reasonable basis for saying that this meeting occurred?
A: I don’t want words put in my mouth, but I would say, no, I didn’t, you know, follow back to her. It’s just based on things that I heard out there that led me to a belief that, in fact, they had met on a FRED bus to discuss public business. And to the best of my knowledge and belief, based on what I heard, I believed that a meeting possibly had taken place.
Q: And what did you do to follow up and satisfy yourself that a meeting had taken place before filing these charges against five elected officials?
A: I obtained an attorney.
Q: So you didn’t do anything to investigate whether there was a factual basis for what you were saying that these five elected officials did?
A: I believe there was a factual basis just on other people stating that they believed that a meeting had taken place.
Q: But you personally didn’t do anything to follow up on that to see if it was true or not?
A: No, sir; I didn’t.
. . . .
Q: You actually did one thing, didn’t you? Didn’t you send Scott Howson --
A: Yes.
Q: a letter asking about it?
A: I sent him an e-mail. It was on August 15th.
Q: And Scott Howson categorically denied there had been any FRED bus meeting; right?
A: Based on what he sent me, yes. Whether that is true or not, I don’t know.
. . . .
Q: Do you have anything you can tell me more substantive than rumors on the street that gave you a basis for believing that a secret, illegal meeting occurred on a FRED bus?
A: Just what I was told by people or I had heard.
Q: What people?
A: As I said, Susan Spears is the only one that I can recall. But I do recall on at least two other occasions having heard it; one at a 7-Eleven store. The other I can’t recall.
Q: Who said something at the 7-Eleven store?
A: It was some customers that were just before me going to pay.
Q: You don’t know who they were?
A: No; of course not.
. . . .
Q: In Count 16, you’ve alleged there was an illegal FRED bus meeting. Who participated in this illegal FRED bus meeting?
A: Well, I believe it to be the respondents in this case.
Q: All five?
A: Possibly.
Q: Well, can you do any better than possibly?
A: No.
Q: Can you tell me any one of the five respondents that definitely participated in this illegal FRED bus meeting that you have alleged in Count 16?
A: No, sir; I can’t.
Q: Can you tell me specifically what they talked about on this supposed FRED bus meeting that you allege occurred?
A: No, sir.
Q: Then how is it that you could allege in paragraph 140 that upon information and belief this meeting was for the purpose of discussing City business, so that a consensus could be reached by the defendants before meeting with Councilman Wilson and Councilman-elect Turner, when you just told me you don’t have any idea what they were talking about?
A: Well, specifically, I don’t. I believe based on what I heard that perhaps City business was being discussed and being discussed on the FRED bus.
. . . .
Q: You didn’t ask any of these people who told you these rumors what the five elected officials, that you have sued, were supposedly talking about during this FRED bus count that you have alleged here?
A: That is correct.
. . . .
Q: Okay; in paragraph 143 you say, upon information and belief five respondents deliberately held this meeting secretly and privately in a knowing, willful, and deliberate attempt to avoid public scrutiny and decide public business without the input of all the Council members and the public. Did somebody tell you that?
A: I believe it’s a standard thing that when we put in a -- you know, a count, about upon my information and belief. Since Mr. Howson didn’t really respond to my, you know, complete FOIA request with any real information, other than saying no, no other information took place, but other people have said, rumors, that a meeting took place, I believe there was a secret, private meeting; and therefore, it would have been an attempt to avoid public scrutiny as required by FOIA to discuss public information.
Q: Let’s go back to Respondents’ Exhibit Nine. I’m specifically concerned with Scott Howson’s response to you on the first page of that exhibit.
A: Um-hum.
Q: He says, "To the best of my recollection, the last time I was on a FRED bus was about three or four years ago to attend with the City Manager and several Council members, a Regional Elected Officials quarterly dinner in Spotsylvania County at Fawn Lake. Now, you had that information from Mr. Howson in front of you on August 15, 2002; right?
A: Um-hum.
. . . .
Q: Yet you alleged that he had a secret and illegal meeting sometime in July or August this year?
A: Correct.
Q: So, you would agree that that’s inconsistent with what Mr. Howson told you in his e-mail response?
A: I would agree that it is inconsistent only insofar as what he stated. That might have been a statement that he was being untruthful, you know. I have to take into consideration what he said as to what I heard.
. . . .
Q: Prior to filing this lawsuit --
A: Um-hum.
Q: -- you had heard from Scott Howson who told you that there was no secret FRED bus meeting?
A: Correct.
Q: And my question is, did you contact Susan Spears in any way to try and collect facts that would satisfy you that Scott Howson was lying in his e-mail response to you, and that she was telling you the truth regarding this rumor?
A: No.
Q: And did Susan Spears tell you where this -- where she heard this rumor?
A: No.
Q: Did you ask?
A: No.
. . . .
Q: But you went off and you sued these five respondents and charged them with violating the law anyway, didn’t you?
A: Correct.
Timpone Dep. at 9-32.
D. Petitioners Alleged in Count XVIII That An Illegal Meeting Occurred To Discuss the Homeless Shelter Without Any Factual Basis and Without Conducting a Reasonable Inquiry
In Count XVIII, Petitioners allege that Respondent Tom Fortune requested a private meeting with Respondents Beck, Howson, Withers, and Kelly, and that this request occurred at a September 17, 2002 City Council working session. Of course, Mayor Beck was not even at this working session, making it impossible for Mr. Fortune to request anything of Mayor Beck at this working session. Perhaps even more troublesome, Petitioners allege, upon information and belief, that this supposed requested meeting actually occurred. When Respondents took Petitioners’ depositions to identify the basis for Petitioners’ stated "information and belief" that a secret, illegal meeting occurred to discuss the homeless shelter, Respondents learned that Petitioners had absolutely no facts to support this claim, believing that they could just invent scandalous charges, file them in this Court, and then take discovery to see if there was any basis to the claims that they had invented.
1. Petitioner Jenkins
Consistent with his "inquiry" into the factual basis for Counts XV and XVI, Petitioner Jenkins had no facts to support his claim that Respondents had conducted a secret meeting to discuss the homeless shelter:
Q: Did you hear Tom Fortune ask to meet privately with these defendants?
A: Not that I recall.
Q: So, I take it when this case goes to trial on December 13, if you’re asked this question, your answer is going to be you can’t recall; is that right?
A: That’s correct.
Q: All right. Now, we’re talking specifically about the Homeless Shelter now. That was the purpose of the initiating of this conversation by Fortune. Do you know the identity of a person who heard Tom Fortune ask to meet privately?
A: I can’t recall.
Q: And I take it that will be your testimony on December 13th - -
A: (interjecting) Unless I recall something.
. . . .
Q: You go on to say in this count that after Mr. Fortune requested a meeting, that there was a meeting, secretly and privately, in a knowing, willful, and deliberate attempt to avoid public scrutiny, to decide City business without the input of all Council members and the public. That’s the charges you made, and I would like to know what’s the basis for that? First, when was this private meeting held?
A: I believe it speaks for itself.
. . . .
Q: The meeting to -- this illegal contempt -- this awful meeting to avoid the Homeless Shelter without the public knowing what’s going on, this violation of FOIA. Where did it take place?
. . . .
A: I don’t recall the exact place.
Q: Do you recall the date?
A: No.
Q: Do you recall who was at the meeting?
A: More than two members of the Council.
. . . .
Q: Does Mr. Shelton, to the best of your knowledge, have more information about this count than you do?
A: Yes.
Q: To the best of your knowledge, does Mr. Timpone have more information about this count than you do?
A: Yes.
Q: Have they revealed to you the name of any person who has knowledge -- has actual knowledge about this meeting that you have alleged?
A: I don’t recall.
. . . .
Q: Mr. Jenkins, I’m asking you, that if your life depended on it, and your life depended on it, and someone said to you, Mr. Jenkins, what do you know about this stuff that you’ve charged these men with; and you were going to give an answer, what would your answer be?
A: I’m not sure.
Jenkins Dep. at 136-50.
2. Petitioner Shelton
Petitioner Shelton’s deposition testimony similarly did not yield even one piece of evidence that supported a conclusion that Petitioners did not simply fabricate their claim that the five Respondents had conducted a secret meeting to discuss the homeless shelter:
Q: Okay. In paragraph 157, you allege on information and belief defendants deliberately held this meeting [to discuss the homeless shelter]. What is your information?
A: It’s just a pattern that’s been going on, and on, and on, and on. And you have to be pretty -- well, anyway, it’s a pattern that’s been going on, and on, and on. The whole idea was to get things done without -- and I know I’m not supposed to be talking it -- without, number one, without bringing in two members of the Council, Wilson and Hashmill Turner. And the other is not to let the public really know about it, and that’s exactly what has been done.
Q: Well, tell me, where did this meeting take place that you allege in paragraph 157 occurred?
A: I don’t know.
Q: Who attended?
A: I don’t know.
Q: What was discussed?
A: But I know Joe Wilson and Hashmill Turner wasn’t there.
. . . .
Q: You don’t even know if this meeting even occurred, do you?
A: I’m pretty sure it did.
Q: Based on what?
A: I don’t know.
Shelton Dep. at 69-71.
3. Petitioner Timpone
Petitioner Timpone also was unable to identify a factual basis for the allegations in Count XVIII that Respondents conducted a secret meeting concerning the homeless shelter:
Q: You allege in paragraph 157 that this meeting Fortune supposedly requested actually took place; right?
A: I believe it could have, yes, based on the request by Dr. Fortune.
Q: That’s not my -- My question is you allege that upon information and belief it did happen?
A: Um-hum.
. . . .
Q: Okay; what is your information that provides a factual basis for alleging that such a meeting took place?
A: Just, again, rumors that were out there on the street.
Q: Did you do anything to follow up on these rumors?
A: No, sir.
Q: Why not?
A: I don’t have the time, the money, or the effort to do that. I’m not an investigator.
Q: But you went off and you sued five elected public officials and charged them with having this meeting, but you didn’t have the time, or the inclination to conduct any sort . . . of investigation?
. . . .
A: That is specifically what discovery is for.
Timpone Dep. at 42-43.
E. Sanctions Are Appropriate With Respect to Counts XV, XVI, and XVIII
As the preceding description of Petitioners’ deposition testimony demonstrates, Petitioners’ assertion of Counts XV, XVI, and XVIII was reckless at best, malevolent at worst. In each of these counts, Petitioners charged the five Respondents, all of whom are elected public officials, with intentionally violating the law by holding secret face-to-face meetings, and taking affirmative steps to cover their tracks. In their demurrers, Respondents asserted that these face-to-face meetings simply never occurred, and that Petitioners had no facts to support their allegations. Nevertheless, Petitioners fought off these demurrers by contending that the counts met the minimum pleading standard, even though Petitioners knew that they did not have one solid fact to support their allegations. The purpose of Section 8.01-271.1 is to require litigants and their counsel to undertake a reasonable inquiry to ensure that there is a factual basis for claims before they are asserted. Finn, 527 S.E.2d at 435. Here, no inquiry took place before Petitioners impugned the character of five elected officials by filing these scurrilous charges of knowing misconduct in public office. If sanctions are not warranted here, then they are never warranted.
With respect to Count XV, none of the Petitioners is able to identify a single fact that supports the conclusion that anyone other than Respondents Howson and Withers went on a tour of Maury school, a tour that cannot constitute a meeting under FOIA because there were less than three members of the City Council present. Indeed, the very exhibits Petitioners filed with their petition included an e-mail in which Scott Howson specifically stated that he was going to take just Mr. Withers on a tour of Maury instead of the larger, public tour that had been discussed. In response to that fact, Petitioner Timpone lamely asserted that he was free to allege an illegal meeting because it was always possible that another member of the City Council showed up for the tour, although he had no evidence to suggest that this occurred.
In Count XVI, Petitioners claimed that all five Respondents surreptitiously entered a FRED bus -- all entering at different stops to conceal their intention to have a meeting on the bus. Neither Petitioner Jenkins nor Petitioner Shelton was able to identify one fact in support of this allegation or to identify the source of the information that supposedly supported the inclusion of Count XVI in the petition. Petitioner Timpone’s "inquiry" (if he is to be believed) consisted of his hearing "word on the street" that a clandestine FRED bus meeting occurred, and he admits that he did absolutely nothing to confirm the reliability of these supposed rumors. Even after Respondent Howson denied that such a secret meeting took place, Petitioner Timpone and Respondents did nothing to inquire into the factual basis for Count XVI before charging the five Respondents with intentional misconduct in office.
With respect to Count XVIII, Petitioners allege "upon information and belief" that the five Petitioners had a secret meeting to discuss the homeless shelter. However, none of the Petitioners could identify a single fact that supported their conclusion that such a meeting occurred. They could not identify a witness, a date, or a place where such a meeting supposedly took place.
For each of these counts, Petitioners have displayed a disturbing attitude that they were free to assert claims for which they had no basis in fact because they could determine whether such a basis existed through the discovery process. Indeed, Petitioner Timpone defiantly testified that he did not have the time, money, or effort to check into the veracity of his claims before filing suit against five public officials in which he charged these officials with intentional malfeasance in office. Timpone Dep. at 43. This is precisely the type of litigation misconduct that Section 8.01-271.1 is designed to prevent and punish. Therefore, the Court should sanction Petitioners by requiring them to pay the attorneys fees and costs incurred in defending Respondents against Counts XV, XVI, and XVIII. The only way that the Court can deter Petitioners from continuing to file baseless claims against their political opponents is to sanction them for failing to meet their obligations under § 8.01-271.1 to conduct a reasonable inquiry into the factual basis for their claims.
III. CONCLUSION
For the foregoing reasons, the Court should impose sanctions on Petitioners pursuant to Section 8.01-271.1 of the Virginia Code because Petitioners asserted Counts XV, XVI, and XVIII without having any factual basis for the allegations in those counts, and without conducting a reasonable inquiry as to the veracity of the allegations in those counts.
Respectfully submitted,
________________________________
Howard H. Stahl
Steven K. Davidson (VSB #25210)
John F. O’Connor
Frank H. Griffin IV (VSB #48337)
STEPTOE & JOHNSON LLP
1330 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 429-3000
Attorneys for Respondents Mayor Bill Beck, Vice-Mayor Scott Howson, Councilmember Dr. Tom Fortune, and Councilmember Matt Kelly
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served this 9th day of December, 2002, by hand delivery, on the following counsel of record:
David Zachary Kaufman
KAUFMAN LAW
10625 Jones St., Suite 201-A
Fairfax, VA 22030
Michael Barnsback
DIMURO GINSBURG & MOOK, PC
908 King Street, Suite 200
Alexandria, VA 22314
Attorneys for Petitioners
William M. Sokol
SOKOL & JONES
904 Princess Anne Street, Suite 101
Fredericksburg, VA 22401
Attorneys for Respondent William C. Withers, Jr.
____________________________
John F. O’Connor
THE CITY OF FREDERICKSBURG, VIRGINIA
)
GORDON SHELTON, et al, )
)
Petitioners, )
)
v. ) Chancery No. CH02-428
)
BILL BECK, individually as well as in )
his capacity as Mayor of the City of )
Fredericksburg, VA, et al., )
)
Respondents. )
)
MEMORANDUM OF RESPONDENTS MAYOR BILL BECK,
VICE-MAYOR SCOTT HOWSON, COUNCILMEMBER DR. TOM
FORTUNE, AND COUNCILMEMBER MATT KELLY IN SUPPORT OF
THEIR MOTION FOR SANCTIONS PURSUANT TO VA. CODE § 8.01-271.1
I. INTRODUCTION
Respondents Bill Beck, Scott Howson, Tom Fortune, and Matt Kelly hereby move for sanctions against Petitioners based on Petitioners’ assertion of unsupported and baseless claims of official misconduct by Respondents in Counts XV, XVI, and XVIII of the petition. With respect to each of these counts, Petitioners alleged that Respondents engaged in intentional violations of Virginia’s FOIA statute, Va. Code § 2.2-3700, et seq., by having secret face-to-face meetings. Indeed, Petitioners even made specific allegations that Respondents took particular steps to hide these supposed face-to-face meetings from public scrutiny. However, none of these supposed meetings took place. Petitioners had no basis for asserting that the illegal meetings alleged in Counts XV, XVI, and XVIII occurred. Indeed, discovery has demonstrated that Petitioners failed to conduct even a minimal inquiry to determine whether these allegations had a basis in fact before charging five elected public officials with knowing malfeasance in office.
First, after the Court sustained Respondents’ demurrer with respect to Count XV, Petitioners filed an amended Count XV alleging as a "fact" that all five Respondents participated in a tour of the Maury school "to determine its possible suitability for the various proposals that have been made for using this public building." See Amended Count XV, at ¶ ¶ 28-30. When Petitioners were deposed, however, they admitted that they had no factual basis for alleging that all five Respondents participated in an unannounced tour of the Maury school, or even that three of the members of the City Council participated in such a tour.
Second, in an allegation designed to titillate the public, but without any basis in fact, Petitioners allege in Count XVI of their Petition that Respondents participated in an illegal, secret meeting aboard a FRED bus. In a series of allegations more appropriate for a low-grade spy novel, Petitioners allege: (1) that, upon information and belief, Respondents had a meeting aboard a FRED bus at some point between July 15, 2002 and August 15, 2002; (2) that the purpose of this meeting was to "discuss[] City business so that a consensus could be reached by the [Respondents] before meeting with Councilman Wilson and Councilman-elect Turner"; (3) that, upon information and belief, Respondents boarded the bus separately and left separately "in an attempt to conceal their secret meeting"; (4) that Respondents deliberately did not include Councilmen Wilson and Turner in this secret FRED bus meeting; and (5) that, upon information and belief, Respondents "deliberately held this meeting secretly and privately in a knowing, willful and deliberate attempt to avoid public scrutiny and decide City business without the input of all the council members and the public." Petition at ¶ ¶ 140-143.
The principal problem with the FRED bus allegations is that they are entirely the product of Petitioners’ imaginations. After being repeatedly implored in their depositions to provide a basis -- no matter how slight -- for making these serious allegations against Respondents, Petitioners were forced to admit that they are unable to point to a single piece of evidence that would support their assertion of such charges, or of any reasonable inquiry Petitioners made concerning the veracity of their allegations.
Third, in Count XVIII, Petitioners allege that, upon information and belief, Respondents conducted a secret meeting to discuss "City business as it pertained to the homeless shelter so that a consensus could be reached by the [Respondents]." Petition at ¶ 157. Notably absent from the petition is a date when this secret meeting supposedly occurred, the location of this secret meeting, or any details concerning the supposed discussions. When pressed during their depositions to disclose the "information and belief" that supposedly supports an allegation that this alleged meeting occurred, Petitioners had absolutely nothing to offer.
Recognizing that the allegations in Counts XV, XVI, and XVIII are entirely lacking in a factual basis, and are in fact false, Petitioners are seeking to avoid having to answer for their conduct by dismissing each of these counts a few days before trial. It is not sufficient, however, for Petitioners to assert baseless charges without any reasonable pre-filing inquiry, and then simply to dismiss the counts after conducting discovery. Indeed, there is a common thread running through the depositions of all three Petitioners, in that their attitude appears to be that they did not need to have any basis before filing claims against Respondents because they could simply take discovery to determine -- after the fact -- whether there was any merit to the unsubstantiated allegations they filed.
If the Court does not sanction Petitioners for recklessly filing allegations of official malfeasance and corruption, the Court will send Petitioners and their allies a clear message that they do not need a basis for filing similar such allegations against Fredericksburg’s elected officials. The message will be that Petitioners have an unfettered ability to file baseless and unsupported claims against their elected officials, and thereby subject those elected officials to burdensome discovery and harassing depositions, because there is no sanction for filing scandalous charges that have not been the subject of a reasonable pre-filing investigation. The only way to stop the filing of bad-faith claims such as those Petitioners asserted against Respondents is to demonstrate that Petitioners are not entitled to a "free shot" at their elected officials -- that the law places certain obligations on a plaintiff before he may assert claims in a lawsuit, and there is a heavy price to pay if a plaintiff ignores these obligations. Therefore, the Court should order that Petitioners are liable for the attorneys fees and costs incurred by Respondents in litigating Counts XV, XVI, and XVIII. The people of Fredericksburg should not be forced to underwrite the cost of Petitioners’ litigation folly.
II. ANALYSIS
A. The Requirements of and Policies Behind Va. Code § 8.01-271.1
Va. Code § 8.01-271.1 provides in pertinent part:
Every pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name . . . .
The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . . .
. . . .
If a pleading, motion, or other paper is signed or made in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed the paper or made the motion, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper or making of the motion, including a reasonable attorney’s fee.
Va. Code § 8.01-271.1. Petitioners’ petition, as well as the amended Count XV, were signed by counsel of record for Petitioners. Moreover, Petitioner Timpone submitted an affidavit with Petitioners’ petition in which he asserted that the allegations, other than the e-mails attached to the petition, "are true to the best of my knowledge, information and belief." Petition at 28.
The Virginia Supreme Court recently has identified some of the policies underlying the availability of sanctions where allegations are not well-grounded in fact or in law: "The possibility of a sanction can protect litigants from the mental anguish and expense of frivolous assertions of unfounded factual and legal claims and against the assertions of valid claims for improper purposes." Gilmore v. Finn, 259 Va. 448, 527 S.E.2d 426, 435 (2000). Moreover, "the factual and legal viability of separate claims are individually assessed for sanction purposes." Id. at 436; Nedrich v. Jones, 245 Va. 465, 472-77, 429 S.E.2d 201, 205-07 (1993). Therefore, the relevant inquiry concerns the factual basis that Petitioners had for asserting that Respondents -- all of whom are public officials -- actually engaged in the conduct alleged in Counts XV, XVI, and XVIII of the Petition.
B. Petitioners Asserted Their Claims Respecting the Maury School Without Any Factual Basis and Without Reasonable Inquiry
In Count XV of their petition, Petitioners alleged that Respondents conducted a secret illegal meeting at the Maury school in violation of FOIA. However, discovery in this action has confirmed that Petitioners had absolutely no basis for asserting that three or more of the Respondents toured Maury school together. Indeed, Exhibit 14 to Petitioners’ own petition refutes such a contention, as that exhibit contains an e-mail in which Respondent Howson states that he intends to take only Respondent Withers on a tour of Maury school. A tour involving just Respondents Howson and Withers on its face cannot constitute a meeting under FOIA because "meetings" under FOIA require the attendance of at least three members of a public body. The Howson e-mail states as follows: "Since Billy [Withers] is the only one who’s not been through Maury I’m just going to meet him there Saturday morning at 10." See E-mail from Scott Howson to Matt Kelly dated Aug. 7, 2002, at 2:38 p.m. (attached as Exhibit A to the O’Connor Affidavit).
Although the documents filed by Petitioners in this case refute the notion that three members of the City Council -- much less all five Respondents -- conducted a tour of Maury School, Petitioners alleged in their amended Count XV that all five Respondents attended, and did not even characterize this assertion as being "upon information and belief." Given this allegation that an illegal meeting occurred, when Respondents took the depositions of Petitioners, Respondents sought to discover the basis for Petitioners’ allegations. Petitioners’ testimony as to the factual "basis" is set out below:
1. Petitioner Jenkins
During his deposition, Petitioner Jenkins testified as follows concerning the factual basis for his allegation that an illegal tour of Maury school occurred:
Q: Now, your amended petition goes on to say that, indeed, more than two councilmen toured the Maury School building and conducted public business; is that right?
A: Right.
Q: Were you present at the Maury School building at any time where you saw more than two councilmen enter the building?
A: No.
. . . .
Q: Do you know of any person who claims to have seen more than two councilmen within the Maury School Building after July 2?
A: I can’t recall.
Q: And I need an answer to this question. You’re a Petitioner here and I’m assuming this is something of importance to you. You have charged another public official with a violation of law; correct?
A: If that’s what -- Right.
Q: And I assume that if you knew that somebody had said to you, by God, I was at Maury School on August 1 and there was Billy, and Tom, and Matt, the Mayor there in the building, you would recall that now, wouldn’t you?
A: I recall it in The Free Lance-Star.
Q: You recall reading something in The Free Lance-Star; is that right?
A: Yes, sir.
Q: Can you tell me the name of any person who you or your co-petitioners intend to testify regarding more than two councilmen being within the Maury School building on or after July 1 of 2002?
A: You’re asking me do I know of any witnesses?
Q: That’s it. That’s it, Mr. Jenkins.
A: Not that I recall.
Jenkins Dep. at 108-10 (copy attached as Exhibit B to O’Connor Aff.). Of course, Petitioners have not produced a copy of the Free Lance-Star article that supposedly provides the factual basis for Petitioner Jenkins’s assertion that he had a factual basis for asserting in amended Count XV that the five Respondents toured Maury school together, and there is no indication that any such newspaper article exists.
2. Petitioner Shelton
Petitioner Shelton’s deposition testimony was no more illuminating concerning the factual basis for Petitioners’ claim that Respondents conducted an illegal meeting at Maury school. After claiming that he had seen an e-mail that confirmed that at least three of the Respondents had toured the Maury school together, Petitioner Shelton was unable to support this claim:
Q: Who went on this tour that you have alleged actually happened?
A: I would certainly think that Scott Howson went.
. . . .
Q: I want to know knowledge from any source whatever that would lead you to say that.
A: But -- but I have a tendency to leave something out or leave somebody out. And I hope you are not going to ask that question because I could go on all day talking about Maury.
Q: I just want to know -- You have said -- you have alleged in suing these five --
A: Right.
Q: -- elected officials --
A: Right.
Q: -- that they went to Maury. And what I’m asking is, tell me who you know went to Maury on this tour that you allege took place?
A: Well, I would certainly say three of them were there.
Q: Which three?
A: Maybe all of them.
Q: Do you have any basis for saying that?
A: Yeah; sure. I can read between the lines here.
Q: And do you know anybody who can say that they saw three or more of the respondents at Maury on a tour?
A: I don’t know, but I expect we will find out soon enough.
Q: What does that mean?
A: Well, we are going to have a trial, aren’t we?
Q: We are. And my question is tell me what you have. As part of our preparation for trial, we are entitled to know what you have evidence of; and so far I have asked you who went to Maury, and you are telling me it was probably at least three, maybe 5. I’m asking, do you have somebody who is going to say they saw a tour take place at Maury [other than the Respondents]?
A: Yeah.
Q: Who?
A: I say other than the respondents. This thing is going too long. I was not going to elaborate on anything. I thought that was what you wanted, not to elaborate on it.
Q: No, I want your answer to the question. My question is --
A: (interjecting) My answer to the question is I will stick to what is right here.
. . . .
Q: Who has told you that a meeting took place at Maury with three or more members of the City Council?
A: I have had so much feedback about this particular one that I have forgotten about.
Q: So, you can’t tell me --
A: (interjecting) No.
. . . .
Q: What makes you so sure that at least three members of the City Council would have gone on this tour of Maury that you allege?
A: Everything that I have read in all of these 1500 to 2000 sheets of paper. There is a pattern here, and I would -- I’m saying that Beck was there, Howson was there, and Kelly, Fortune, and Withers.
Q: Why do you say Beck was there?
A: Just normal routine.
Q: So you don’t have -- You didn’t see Beck at Maury?
A: No.
. . . .
Q: Can you identify anyone who is going to say that Beck was at Maury?
A: Not off this list; no.
Q: Off any list?
A: We get lots of calls.
Q: Who have you gotten calls from on this case?
A: Probably thousands of people.
Q: Well, let’s start listing them.
A: No; I can’t remember them, it’s so many of them.
Q: Let’s start listing the ones you know. I realize it will be a non-exclusive list, but tell me who has called --
A: (interjecting) No; I’m not going to name anybody not being able to name them all.
. . . .
Q: What I want to know is tell me the people you can think of who has [sic] given you any information concerning the facts that are alleged in this lawsuit. Sir, name me one person, other than your counsel, Jenkins and Timpone . . . that have [sic] given you any information concerning any of the facts that you have alleged in this lawsuit.
A: To the entire suit?
Q: To the entire suit. Name me one person.
A: You are getting in a situation now, in my opinion, where -- the have-and-have-nots, and that was one thing that I thought the Judge said not to touch.
Q: Has anyone told you that Fortune was at this tour of Maury that you have alleged in your lawsuit?
. . . .
A: Well, I will stick by the e-mails.
Q: So nobody has told you that Fortune attended this tour of Maury that you allege?
A: Nobody has told me, but I -- I will just stick with the e-mails.
. . . .
Q: Has anyone told you that Kelly went on this tour of Maury?
A: No.
Shelton Dep. at 21-36 (copy attached as Exhibit C to O’Connor Aff.).
Moreover, when presented with the e-mail from Respondent Howson to Respondent Kelly, in which Respondent Howson states his intention to take only Respondent Withers on as tour of Maury school, Petitioner Shelton flatly admitted that the exhibits to his own petition refute his claim that three members of the City Council went on a tour of Maury:
Q: So the very exhibit you submitted with your petition contained an e-mail where Howson says he is just going to take Withers over to Maury; isn’t that right?
A: That’s what it says; yes.
Shelton Dep. at 38-39.
Thus, the written record before Petitioners indicated, by Petitioner Shelton’s own admission, that only Respondents Howson and Withers were going to tour Maury school. Yet, Petitioner Shelton was unable (and/or unwilling) to identify a single fact of which he was personally aware, or of which he had been made aware by any other person, that would create a factual basis for asserting that the five respondents conducted a secret meeting at the Maury school in violation of FOIA.
3. Petitioner Timpone
Petitioner Timpone similarly had no facts to support his allegation in Count XV, an allegation that is not even asserted "on information and belief," that the five Respondents actually conducted an illegal meeting at Maury School:
Q: Okay; in paragraph 30 [of Petitioners’ amended Count XV], you allege that all five respondents went on a tour of the Maury School; do you see that?
. . . .
A: Correct.
Q: These amended counts were filed on or about November 8, 2002; and my question is as of November 8, 2002, what was the basis for your allegation in this count that the five respondents all attended a tour of Maury School together?
A: Their exchange of e-mails.
Q: Did you have any basis other than that?
A: Not that I can recall; no.
Q: Did anyone tell you that they saw this alleged tour of Maury take place?
A: No; no one told me that.
Q: You didn’t see the alleged tour of Maury?
A: No; I wasn’t there.
Q: I’m going to hand you what has been marked as Respondents’ Exhibit Eight. I’m going to open it to the eighth page, and this exhibit was Exhibit 14 to the petition that you filed. And if you look a little more than halfway down the page, there is an e-mail from Scott Howson to Matt Kelly, dated August 7, 2002, at 2:38 p.m. Do you see that?
A: Um-hum.
. . . .
Q: And in that e-mail Scott Howson says, "Since Billy is the only one who has not been through Maury, I’m just going to meet him there Saturday morning at ten." Do you see that?
A: Correct.
Q: Don’t the exhibits that you filed with your petition suggest that the only participants in this tour of Maury were Scott Howson and Billy Withers?
A: Well, this is just based on what Scott has said to Matt, you know. All I can recall is there were numerous e-mails regarding Maury. And. again, I don’t know if the Council members gave me everything. I don’t believe they gave Mr. Shelton everything he requested in his. So, I mean, taking just what you say regarding Scott to Matt, since Billy is the only one who has not been to Maury, I’m just going to meet him there Saturday at ten. . . That’s not to say other Council members didn’t attend the meeting.
Q: When you say you are relying on the e-mails, doesn’t the e-mails say that it’s just going to be Howson and Billy Withers on that tour?
A: It’s possible, but it’s not definitive.
Q: Does it say --
A: (interjecting) It’s possible, but it’s not definitive.
Q: But does it say that anyone else is going to be on this tour?
A: According to Scott Howson’s e-mail, no.
. . . .
Q: And then in Exhibit Fourteen, your petition, there is an e-mail that’s the next day [after e-mails discussing a potential larger tour that would include the media] where, in fact, Scott Howson says he is just going to take Billy Withers through; right?
A: Right. But that’s not to say the others didn’t show up.
Q: I mean, you didn’t even allege that on information and belief, so tell me what factual investigation you made that satisfied you that all five of these respondents went on a tour of Maury?
A: I think it’s just based on an e-mail of the -- Yeah; I think it’s based on this e-mail of August 6, 2002, from Scott Howson to the Mayor, Matt Kelly, Tom Fortune, and Billy Withers. Just like the meeting at Charlotte Street, people tend to show up even if there is not a formal request. And, you know, in the case of Charlotte Street, three members showed up. In this case, it was my belief based on that August 6, that perhaps all five showed up.
Q: But you don’t have a fact that you can point to that supported your allegation that all five, in fact, showed up?
A: No.
Timpone Dep. at 44-51 (copy attached as Exhibit D to O’Connor Aff.).
C. Petitioners Asserted Their Allegations Concerning a Secret FRED Bus Meeting Without Any Basis in Fact and Without a Reasonable Inquiry
In Count XVI of their petition, Petitioners allege that the five Respondents conducted a clandestine meeting aboard a FRED bus to discuss public business, and that the five Respondents boarded and exited this FRED bus at different stops in order to conceal the fact that they were conducting an illegal meeting. Once again, discovery in this action has demonstrated that Petitioners completely disregarded their obligation to conduct a reasonable inquiry into the factual basis for their claims. Petitioners Jenkins and Shelton admittedly had no knowledge of any basis -- credible or not -- for asserting that this clandestine FRED bus meeting took place. Petitioner Timpone testified that he was told something about a clandestine FRED bus meeting by Susan Spears, but he was unable to provide any details as to what Ms. Spears supposedly told him. Petitioner Timpone also relied on the always reliable "word on the street" that such a meeting occurred, although Mr. Timpone was unable to identify a single person other than Ms. Spears who supposedly communicated these "rumors" to Mr. Timpone.
What is clear, however, is that Mr. Timpone sent a rather obnoxious e-mail to Respondent Howson, demanding that Mr. Howson respond to Mr. Timpone’s allegations concerning a supposed FRED bus meeting within twenty-four hours. In response, Mr. Howson sent Mr. Timpone an e-mail categorically denying that he had ever participated in a clandestine FRED bus meeting, and further denying that he had been on a FRED bus for any occasion other than the publicly-noticed trip by the entire City Council to Northern Virginia. Having been placed on notice of Mr. Howson’s categorical denial, Mr. Timpone did not conduct any inquiry to determine whether there was any credible basis for his allegations concerning a clandestine meeting on a FRED bus in which the Respondents all entered and left the bus at separate stops to hide the fact of their meeting.
Thus, a review of the three Petitioners’ deposition testimony reveals that they asserted their scandalous allegations of an intentionally illegal meeting conducted by all five Respondents on a FRED bus without having conducted any reasonable inquiry to ensure that these allegations were well grounded in fact before asserting Count XVI against five elected public officials. The excerpts quoted below shed considerable light on the "quality" of Petitioners’ investigation:
1. Petitioner Jenkins
Q: So, do I understand that this FRED bus meeting -- and I may be incorrect now but I ask you, to the best of your knowledge, this is information that’s been gathered by Mr. Shelton?
A: Some.
Q: All right. Some. Who did the other some, the other part?
A: Mr. Timpone.
Q: Mr. Timpone. So would it be fair to say that Mr. Timpone and Mr. Shelton together have gathered information in support of this count; is that right?
A: Correct.
Q: And you have not?
A: Not to any degree.
. . . .
Q: This allegation that these councilmen entered the bus separately and left separately, okay, where did that come from, Mr. Jenkins?
A: I would presume by whomever was present.
Q: Well, somehow quite bizarrely there was a reporter on a bus. The reporter observed what councilmen entered, and I guess the bus drove on somewhere and then another one entered and so forth? And then they had a discussion as the bus was being driven about, and then left the bus one-by-one? Is that your understanding?
A: That’s my understanding, but I’m not the one on trial.
Q: Well, you’re making serious charges, Mr. Jenkins.
A: And they will be substantiated.
Q: That’s what I’m trying to do. What do you have, or your colleagues have; namely, Timpone and/or Shelton, that would provide the basis? What good inquiry has been made to form the basis of this rather bizarre account of a meeting on a bus?
A: I believe Mr. Shelton would have more information.
Q: All right. Since the bringing of this petition and the amended petition, has any other information come to your attention regarding any persons who have knowledge of this alleged illegal meeting on the FRED bus?
A: No.
Q: Do you know of any document that exists, any writing, any writing whatsoever, that speaks to several councilmen entering the FRED bus for the purpose of conducting public business?
A: Not that I’m aware of.
Jenkins Dep. at 117-24.
2. Petitioner Shelton
Although Petitioner Jenkins testified that he essentially accepted, without inquiry, that Petitioner Shelton had a reasonable basis for alleging that this clandestine FRED bus meeting took place, Petitioner Shelton was unable to identify a single fact that supported the extraordinary allegations contained in Count XVI of the petition:
Q: Now, you looked over this count concerning the FRED bus meeting prior to filing the petition; right?
A: Sure.
Q: And you believed it to be true and accurate?
A: From the information, I believe; yeah.
Q: And you stand behind the allegations in this count as you are sitting here today, don’t you?
A: Yes.
. . . .
Q: If you didn’t see any of these people on the FRED bus, did somebody tell you they saw the respondents on the FRED bus?
A: I don’t recall how this line came through.
Q: Well, you have gone and you have alleged that these people violated the law by holding a secret, illegal meeting; and I want you to tell me what facts you have to support your allegation that this secret, illegal meeting took place on the FRED bus.
A: I don’t recall how that came about.
Q: Can you tell me one fact that you have gleaned from any source that could lead to the conclusion that this isn’t just something you have made up?
A: I don’t make things up.
Q: Then tell me what facts you have to support a claim that this illegal, secret meeting took place on the FRED bus?
A: I just don’t recall how that came back.
Q: You can’t remember if anybody told you about this meeting?
A: No, I just don’t remember.
Q: You can’t think of any e-mail that --
A: (interjecting) I certainly didn’t invent it.
Q: Well, then, give me a fact that will lead to the conclusion that you didn’t just invent it? What is the source of your allegation?
A: I just can’t recall how that came in.
Q: So, sitting here today you can’t think of a single witness who is going to place these members of the City Council on the FRED bus for this secret, illegal meeting?
A: No.
Q: And you state in paragraph 141, "Upon information and belief, the defendants boarded the FRED bus separately and left separately in an attempt to conceal their secret meeting." Where did you get that information from?
A: A lot of this stuff was being talked about, but I don’t know any of the people who were talking about it. It would come back to me and I would hear something here and hear something there, but I just don’t remember any straight line to tell you as far as who came up with the facts, but they did. But I can’t remember.
Shelton Dep. at 41-48. It bears repeating that Petitioner Shelton flatly refused to identify even one person who provided him with any facts concerning the subject matter of this lawsuit, even after his attorney stated on the record that Respondents were entitled to such information. See Shelton Dep. at 29-35.
3. Petitioner Timpone
As discussed above, Petitioner Timpone testified that he had been told something about a clandestine FRED bus meeting by Susan Spears, but he was unable to elaborate as to the specifics of what he had been told by Ms. Spears. Moreover, Mr. Timpone conducted absolutely no inquiry into the bona fides of these allegations even after Mr. Howson had categorically denied that a clandestine FRED bus meeting occurred. Indeed, in responding to Mr. Timpone’s e-mail, Mr. Howson not only categorically denied that a clandestine FRED bus meeting occurred, but asked Mr. Timpone to identify a basis for his assertion that such a meeting occurred:
Pat, it is impossible to answer questions about an event that did not take place. You have taken the very bold step of publicly accusing members of the City Council of wrongdoing when you really don’t have any basis for that accusation. So let me see what kind of a man you are. Let me ask you a simple question that shouldn’t take 24 hours to answer.
1. What is the basis for your public accusation that I attended an illegal meeting on a FRED bus?
Please remember that your response will be part of the public record.
See Exhibit E to O’Connor Aff. Mr. Timpone did not respond to Mr. Howson’s request that Mr. Timpone state a factual basis for his accusation. At his deposition, it became clear why Mr. Timpone did not state the basis for his accusation, because he had conducted no reasonable inquiry as to whether the charges he leveled had any basis in fact:
Q: What was the basis that you had at the time you filed this petition for making the allegations that you make in paragraphs 140 and 141 [of the petition]?
A: It had been brought to my attention by several people, basically rumors on the street; but I heard them at a 7-Eleven store, I think through a person, Susan Spears, that, in fact, the defendants had, in fact, at sometime -- that time was unclear to me -- that what’s alleged took place, took place; that they had met on a bus. I believe it might have also been -- I’m not sure of this, so I’m not going to speculate. The son-in-law of Joe Wilson may have mentioned it to someone, but I do know being over at a 7-Eleven store on Lafayette Boulevard I had heard some people in the store talking about this and, I believe, from Susan Spears. She had heard rumors of it and that’s why these allegations are in there.
. . . .
Q: When did you have this conversation with Susan Spears?
A: I’m really not quite sure. It would be sometime after them taking office, sometime prior to my coming before Council. I think August, or somewhere between July and August, middle of August.
Q: Where did you have this conversation with Susan Spears?
A: It was probably at the work session next door. I can’t recall.
Q: You can’t recall when you talked to her about this?
A: No, sir.
. . . .
Q: Did she tell you how she came to have an understanding that there was a supposed meeting on a FRED bus with the five respondents?
A: I believe she just heard it out on the street. It’s a small town; rumors travel.
Q: But you didn’t inquire from her, prior to filing this lawsuit, to make sure that she had some kind of reasonable basis for saying that this meeting occurred?
A: I don’t want words put in my mouth, but I would say, no, I didn’t, you know, follow back to her. It’s just based on things that I heard out there that led me to a belief that, in fact, they had met on a FRED bus to discuss public business. And to the best of my knowledge and belief, based on what I heard, I believed that a meeting possibly had taken place.
Q: And what did you do to follow up and satisfy yourself that a meeting had taken place before filing these charges against five elected officials?
A: I obtained an attorney.
Q: So you didn’t do anything to investigate whether there was a factual basis for what you were saying that these five elected officials did?
A: I believe there was a factual basis just on other people stating that they believed that a meeting had taken place.
Q: But you personally didn’t do anything to follow up on that to see if it was true or not?
A: No, sir; I didn’t.
. . . .
Q: You actually did one thing, didn’t you? Didn’t you send Scott Howson --
A: Yes.
Q: a letter asking about it?
A: I sent him an e-mail. It was on August 15th.
Q: And Scott Howson categorically denied there had been any FRED bus meeting; right?
A: Based on what he sent me, yes. Whether that is true or not, I don’t know.
. . . .
Q: Do you have anything you can tell me more substantive than rumors on the street that gave you a basis for believing that a secret, illegal meeting occurred on a FRED bus?
A: Just what I was told by people or I had heard.
Q: What people?
A: As I said, Susan Spears is the only one that I can recall. But I do recall on at least two other occasions having heard it; one at a 7-Eleven store. The other I can’t recall.
Q: Who said something at the 7-Eleven store?
A: It was some customers that were just before me going to pay.
Q: You don’t know who they were?
A: No; of course not.
. . . .
Q: In Count 16, you’ve alleged there was an illegal FRED bus meeting. Who participated in this illegal FRED bus meeting?
A: Well, I believe it to be the respondents in this case.
Q: All five?
A: Possibly.
Q: Well, can you do any better than possibly?
A: No.
Q: Can you tell me any one of the five respondents that definitely participated in this illegal FRED bus meeting that you have alleged in Count 16?
A: No, sir; I can’t.
Q: Can you tell me specifically what they talked about on this supposed FRED bus meeting that you allege occurred?
A: No, sir.
Q: Then how is it that you could allege in paragraph 140 that upon information and belief this meeting was for the purpose of discussing City business, so that a consensus could be reached by the defendants before meeting with Councilman Wilson and Councilman-elect Turner, when you just told me you don’t have any idea what they were talking about?
A: Well, specifically, I don’t. I believe based on what I heard that perhaps City business was being discussed and being discussed on the FRED bus.
. . . .
Q: You didn’t ask any of these people who told you these rumors what the five elected officials, that you have sued, were supposedly talking about during this FRED bus count that you have alleged here?
A: That is correct.
. . . .
Q: Okay; in paragraph 143 you say, upon information and belief five respondents deliberately held this meeting secretly and privately in a knowing, willful, and deliberate attempt to avoid public scrutiny and decide public business without the input of all the Council members and the public. Did somebody tell you that?
A: I believe it’s a standard thing that when we put in a -- you know, a count, about upon my information and belief. Since Mr. Howson didn’t really respond to my, you know, complete FOIA request with any real information, other than saying no, no other information took place, but other people have said, rumors, that a meeting took place, I believe there was a secret, private meeting; and therefore, it would have been an attempt to avoid public scrutiny as required by FOIA to discuss public information.
Q: Let’s go back to Respondents’ Exhibit Nine. I’m specifically concerned with Scott Howson’s response to you on the first page of that exhibit.
A: Um-hum.
Q: He says, "To the best of my recollection, the last time I was on a FRED bus was about three or four years ago to attend with the City Manager and several Council members, a Regional Elected Officials quarterly dinner in Spotsylvania County at Fawn Lake. Now, you had that information from Mr. Howson in front of you on August 15, 2002; right?
A: Um-hum.
. . . .
Q: Yet you alleged that he had a secret and illegal meeting sometime in July or August this year?
A: Correct.
Q: So, you would agree that that’s inconsistent with what Mr. Howson told you in his e-mail response?
A: I would agree that it is inconsistent only insofar as what he stated. That might have been a statement that he was being untruthful, you know. I have to take into consideration what he said as to what I heard.
. . . .
Q: Prior to filing this lawsuit --
A: Um-hum.
Q: -- you had heard from Scott Howson who told you that there was no secret FRED bus meeting?
A: Correct.
Q: And my question is, did you contact Susan Spears in any way to try and collect facts that would satisfy you that Scott Howson was lying in his e-mail response to you, and that she was telling you the truth regarding this rumor?
A: No.
Q: And did Susan Spears tell you where this -- where she heard this rumor?
A: No.
Q: Did you ask?
A: No.
. . . .
Q: But you went off and you sued these five respondents and charged them with violating the law anyway, didn’t you?
A: Correct.
Timpone Dep. at 9-32.
D. Petitioners Alleged in Count XVIII That An Illegal Meeting Occurred To Discuss the Homeless Shelter Without Any Factual Basis and Without Conducting a Reasonable Inquiry
In Count XVIII, Petitioners allege that Respondent Tom Fortune requested a private meeting with Respondents Beck, Howson, Withers, and Kelly, and that this request occurred at a September 17, 2002 City Council working session. Of course, Mayor Beck was not even at this working session, making it impossible for Mr. Fortune to request anything of Mayor Beck at this working session. Perhaps even more troublesome, Petitioners allege, upon information and belief, that this supposed requested meeting actually occurred. When Respondents took Petitioners’ depositions to identify the basis for Petitioners’ stated "information and belief" that a secret, illegal meeting occurred to discuss the homeless shelter, Respondents learned that Petitioners had absolutely no facts to support this claim, believing that they could just invent scandalous charges, file them in this Court, and then take discovery to see if there was any basis to the claims that they had invented.
1. Petitioner Jenkins
Consistent with his "inquiry" into the factual basis for Counts XV and XVI, Petitioner Jenkins had no facts to support his claim that Respondents had conducted a secret meeting to discuss the homeless shelter:
Q: Did you hear Tom Fortune ask to meet privately with these defendants?
A: Not that I recall.
Q: So, I take it when this case goes to trial on December 13, if you’re asked this question, your answer is going to be you can’t recall; is that right?
A: That’s correct.
Q: All right. Now, we’re talking specifically about the Homeless Shelter now. That was the purpose of the initiating of this conversation by Fortune. Do you know the identity of a person who heard Tom Fortune ask to meet privately?
A: I can’t recall.
Q: And I take it that will be your testimony on December 13th - -
A: (interjecting) Unless I recall something.
. . . .
Q: You go on to say in this count that after Mr. Fortune requested a meeting, that there was a meeting, secretly and privately, in a knowing, willful, and deliberate attempt to avoid public scrutiny, to decide City business without the input of all Council members and the public. That’s the charges you made, and I would like to know what’s the basis for that? First, when was this private meeting held?
A: I believe it speaks for itself.
. . . .
Q: The meeting to -- this illegal contempt -- this awful meeting to avoid the Homeless Shelter without the public knowing what’s going on, this violation of FOIA. Where did it take place?
. . . .
A: I don’t recall the exact place.
Q: Do you recall the date?
A: No.
Q: Do you recall who was at the meeting?
A: More than two members of the Council.
. . . .
Q: Does Mr. Shelton, to the best of your knowledge, have more information about this count than you do?
A: Yes.
Q: To the best of your knowledge, does Mr. Timpone have more information about this count than you do?
A: Yes.
Q: Have they revealed to you the name of any person who has knowledge -- has actual knowledge about this meeting that you have alleged?
A: I don’t recall.
. . . .
Q: Mr. Jenkins, I’m asking you, that if your life depended on it, and your life depended on it, and someone said to you, Mr. Jenkins, what do you know about this stuff that you’ve charged these men with; and you were going to give an answer, what would your answer be?
A: I’m not sure.
Jenkins Dep. at 136-50.
2. Petitioner Shelton
Petitioner Shelton’s deposition testimony similarly did not yield even one piece of evidence that supported a conclusion that Petitioners did not simply fabricate their claim that the five Respondents had conducted a secret meeting to discuss the homeless shelter:
Q: Okay. In paragraph 157, you allege on information and belief defendants deliberately held this meeting [to discuss the homeless shelter]. What is your information?
A: It’s just a pattern that’s been going on, and on, and on, and on. And you have to be pretty -- well, anyway, it’s a pattern that’s been going on, and on, and on. The whole idea was to get things done without -- and I know I’m not supposed to be talking it -- without, number one, without bringing in two members of the Council, Wilson and Hashmill Turner. And the other is not to let the public really know about it, and that’s exactly what has been done.
Q: Well, tell me, where did this meeting take place that you allege in paragraph 157 occurred?
A: I don’t know.
Q: Who attended?
A: I don’t know.
Q: What was discussed?
A: But I know Joe Wilson and Hashmill Turner wasn’t there.
. . . .
Q: You don’t even know if this meeting even occurred, do you?
A: I’m pretty sure it did.
Q: Based on what?
A: I don’t know.
Shelton Dep. at 69-71.
3. Petitioner Timpone
Petitioner Timpone also was unable to identify a factual basis for the allegations in Count XVIII that Respondents conducted a secret meeting concerning the homeless shelter:
Q: You allege in paragraph 157 that this meeting Fortune supposedly requested actually took place; right?
A: I believe it could have, yes, based on the request by Dr. Fortune.
Q: That’s not my -- My question is you allege that upon information and belief it did happen?
A: Um-hum.
. . . .
Q: Okay; what is your information that provides a factual basis for alleging that such a meeting took place?
A: Just, again, rumors that were out there on the street.
Q: Did you do anything to follow up on these rumors?
A: No, sir.
Q: Why not?
A: I don’t have the time, the money, or the effort to do that. I’m not an investigator.
Q: But you went off and you sued five elected public officials and charged them with having this meeting, but you didn’t have the time, or the inclination to conduct any sort . . . of investigation?
. . . .
A: That is specifically what discovery is for.
Timpone Dep. at 42-43.
E. Sanctions Are Appropriate With Respect to Counts XV, XVI, and XVIII
As the preceding description of Petitioners’ deposition testimony demonstrates, Petitioners’ assertion of Counts XV, XVI, and XVIII was reckless at best, malevolent at worst. In each of these counts, Petitioners charged the five Respondents, all of whom are elected public officials, with intentionally violating the law by holding secret face-to-face meetings, and taking affirmative steps to cover their tracks. In their demurrers, Respondents asserted that these face-to-face meetings simply never occurred, and that Petitioners had no facts to support their allegations. Nevertheless, Petitioners fought off these demurrers by contending that the counts met the minimum pleading standard, even though Petitioners knew that they did not have one solid fact to support their allegations. The purpose of Section 8.01-271.1 is to require litigants and their counsel to undertake a reasonable inquiry to ensure that there is a factual basis for claims before they are asserted. Finn, 527 S.E.2d at 435. Here, no inquiry took place before Petitioners impugned the character of five elected officials by filing these scurrilous charges of knowing misconduct in public office. If sanctions are not warranted here, then they are never warranted.
With respect to Count XV, none of the Petitioners is able to identify a single fact that supports the conclusion that anyone other than Respondents Howson and Withers went on a tour of Maury school, a tour that cannot constitute a meeting under FOIA because there were less than three members of the City Council present. Indeed, the very exhibits Petitioners filed with their petition included an e-mail in which Scott Howson specifically stated that he was going to take just Mr. Withers on a tour of Maury instead of the larger, public tour that had been discussed. In response to that fact, Petitioner Timpone lamely asserted that he was free to allege an illegal meeting because it was always possible that another member of the City Council showed up for the tour, although he had no evidence to suggest that this occurred.
In Count XVI, Petitioners claimed that all five Respondents surreptitiously entered a FRED bus -- all entering at different stops to conceal their intention to have a meeting on the bus. Neither Petitioner Jenkins nor Petitioner Shelton was able to identify one fact in support of this allegation or to identify the source of the information that supposedly supported the inclusion of Count XVI in the petition. Petitioner Timpone’s "inquiry" (if he is to be believed) consisted of his hearing "word on the street" that a clandestine FRED bus meeting occurred, and he admits that he did absolutely nothing to confirm the reliability of these supposed rumors. Even after Respondent Howson denied that such a secret meeting took place, Petitioner Timpone and Respondents did nothing to inquire into the factual basis for Count XVI before charging the five Respondents with intentional misconduct in office.
With respect to Count XVIII, Petitioners allege "upon information and belief" that the five Petitioners had a secret meeting to discuss the homeless shelter. However, none of the Petitioners could identify a single fact that supported their conclusion that such a meeting occurred. They could not identify a witness, a date, or a place where such a meeting supposedly took place.
For each of these counts, Petitioners have displayed a disturbing attitude that they were free to assert claims for which they had no basis in fact because they could determine whether such a basis existed through the discovery process. Indeed, Petitioner Timpone defiantly testified that he did not have the time, money, or effort to check into the veracity of his claims before filing suit against five public officials in which he charged these officials with intentional malfeasance in office. Timpone Dep. at 43. This is precisely the type of litigation misconduct that Section 8.01-271.1 is designed to prevent and punish. Therefore, the Court should sanction Petitioners by requiring them to pay the attorneys fees and costs incurred in defending Respondents against Counts XV, XVI, and XVIII. The only way that the Court can deter Petitioners from continuing to file baseless claims against their political opponents is to sanction them for failing to meet their obligations under § 8.01-271.1 to conduct a reasonable inquiry into the factual basis for their claims.
III. CONCLUSION
For the foregoing reasons, the Court should impose sanctions on Petitioners pursuant to Section 8.01-271.1 of the Virginia Code because Petitioners asserted Counts XV, XVI, and XVIII without having any factual basis for the allegations in those counts, and without conducting a reasonable inquiry as to the veracity of the allegations in those counts.
Respectfully submitted,
________________________________
Howard H. Stahl
Steven K. Davidson (VSB #25210)
John F. O’Connor
Frank H. Griffin IV (VSB #48337)
STEPTOE & JOHNSON LLP
1330 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 429-3000
Attorneys for Respondents Mayor Bill Beck, Vice-Mayor Scott Howson, Councilmember Dr. Tom Fortune, and Councilmember Matt Kelly
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served this 9th day of December, 2002, by hand delivery, on the following counsel of record:
David Zachary Kaufman
KAUFMAN LAW
10625 Jones St., Suite 201-A
Fairfax, VA 22030
Michael Barnsback
DIMURO GINSBURG & MOOK, PC
908 King Street, Suite 200
Alexandria, VA 22314
Attorneys for Petitioners
William M. Sokol
SOKOL & JONES
904 Princess Anne Street, Suite 101
Fredericksburg, VA 22401
Attorneys for Respondent William C. Withers, Jr.
____________________________
John F. O’Connor
