Fredericksburg FOI Case: Trial
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11
12 VOLUME I
13
14 EXCERPT of the trial in the above-
15 entitled matter, when heard on December 13, 2002,
16 at 9:00 a.m., before the Honorable John W. Scott,
17 Jr., Judge.
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0002
1 WHEN THERE WERE PRESENT
2 ON BEHALF OF THE RESPECTIVE PARTIES:
3
4 ON BEHALF OF PETITIONERS: Gordon Shelton,
5 Anthony Jenkins; Patrick Timpone:
6
7 Mr. David Z. Kaufman, Esquire
8 KAUFMAN LAW OFFICE
9 10625 Jones Street, Suite 201A
10 Fairfax, Virginia 22030
11 (703)764-9080
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13 Mr. Michael Barnsback, Esquire
14 DIMURO, GINSBURG & MOOK, P.C.
15 908 King Street, Suite 200
16 Alexandria, Virginia 22314
17 (703) 684-4333
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0003
1 ON BEHALF OF RESPONDENTS: Bill Beck, Scott Howson,
2 Dr. Thomas Fortune, and Matthew Kelly:
3
4 Mr. Howard Stahl, Esquire
5 Mr. John F. O'Connor, Esquire
6 STEPTOE & JOHNSON, L.L.P.
7 1330 Connecticut Avenue, N.W.
8 Washington, D. C. 20036
9 (202-249-8095)
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11
12 ON BEHALF OF RESPONDENT WILLIAM WITHERS, JR:
13 Mr. William M. Sokol, Esquire
14 SOKOL & JONES
15 904 Princess Anne Street, Suite 101
16 Fredericksburg, Virginia 22401
17 (540)899-8077
18
19 The parties respectively.
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0004
1 C O N T E N T S
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3 Witness: Page
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5 Mayor Bill Beck
6 Direct Examination by Mr. Barnsback 100
7 Cross Examination by Mr. Stahl 131
8 Redirect Examination by Mr. Barnsback 140
9
10 Vice-Mayor Scott Howson
11 Direct Examination by Mr. Barnsback 145
12 Cross Examination by Mr. Stahl 163
13 Redirect Examination by Mr. Barnsback 181
14
15 Councilman Matthew Kelly
16 Direct Examination by Mr. Barnsback 193
17
18 Sharon D. Nelson
19 Voir Dire Examination by Mr. Kaufman 218
20
21 (cont'd)
0005
1 WITNESS: PAGE
2
3 Mayor Bill Beck, recalled
4 Direct Examination by Mr. Kaufman 233
5 Cross Examination by Mr. Stahl 262
6 Redirect Examination by Mr. Kaufman 274
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8 Vice-mayor Scott Howson, recalled
9 Direct Examination by Mr. Kaufman 281
10 Cross Examination by Mr. Stahl 293
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12 Petitioners Rest 296
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14 Councilman Matthew Kelly
15 Direct Examination by Mr. O'Connor 298
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0006
1 E X H I B I T S
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2 Page
3 Petitioners' Exhibit One
(Fitzgerald e-mail) 145
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5 Petitioners' Exhibit Two
(Pates' letter) 249
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7 Petitioners' Exhibit Three
(1-page document) 281
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9 Petitioners' Exhibit Four
(document/Electronic Communication) 288
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11 Respondents' Exhibit One
(2-page email from Scott Howson) 167
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0007
1 THE COURT: One moment,
2 gentlemen.
3 We are going to begin
4 this morning's proceeding by considering
5 the motion to dismiss filed by Mr.
6 Withers. So, initially the hearing will
7 involve only Shelton vs. Withers.
8 Mr. Sokol, we have read
9 your pleading. Would you like to
10 present any additional argument or
11 testimony in reference to your motion?
12 MR. SOKOL: Yes, Your Honor.
13 May I?
14 Since there is no lectern
15 in the courtroom, I would prefer to be
16 facing Your Honor, if I could.
17 If Your Honor please, we
18 have no testimony to offer in the
19 support of the motion to dismiss. We
20 take the position that e-mails exhibited
21 stand for the case either going up or
0008
1 going down, and I'm not going to present
2 any argument this morning with respect
3 to the issue whether or not there was a
4 meeting. We take the position there was
5 no meeting, that there was no assembl-
6 age; that there has been no violation by
7 any party under the Virginia Freedom of
8 Information Act. I'm going to leave
9 that to the responsibility of the other
10 respondents, but I would like to address
11 in support of the motion to dismiss
12 whether or not Mr. Withers was a parti-
13 cipant in anything, and in support
14 thereof I would just refer to the three
15 counts contained -- the three surviving
16 counts. Mr. Withers is not included in
17 the count on an alleged Charlotte Street
18 meeting, but just making reference to
19 the three counts there that are called
20 e-mail counts I take it what we are
21 talking about is e-mail and the exchange
0009
1 of e-mail.
2 Count number 11; the
3 so-called meeting on Committee Assign-
4 ments. Paragraph numbered 99, I think
5 there are two key words there, Your
6 Honor. One word is exchanged. It says
7 during the certain period a series of
8 e-mails were exchanged between the
9 defendants. The simple definition of
10 exchange in any dictionary is give and
11 receive.
12 The evidence shows by the
13 exhibits presented that, after much
14 discovery, all parties, the City through
15 its staff, presenting this book of
16 exhibits. It must be this -- well, this
17 large. (Mr. Sokol demonstrating). It is
18 not an exhibit that contains any e-mail
19 with respect to Committee Assignments
20 sent by Mr. Withers. So on that basis
21 alone, the count fails because the
0010
1 petitioner cannot prove, no matter what
2 kind of testimonial evidence he may
3 think he can produce or they may pro-
4 duce, there is an absolute absence of
5 any proof of an exchange; an exchange
6 inclusive of the rendition or the send-
7 ing of an e-mail by Mr. Withers with
8 respect to Committee Assignments.
9 The word discuss,
10 paragraph number nine; e-mails exchanged
11 between the defendants discussing. I
12 think the plain definition of discussing
13 is an affirmative participation. I have
14 something to say germane to the subject
15 that you wish to discuss. The proof is
16 that e-mails were sent somewhere, sent
17 to Mr. Withers. When Mr. Withers
18 received them is problematic; when he
19 may or may not have read them is
20 problematic. What is not problematic is
21 that he didn't discuss anything with
0011
1 anybody. He didn't even say by e-mail,
2 thanks for the e-mail that informs me.
3 He said nothing. There is no e-mail in
4 this file this wide where Mr. Withers
5 discussed any matter involving Committee
6 Assignments.
7 There is a rather
8 delicious irony here, and that is the
9 Committee Assignments that Mr. Withers
10 would have liked -- I believe it is the
11 RADCO and the Jail -- he didn't get.
12 That's one other.
13 And the only piece of
14 evidence -- and it is not evidence, it
15 is a point of information -- that
16 apparently there was a telephone call
17 from Mr. Withers to Mr. Beck, although
18 it is not shown in the e-mails, where he
19 said so-and-so can't -- he didn't even
20 say so-and-so. He said to be on the
21 Library Board you must be a resident of
0012
1 the jurisdiction, which is a point of
2 information and maybe of some utility, I
3 take it it is, to the recipient. But
4 for this, which is not an e-mail, which
5 is not a meeting, the Petitioners would
6 charge him with a willful violation of
7 FOIA subject to a fine of a willful act?
8 This doesn't even involve any subject
9 matter other than a point of informa-
10 tion, and it is not an e-mail and it's
11 only to one person.
12 So this count, there is
13 nothing by way of any of the proof that
14 has been offered through these exhibits,
15 which would place Mr. Withers anywhere
16 in the vicinity of harm's way by way of
17 a willful violation of anything.
18 I think there is also a
19 third word; the word used in Your
20 Honor's opinion you issued in ruling on
21 the demurrers, when you said it comes to
0013
1 how the e-mails are used. Well, use
2 implies something affirmative, using
3 something to engage in a course of
4 activity or conduct. There is no proof
5 that Mr. Withers used any e-mails at any
6 time.
7 And, Your Honor, I could
8 make the same argument, and I will with-
9 out being so wordy, on the counts on C-V
10 Zoning. Was there an exchange? Nothing
11 in this box sent by Mr. Withers. Was
12 there a discussion? Nothing in this box
13 where Mr. Withers engaged in a discus-
14 sion. It is problematic whether or not
15 Mr. Withers even received and considered
16 information because he did nothing and
17 there was no reason for him to do
18 anything.
19 People were sending him
20 things, along with others, and there is
21 no evidence that anything was done that
0014
1 had any influence over any matter
2 relative to Mr. Withers.
3 By way of proffer on my
4 part, Mr. Withers was looking to City
5 Staff for assistance, not from any
6 outside source.
7 Now the last of these 17
8 counts that were initially filed where
9 Mr. Withers was made a defendant, the
10 last has to do with historic preserva-
11 tion. And, Your Honor, once again there
12 is no exchange, there is no sending,
13 there is no discussion, there is no
14 participation. Through all this raft of
15 material, through all the sometimes
16 seemingly interminable depositions, all
17 this distilled, with respect to Mr.
18 Withers, is that he is a public
19 official, that he and his wife have a
20 personal computer; and I take it
21 intrinsic to a personal computer is an
0015
1 e-mail capacity, and that is it, Your
2 Honor. That is it. As to be charged
3 with a willful violation, and I will get
4 into that later I expect, but looking at
5 these three counts there is nothing,
6 nothing beyond the e-mails, which would
7 support the allegations as set forth in
8 these three counts.
9 And I ask, therefore, the
10 motion to dismiss -- and I think one
11 reason Your Honor, if I may presume to
12 say, waited these several months to act
13 was because Mr. Kaufman made a represen-
14 tation that the discovery might produce
15 something or he thought that it would,
16 that would bring Mr. Withers into the
17 arena of a participant in anything.
18 THE COURT: That's correct,
19 Mr. Sokol.
20 MR. SOKOL: And Mr. Kaufman
21 came forward with other e-mails that he
0016
1 supplemented. Those e-mails did not
2 have any fingerprints of Mr. Withers on
3 them whatsoever under the three words
4 that I used: Exchange, discussion, or
5 use. And I, therefore, ask mercifully
6 at this point that the motion to dismiss
7 be granted and he no longer be a party
8 respondent.
9 THE COURT: Mr. Kaufman.
10 MR. KAUFMAN: I'm impressed
11 with Mr. Sokol's rhetoric, but there are
12 a few facts that are missing from his
13 presentation.
14 In the first place, and
15 we know this from Mr. Withers' deposi-
16 tion, is that at some point during the
17 orientation he was provided the FOIA
18 packet that they are required by law to
19 be given. And he doesn't really
20 remember a whole lot about it, but he
21 does remember he is not suppose to get
0017
1 together with three or more people and
2 discuss business. And I forget exactly
3 whether he said get together or meet
4 with, but something to that effect.
5 Second, Mr. Withers said
6 in his deposition he checks his e-mail
7 about twice a week; and when his wife
8 goes on much more frequently, when she
9 sees he has gotten something she tells
10 him about it and then he goes and checks
11 for himself. So he should know, and
12 under FOIA he is suppose to know that
13 you are not suppose to get together and
14 talk with people about City business
15 privately.
16 Now as for Count 1, the
17 first of the counts, Committee Assign-
18 ments, specifically there is an e-mail
19 sequence, it's nine or ten e-mails,
20 beginning around the 2nd of July -- 2nd
21 or 3rd, I don't remember exactly -- and
0018
1 ending on the 8th, involving who is
2 going to be on the Library Board.
3 THE COURT: I guess that has
4 to do with the discussion in reference
5 to Mr. Cameron?
6 MR. KAUFMAN: Yes, sir.
7 THE COURT: All right.
8 MR. KAUFMAN: And there was a
9 lot of discussion on that and actually
10 people were posting -- in the e-mails
11 they were saying who their vote was for
12 and so on and so forth, like that. And
13 in the course of that discussion Mr.
14 Withers is getting a lot of these, and
15 right at the end of that discussion
16 Mr. Beck posts a message, Billy call me,
17 meaning Mr. Withers. And there is a
18 jurisdictional problem for Mr. Cameron,
19 he doesn't live in the right area, and
20 that ended it. And Mr. Withers said,
21 well, Mr. Cameron didn't get the job.
0019
1 He was, clearly, reading what he was
2 getting and he acted on it. He used the
3 information; he provided them with
4 information. Now, admittedly, he didn't
5 provide it by e-mail but he sure, lord,
6 was reading those e-mails because he
7 acted on it.
8 Now, we contend, at least
9 in part, that just as one can sit at a
10 City Council meeting and not say any-
11 thing, one can sit at an exchange of
12 e-mails reading everything avidly,
13 digesting information, and using the
14 information without ever having to send
15 an e-mail, we contend; and, therefore,
16 we would oppose Mr. Withers being dis-
17 missed as to the Committee Assignment
18 count because he clearly participated.
19 He read it, he absorbed it; he acted on
20 it in some manner. And Mr. Cameron, who
21 had three votes in the exchange right up
0020
1 front, was never offered the position.
2 That's participation.
3 As for the C-V Zoning
4 count, Mr. Withers admitted in his depo-
5 sition, while he wasn't super interested
6 in it, he did read everything and he did
7 review -- I think that we will produce
8 it separately, but there was a letter
9 that was finally sent on the 7th --
10 dated the 6th of August and sent on the
11 7th of August by Mr. Kelly, and that
12 draft of that letter was circulated
13 around.
14 THE COURT: You're talking
15 about the letter sent to Virginia Tech?
16 MR. KAUFMAN: Mr. Chandler.
17 THE COURT: Yes; at Virginia
18 Tech.
19 MR. KAUFMAN: That's right.
20 And Mr. Withers admitted in his depo-
21 sition that he had read it and he had
0021
1 reviewed it. He found it interesting
2 and presumably informative, but he
3 didn't comment on it because, as he
4 said, it was not something that really
5 had him motivated to comment or anything
6 like that. And he said the C-V Zoning
7 issue is still before the Council.
8 Well, if he read the stuff and it
9 informed him, he participated in the
10 meeting. You're participating in this
11 hearing, Your Honor. You're not saying
12 anything; you're making me talk.
13 THE COURT: We will talk about
14 that momentarily.
15 MR. KAUFMAN: But, nonethe-
16 less, one can sit in a meeting and not
17 say a whole lot and still learn stuff
18 and participate in the meeting by
19 learning.
20 There is also some
21 internal evidence in another e-mail
0022
1 where there is a P.S. appended at the
2 bottom by -- I think it was Mr. Kelly,
3 suggesting, you know, that Tom, Billy --
4 Tom, presumably, being Mr. Fortune and
5 Billy presumably being Mr. Withers --
6 you know, that the Celebrate Virginia
7 letter is about to go out and give me
8 your comments right away. Clearly,
9 people knew that he was going to read
10 these things and be informed.
11 By the way, as a side
12 note -- I almost forgot -- there is a
13 separate aside in the Committee e-mails
14 in which Mr. Beck sends a private e-mail
15 to Mr. Withers saying essentially, hey,
16 review who we want on these committees
17 here and give me a call before the
18 meeting. Now, that was, I think, July
19 7th; and, of course, the Council meeting
20 when everything was done was on the 9th.
21 But back to Celebrate
0023
1 Virginia, that's an ongoing process
2 about which Mr. Withers informed himself
3 and helped formulate the questions to be
4 asked.
5 Did he help formulate
6 them by taking an action? No. He read
7 them and was informed by what people
8 were saying and how they were framing
9 the questions, and once the answers came
10 back he was informed of the answers, you
11 know, but the important part is the
12 framing of the questions. It is well
13 known that a lot of times the answer
14 will depend on what the question is and
15 what the premises are. And oh, by the
16 way, Mr. Withers did admit in his
17 deposition that he had seen Mr. Kelly's
18 forwarding of Mr. Pates' private
19 response about the e-mail letter and
20 Mr. Pates' comments and suggestions for
21 them, you know, before it went out. So,
0024
1 silent acquiescence? Going and sitting
2 and not saying anything but absorbing
3 and learning, that is a participation.
4 One can't simply sit there and be alone
5 and yet be informed and not be said to
6 participate.
7 As for the third of the
8 e-mail counts there, the one on the
9 historic preservation committee, all
10 that work was done in about a ten-day
11 period prior to August 13. August 13th
12 the Historic Preservation Committee was
13 announced. The preceding e-mails dis-
14 cussed the Historic Preservation
15 Committee. They even named names as
16 representatives for who would be on it,
17 and Mr. Withers knew about that. He had
18 seen these e-mails and he says in his
19 deposition, you know, I wasn't all that
20 involved in that but Matt Kelly was real
21 involved and these other guys were
0025
1 really involved. If they want to have a
2 Historic Preservation committee, I will
3 support them, okay, and he knew it
4 before going in because he had gotten
5 all this stuff and he knew what was
6 going on.
7 And, in fact, the
8 Historic Preservation Committee was, in
9 fact, created with the same people on it
10 who were proposed in that e-mail that
11 was circulated to the five beforehand.
12 He participated. He knew it was coming.
13 And when it came, he was prepared to
14 support it. He participated. He used
15 the knowledge. He read it, he used it;
16 he voted on it, and it is there.
17 So, Mr. Withers is
18 involved. I know he didn't want to be
19 necessarily, but he was involved. He
20 didn't protest. He didn't say, wait a
21 minute, we need to do this in open
0026
1 session. All this discussion preceded
2 and he should have known about the FOIA
3 and FOIA requirements. He was provided
4 that no later than June 17, and he was
5 required to read it and become familiar
6 with it by the very terms of the statute
7 and he didn't. Willful blindness?
8 Whatever.
9 But we are going to prove
10 these things, and Mr. Withers should not
11 be dismissed from those three counts.
12 THE COURT: For purposes of
13 this motion, we accept your proffer as
14 being fact.
15 MR. KAUFMAN: Thank you, Your
16 Honor.
17 THE COURT: Mr. Sokol, any
18 response?
19 MR. SOKOL: Yes, Your Honor.
20 Mr. Withers, as Your
21 Honor knows, was elected for the first
0027
1 time, began service July 1; he gets
2 something from his Mayor. He has a
3 brain and it comes in his e-mail. Is he
4 not going to read it sometime? By
5 Mr. Kaufman's reckoning and by his
6 lights, if Mr. Withers was in a theater
7 and someone yelled fire and Mr. Withers
8 understood what fire meant and fled the
9 church, he somehow becomes a participant
10 in starting the fire. My brain cannot
11 fathom the series of premises that
12 permits Mr. Kaufman to reach the
13 conclusion he has.
14 He has not addressed
15 anything, apparently giving it no
16 respect whatsoever, the arguments that I
17 presented in support of the motion with
18 respect to an exchange, with respect to
19 a discussion, with respect to use. He
20 is entirely averting, disregarding, and
21 instead says that by reason of the fact
0028
1 Mr. Withers has an e-mail capacity like
2 I suppose all computer users have, and
3 that he informed Mr. Beck that a member
4 of the Library Committee must be a
5 resident of the jurisdiction, that that
6 violated Virginia's Freedom of Informa-
7 tion Act.
8 I would be interested in
9 knowing what the formulators of the
10 committee that put together the Act in
11 Virginia or any other jurisdiction would
12 think about this kind of interpretation
13 as a willful violation by means of,
14 what, a telephone conversation to one
15 other person. You know, why leave Beck
16 in the dark if he knows something about
17 the eligibility? It was an entirely an
18 exercise in telling Mr. Beck what the
19 requirements were. It was an act of
20 responsibility. The public would expect
21 Mr. Withers to do this if he knew it.
0029
1 It's not public business; it's informa-
2 tion. It is appropriate information.
3 It doesn't present the gravamen for this
4 petition.
5 Mr. Kelly sent something
6 and he asked for certain things;
7 respond, do this, what do you think?
8 That was on the C-V, I think, the
9 rezoning. What does the evidence show
10 by way of the e-mail? Mr. Withers did
11 nothing. He didn't respond. But by his
12 silence, Mr. Kaufman and his Petitioners
13 would find responsibility under the Act.
14 And after a while, frankly, Your Honor,
15 I kind of lost the drift of what Mr.
16 Kaufman was saying.
17 I ask that you grant the
18 motion. Thank you.
19 THE COURT: The Court has
20 reviewed every single e-mail that was
21 generated after July 1, 2002.
0030
1 The Court being familiar
