Scott cites unsupported claims in city e-mail case
A judge yesterday ordered the plaintiffs in a Freedom of Information lawsuit brought against five Fredericksburg City Council members to pay $8,000 of the defendants’ legal fees.
Circuit Judge John W. Scott Jr. ruled that former Vice Mayor Gordon Shelton and city residents Anthony Jenkins and Patrick Timpone must together pay that amount to the city to cover part of the costs of the defense.
The judge cited the plaintiffs for including two unsupported claims in their suit, which listed 18 counts when it was filed in September.
The suit accused Mayor Bill Beck, Vice Mayor Scott Howson and Councilmen Matt Kelly, Tom Fortune and Billy Withers of violating Virginia’s Freedom of Information Act by deliberately excluding the public and Councilmen Hashmel Turner and Joe Wilson from e-mail and face-to-face discussions of city business.
The judge ruled against Beck, Howson and Kelly on one of the counts Friday, saying they violated the law by discussing city appointments in a series of e-mails because they were trying to achieve a consensus. But he dismissed the other claims against them and all claims against Fortune and Withers.
Finding no willful violation of the law, Scott did not order the defendants to pay sanctions. But he fined the plaintiffs yesterday for claiming the councilmen held “secret” meetings in person–one at the former Maury School and one on a FREDericksburg Regional Transit bus.
The plaintiffs had dropped those two claims before the trial after failing to gather enough evidence to support them. But Scott ruled that penalties were in order under Virginia Code Section 8.01-271.1, which states that plaintiffs can be sanctioned if the counts they file are not “well grounded in fact” or if they are “intended for any improper purpose, such as to harass.”
Beck called the sanctions against the plaintiffs “a drop in the bucket” but “a step in the right direction.” Howson, however, said the monetary amount was “irrelevant.”
“The point was made that they brought unsubstantiated counts against elected officials,” Howson said.
David Kaufman, attorney for the plaintiffs, said his clients filed suit because they believe government “should be in the sunshine.”
“FOIA’s entire structure and purpose is to require open government,” he said in an interview after the hearing. “That’s why I’m here–for open government.”
Jenkins said the plaintiffs may appeal the sanctions. He said the three council members found in violation of the law should pay their own legal fees instead of forcing city taxpayers to foot the bill.
All but four of the original 18 counts had been dropped by the plaintiffs or dismissed by the judge before the trial. After hearing arguments Friday, the judge dismissed two other counts of e-mail “meetings” and one count of a face-to-face meeting attended by Beck, Howson and Kelly to hear residents’ neighborhood traffic concerns.
Howard Stahl, defense attorney for all the councilmen except Withers, said yesterday he plans to appeal the judge’s lone ruling against Beck, Howson and Kelly.
That precedent-setting opinion clarified a gray area in the FOIA. The act prohibits three or more members of a public body from holding meetings via “electronic” communication but does not state whether e-mail falls into that category.
In seeking sanctions against the plaintiffs, Stahl argued yesterday that they conducted “no investigation, no analysis, no nothing” before including some of the claims in the suit.
Kaufman argued that his clients acted in good faith and had “context” and facts to support their allegations.
Kaufman tried to settle with Stahl before yesterday’s hearing, suggesting that both drop their rights to appeal and requests for sanctions. Stahl refused.
Stahl estimated that legal fees for the defendants likely will exceed $90,000. The city is expected to pay the balance left after plaintiffs’ fine, but has set aside only $25,000 in this fiscal year’s budget to cover outside legal fees.
It is still unclear who paid the plaintiffs’ legal bills. Scott refused to allow Stahl to question Shelton yesterday about the matter.
In his deposition, Shelton said he was not paying, but refused to say who was. Timpone and Jenkins also refused to say where the money came from.
Date published: 12/18/2002