Supervisors Reject Request To Hire BOE Lawyer In Open Meeting Dispute
Posted: Wednesday, July 20, 2011 11:45 am
by Erika Jacobson Moore
The Board of Supervisors had harsh words Tuesday for the Board of Equalization in denying its request to hire outside legal counsel to represent it in court matters.
In a letter dated July 12, the Board of Equalization’s chairman Scott Littner requested the board approve the hiring of Leesburg attorney John Flannery as the board’s counsel on a pending legal matter – a Freedom of Information Act complaint stemming from a June 28 incident at a BOE meeting. In the case, freelance reporter for Ashburn AOL Patch and Lansdowne resident Beverly Bradford, who was attending to follow the appeal of the National Conference Center’s assessment, attempted to take a photograph of the proceeding.
According to an account of the incident, reported on the Ashburn AOL Patch site, for which Bradford has written, she was told she could not take a photo of the public meeting; the BOE attempted to take her phone to delete the picture; and when she objected she was escorted from the room. That action prompted the FOIA case, which was served to the BOE the following week. Because the issue was scheduled in Loudoun General District Court Monday, July 11, the County Attorney’s Office could not issue an opinion in time, according to Littner’s letter, and Flannery was called upon to represent the BOE.
In his letter Littner called into question the “disqualifying conflict” of having the BOE represented by the County Attorney’s Office while it is also advising and representing the Board of Supervisors and the County Assessor. The assessor’s office assessments are appealed to the Board of Equalization. Littner also pointed out that the previous BOE chairman and County Attorney John R. Roberts reviewed and approved the procedures for members of the public to attend the BOE hearings.
Therefore, Littner wrote, the County Attorney’s Office “now cannot advise us on the sufficiency and aptness of those procedures as it conforms, or not, with the state FOIA requirements given the undisputed facts of the incident at hand.”
But supervisors Tuesday took issue with the BOE’s handling of the incident with Bradford and in its motion denying the request encouraged the board to “apologize to the reporter” and to “quickly resolve the pending [FOIA] case in a manner that ensures open access to meetings, including the ability of citizens to record meetings, without incurring needless cost to the taxpayers.”
The Board of Equalization can seek permission for outside counsel from the Loudoun Circuit Court, which appoints the BOE members. If it uses that avenue, the Board of Supervisors requested the court “ensure that the rates are not excessive and that any fees charged to the taxpayers of Loudoun County are reasonable.”
In Littner’s letter, he indicated Flannery would be willing to reduce his hourly fee to $400.
Supervisor Stevens Miller (D-Dulles) excused himself from the vote because Flannery represents a member of his family.
As to the FOIA case, Flannery said he does not see a FOIA violation, as Bradford was able to keep her photo and it was published on the Ashburn Patch site.
“It seems to me to be a factual misunderstanding,” Flannery said. “There wasn’t a secret meeting.”
The case is scheduled to be in court again Aug. 1, but Flannery said he is hopeful the issue will be worked out privately before then. “Often in litigation people have differences of opinion…and sometimes communications clear them up.”
Bradford could not be reached for comment.