Written by: Michael Phillips
Multi Hour Hearing Held Over Freedom of Information Act Disputes
In a recent court hearing Thursday, Augusta County faced scrutiny in two related cases: Breaking Through Media v. Augusta County and Scott Seaton, and Graham v. Whetzel (converted by the Judge to Graham v. Augusta), filed by Chris Graham, the editor of Augusta Free Press. The proceedings shed light on the county's closed sessions, particularly the meetings recorded by Supervisor Scott Seaton, and raised questions about the legitimacy of those "closed session" designations.
Unraveling the Closed Door Controversy
The cases revolve around the efforts of the Augusta Free Press to obtain a recording of a closed meeting of the Augusta County Board of Supervisors on March 20, and Breaking Through's request for two years' worth of recordings covering various subjects related to county corruption allegations. The closed session on March 20, specifically sought by both media outlets, discussed the resignation of South River Supervisor Steven Morelli, a matter that has been at the center of controversy.
Lack of Transparency in Closed Sessions
The legal battle intensified as the court heard arguments from both outlets, the County, and Dr. Scott Seaton. Breaking Through News highlighted Augusta County's alleged lack of transparency and adherence to proper procedures in entering closed sessions. The county's legal team presented an impressive memorandum citing case law and precedents, but a crucial omission was noted by the attorney for Breaking Through News.
Ignoring Precedent: Augusta County's Oversight
According to the memorandum from Breaking Through filed in the case, Augusta County failed to address the controlling case law on the matter, specifically referencing Cole v. Smyth County Board of Supervisors, 298 Va. 625 (2020). The Virginia Supreme Court in Cole emphasized the requirement for a government body to specify the subject matter of discussion with particularity before entering a closed session.
Fitzgerald's Testimony and Perjury Allegations
Breaking Through News argues that Augusta County did not satisfy this requirement, rendering the closed session improperly convened. This contention challenges the county's defense that records arising from a lawfully held closed session are exempt from disclosure under the Virginia Freedom of Information Act (FOIA). During intense questioning at Thursday's hearing, County Administrator Tim Fitzgerald acknowledged the County only summarized the statutes when entering closed sessions. When pressed by Breaking Through's counsel, Fitzgerald became angry and stated "that's how we always do it here". Apparently for Mr. Fitzgerald, Supreme Court precedence doesn't seem to reach across the Blue Ridge.
Text Messages and Perjury Investigation
The court also heard arguments related to the text messages exchanged among Board members, particularly those sent by Morelli hours before the closed session. The messages, obtained through a FOIA request, contradicted County Administrator Tim Fitzgerald's sworn testimony that the Board learned of Morelli's resignation less than half an hour before the meeting.
In fact, the text evidence shows the board members knew hours before. “Gerald, it’s with a heavy heart that I resigned from the board today. Please give me a call when you get a minute,” Morelli wrote to Gerald Garber, who represents the Middle River District on the BOS, in a text message time-stamped at 11:08:30 a.m. on March 20.
“I just resigned from the board,” Morelli wrote to Jeffrey Slaven, the board’s vice chair, in a text message time-stamped at 11:10:18 a.m. on March 20.
Chris Graham, editor of Augusta Free Press, presented the text messages in the Graham v. Whetzel case, adding a layer of complexity to the proceedings. The messages suggested that Board members were aware of Morelli's resignation several hours before the scheduled closed session, raising questions about the accuracy of Fitzgerald's testimony. Graham had the content of the text messages but not the FOIA produced messages themselves.
Verifying Text Messages and the Perjury Dilemma
This prompted Judge Thomas J Wilson, sitting in the Augusta Circuit Court, to inquire to the county as to whether the text messages represented by Graham in his filing were accurate. The County's attorneys initially resisted confirming the existence of the texts.
Graham, who is not an attorney and was appearing pro se (when one represents oneself), announced to the Court that he could verify the texts by calling two witnesses who happened to be in the Courtroom: Jennifer Whetzel and Board Member Butch Wells. While Graham may not be a lawyer by trade, his announcement of his intended witnesses sent a hush across the gallery, in quite the dramatic courtroom moment. While Graham called Whetzel to the witness stand, Wells (who was sitting in the audience) communicated a message to county attorney James Benkhala, who was in attendance as well. Benkhala was then seen passing a note to the county's outside attorney, Rosalie Fessier, who immediately announced that the county was able to verify the text messages Graham presented. These messages directly contradicted the sworn testimony of Tim Fitzgerald, opening the possibility of a perjury investigation into the chief executive of the county. However, by acknowledging their existence the county's attorneys were able to prevent Supervisor Butch Wells from testifying.
It certainly appeared that the County was not too eager to see Wells called as a witness, but their admission led to the text messages being entered into evidence.
Legal Ramifications and Perjury Charges
The court granted Augusta County seven days to file a legal brief addressing the impact of the text messages on the timeline of events. The deadline for this submission is set for December 28, 2023.
Leaving the courtroom, Breaking Through asked Fitzgerald to comment on his apparent false testimony, but Fitzgerald replied by saying "you're not getting anything from me today".
Amidst these developments, it is essential to note that providing false testimony under oath is considered a felony under Virginia perjury law. Recently, a former executive with Nexus Services was prosecuted for perjury by Augusta County officials. The potential implications of this legal precedent loom over Fitzgerald, the County Administrator, as the legal battle continues.
Closed Session Controversy Continues
As the legal drama unfolds, all eyes are on Augusta County's closed sessions, awaiting the court's decision after the briefing schedule concludes. These cases underscore the paramount importance of transparency in government proceedings and the imperative need for strict adherence to legal protocols in closed meetings. The controversy surrounding Morelli's resignation and the subsequent closed session further deepens the unfolding legal saga in Augusta County.
Should the Judge rule, in line with the Supreme Court precedent set by the Cole case, that Augusta County's closed sessions were not properly held, a significant outcome looms—the release of the recordings to the public. This potential revelation adds another layer of complexity to an already intricate legal narrative. Breaking Through remains committed to covering this evolving story and its many complexities, ensuring the public stays informed on the proceedings.
At Thursday's hearing, Breaking Through Media LLC and Samuel Joseph Orlando, our Editor, were represented by Attorney Amina Matheny-Willard. Augusta County had most of its legal team in the courtroom, and was represented in the hearing by Rosalie Fessier of TimberlakeSmith in Staunton. Dr. Scott Seaton and Chris Graham represented themselves at the hearing.