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The State of NoVa
Posted at 10:20 AM ET, 01/26/2012

Loudoun FOIA battle expands into costly power struggle


J. Scott Littner, chairman of the Loudoun County Board of Equalization, apparently did not appreciate having this photo taken. His displeasure has turned into a costly lawsuit and a battle with the county Board of Supervisors. (Beverly Bradford - Leesburg Patch.com)
Sitting in a public meeting, in the Loudoun County government center one afternoon last summer, Beverly Bradford snapped a picture. One picture. And that innocent, utterly legal act has snowballed into a sprawling, unnecessarily costly lawsuit for Loudoun County, followed by an escalating battle between the county’s Board of Supervisors and Board of Equalization over paying for that suit, and finally a power struggle between the boards that stretches down to Richmond.

Plus there’s a side order of weirdness over a large land deal involving the new high school that Loudoun wants to build in Lansdowne, and no one knows where that will all play out.

What we do know is that after Beverly Bradford snapped the one photo (above), Loudoun Board of Equalization Chairman J. Scott Littner became quite upset. Twice, he interrupted the meeting to walk over to Bradford, loom over her and berate her, Bradford and witnesses have testified. Then Littner summoned a sheriff’s deputy, who escorted Bradford out of the meeting. And while Bradford was in the hallway, the BOE voted to reduce the tax assessment on a 112-acre chunk of valuable Loudoun land from $49 million to $44 million.

Bradford filed a Freedom of Information Act complaint. The Board of Supervisors urged the BOE to simply apologize to Bradford. Instead, the BOE hired a lawyer who has run up $54,000 in legal bills fighting the complaint and trashing Bradford in court. The Board of Supervisors is refusing to pay, and so the BOE is suing the Supervisors to force them to pay the bill over a simple FOIA complaint.

And the Board of Supervisors is now going to Richmond, seeking legislation to enable it to appoint and oversee the BOE, rather than having it done by the circuit court.

Fun!

Bradford said she couldn’t discuss the lawsuit while it was pending, and Littner couldn’t be reached for comment. David McClure, Bradford’s lawyer, said that “the BOE and its counsel have, in my opinion, expended shocking amounts of time and taxpayer money to present evidence personally attacking Ms. Bradford.”

The BOE’s lawyer, John Flannery, also declined to comment. In court filings, he repeatedly attacks Bradford for her statements about whether or not she had an attorney (she is a journalist) and is seeking sanctions against her. He also presented a legal expert who said Flannery’s billings at $400 an hour were reasonable and his fees of $54,000 so far were perfectly fine.

The relevant background is that the Board of Equalization is where property owners go to contest their tax assessments, whether for homes or businesses. The board is composed of five citizens appointed by the circuit court, but paid by the county.

Bradford is a longtime reporter and photographer for a variety of newspapers big and small, and she currently contributes to Patch.com. On June 28, she happened to learn that the BOE was going to be hearing the tax appeal of the National Conference Center in Lansdowne. The NCC wanted its $49 million assessment lowered, and it hoped to eventually sell a chunk of its campus to the county so Loudoun could build a new high school. Newsworthy stuff, though Bradford was not assigned by Patch to cover it. She went as a private citizen.

Bradford told the BOE’s administrator that she would be attending the meeting that afternoon, McClure said. Then she went home and got her Nikon digital camera. At some point during the NCC’s presentation, Bradford clicked off a shot of Littner. The flash went off, momentarily distracting everyone in the small room. Bradford put her camera away, McClure said.

But a few minutes later, in the middle of the meeting, Littner stood up, walked over to Bradford and berated her, witnesses said. One witness said Littner demanded the camera.

Bradford said little, and the meeting resumed. But a few minutes later, McClure said, Littner again stood up and loomed over Bradford. Not long after that, a sheriff’s deputy was summoned, and he asked Bradford to step into the hallway, McClure said. And while she was outside the room, the BOE decided to approve a $5 million assessment reduction for the NCC, McClure said. Loudoun County has since purchased the devalued land, though many believe it is highly unsuitable for a new high school.

Bradford’s suit argues that she was prevented from attending and photographing the public hearing. The BOE has a rule that says anyone who wants to photograph them must inform its members or staff ahead of time. That wouldn’t seem to be part of the state FOIA law, which in section 2.2-3707 states only that a public body “may adopt rules governing the placement and use of” cameras and microphones “to prevent interference with the proceedings, but shall not prohibit or otherwise prevent any person from photographing, filming, recording, or otherwise reproducing any portion of a meeting required to be open.”

Bradford filed a complaint in Loudoun General District court alleging violations of the state Freedom of Information Act. She asked the court to order the BOE to stop doing that, to attend training in FOIA, to contribute $2,000 to the Virginia Literary Fund and pay her costs.

Upon learning of this, the Board of Supervisors advised the BOE to simply apologize and make the case go away. But the Board of Supervisors is not the BOE’s boss. Instead, the BOE won a court order from Circuit Court Judge James Chamblin forcing the Board of Supervisors to pay $25,000 for an outside attorney, arguing that the county attorney had a conflict of interest.

A trial was held, but not finished after a day of testimony. A second day of testimony also did not end the matter. A third day is scheduled for Monday before District Court Judge Julia Cannon.

As the case dragged on, the BOE demanded the Board of Supervisors allocate another $35,000 to pay Flannery. The Supervisors balked. They wanted the BOE to settle the case, apologize, move on.

“Nobody,” Board Chairman Scott York said, according to Leesburg Today, “ whether it is the Board of Supervisors or the Planning Commission or anybody has the right or ability to restrict the public from recording and taking pictures other than to ask them if they are disrupting the meeting, to ask them to do it in a way that does not disrupt the meeting. Just because you don’t like it doesn’t mean they are disrupting the meeting.”

The county asked the BOE to try to come up with a budget for their epic FOIA defense. Littner responded with six single-spaced pages blaming the legal process, Bradford’s “legally frivolous FOIA” and that she “failed to give the requisite notice so that we could avoid any disturbance.”

Now the two sides are fighting a separate battle in circuit court, and the Supervisors have spent another $28,000 to pay their own outside attorneys to battle the BOE, Flannery’s filings state.

Meanwhile, the Supervisors have tasked Leesburg State Del. Joe May with sponsoring a bill which would amend state law to specifically allow the Loudoun Board to select its own BOE.

McClure said, “The BOE’s inappropriately extensive litigation has turned this matter into the ‘Case of the Century.’ In light of what has been, in my opinion, the inappropriate and disproportionate manner in which the BOE has proceeded with this litigation, we have asked that Ms. Bradford recover her legal expenses.”

Those expenses may seem like small potatoes compared to the damage done when this case and its offshoots are ultimately over.

[This post has been updated].

By  |  10:20 AM ET, 01/26/2012

Categories:  Loudoun County, Politics | Tags:  Loudoun Board of Equalization, Beverly Bradford, Virginia

 
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