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The State of NoVa
Posted at 05:00 AM ET, 04/04/2012

Loudoun judge disbelieves BOE officials, but rules in their favor in costly FOIA case


The photo that launched $100,000 in legal fees. J. Scott Littner, then-chairman of the Loudoun County Board of Equalization, called a sheriff’s deputy to destroy this photo, held a crucial vote when the photographer was out of the room, and then gave an unbelievable account on the witness stand. But a Loudoun judge said that was all fine. (Beverly Bradford)
A Loudoun County judge ruled Monday that the county’s Board of Equalization did not violate the state Freedom of Information Act when its members berated a woman who took a flash photo, summoned a sheriff’s deputy to seize her camera, watched as the deputy escorted her from the room and then took a hugely significant vote while she was out of the room.

But Loudoun General District Court Judge Julia T. Cannon also accepted the version of events given by freelance reporter Beverly Bradford and four other witnesses that board Chairman J. Scott Littner stood up in the middle of the meeting, marched over to the seated Bradford and told her she could not take pictures or record the hearing. Littner and current board Chairman Edward Maurer both testified that Littner did no such thing, so Cannon apparently concluded that the two board members were not to be believed.

Cannon then came to the remarkable conclusions that the board was not required to provide its agenda to anyone, even if asked; that state FOIA law permits a rule requiring advance notice of any photographic intent (it does not); and that the deputy the board called to the meeting and instructed to seize Bradford’s camera “was not acting as their employee or agent.”

Cannon’s eight-page ruling, after four hearings stretched out over five months, is not binding on any other court, and Cannon is retiring at the end of this month. Bradford could appeal to circuit court, but her legal bill is already $17,000 and she can’t afford anymore.

The legal bill to Loudoun taxpayers is $83,000: $55,000 for board attorney John P. Flannery, and $28,000 to a Fairfax law firm that represented the Board of Supervisors when it didn’t want to keep paying Flannery’s bill. Since Flannery won the case, the Board of Equalization need not attend any FOIA training, pay a requested $2,000 to the Virginia Literacy Fund, or pay Bradford’s own $17,000 tab.

To recap briefly, Bradford was a part-time reporter for Patch.com, not on assignment the day she went to the Board of Equalization hearing on the National Conference Center in Lansdowne. The NCC was controversial because it wanted to sell a chunk of its land to Loudoun County for a new high school, which many thought was a bad idea.

When the hearing broke for lunch before the NCC case was heard, Bradford went home to get a camera and digital recorder, and told the board’s administrator she’d be returning to cover the meeting. After lunch, the NCC hearing began, and at some point, according to Bradford and four others, she snapped one photo of Littner and her flash went off. She didn’t intend for it to go off, or to disrupt the meeting, and she promptly put the camera away.

But Littner was incensed. Bradford and the four witnesses testified he stood up in the middle of the meeting, stomped over to Bradford, demanded her camera and told her “she could not take pictures or record the proceedings,” according to Judge Cannon’s ruling. Such a comment from the board chairman would seem to be a clear FOIA violation, but Cannon didn’t seem to mind.

Littner and Maurer said it was actually Bradford who stood up, marched to the center of the room and fired off her disruptive photo, and that Littner never got up. The judge’s recounting of the incident says that Littner “walked over to Ms. Bradford and confronted her sternly,” which would indicate she didn’t believe Littner’s sworn testimony, but again Cannon didn’t seem to mind.

Littner called a recess, “during which time several of the members spoke critically to Ms. Bradford about her taking pictures and recording the proceedings,” Cannon wrote. They then called the sheriff, and Deputy Dale Gardner came on down. Gardner testified that Littner instructed him to seize the camera and destroy the photos. Gardner told Littner he couldn’t do that, but he did agree to speak with Bradford.

With the board members still chattering, Gardner said he asked Bradford to step outside. She said she wanted to stay and see the end of the hearing. Gardner politely insisted, and Bradford left the room. The deputy asked Bradford if she would destroy the offending photo, and she politely declined.

Meanwhile, the board resumed its meeting on the record. It was time to vote on whether or not the NCC would get a multimillion-dollar reduction in its tax assessment. Bradford asked to go back inside, but Gardner said he still needed to talk to her, because the board’s administrator was now calling Loudoun County’s chief circuit judge for further guidance, and the judge might want to talk to her.

While Bradford waited outside, the board voted to grant the NCC’s tax reduction. Loudoun has since purchased part of the NCC’s land at a seemingly excessive cost. Bradford filed a FOIA complaint two weeks later.

Among the many ways that the Board of Equalization did NOT violate FOIA, Cannon determined, was by having its own rule that says anyone who wants to photograph or record the meeting must give the board prior notice. Cannon said this is allowed under Virginia law 2.2-3707 (H).

Here is what the law says: “The public body conducting the meeting may adopt rules governing the placement and use of equipment necessary for broadcasting, photographing, filming or recording a meeting to prevent interference with the proceedings, but shall not prohibit or otherwise prevent”any other photos or recording.

The law, as Bradford’s attorney David McClure noted, does not say anything about a rule requiring advance notice. The board’s rule actually says that “the BOE requests” advance notice, that no advance notice is needed for quiet equipment, and that flash photography may not be used.

Next, Cannon ruled that it was “unfortunate Ms. Bradford missed the portion of the meeting she most wished to see and hear, but the Court does not find the BOE liable for it. Although Deputy Gardner was summonsed [sic] by the BOE after Ms. Bradford had violated their rules, he was not acting as their employee or agent.”

Really? He was summoned by them and told to seize her camera, but not acting as their agent? Does that make any sense?

Cannon then reasoned that “Had Ms. Bradford decided to walk away from the deputy, as she was entitled to do, she could have come into the meeting room.” Yeah, the next time you walk away from an armed officer of the law who is telling you to “stay here,” you let me know how that turns out.

Bradford also complained that the board didn’t make public records available as FOIA requires, that she requested an agenda and wasn’t given one. The board’s assistant said she wasn’t asked by Bradford.

Here, Judge Cannon breaks new legal ground in the definition of “agenda.” The judge wrote, “Even if Ms. Bradford did make the request for an agenda, though, the court finds the Board was not required to comply.”

Virginia FOIA law requires “At least one copy of all agenda packets...shall be made available for public inspection.” Cannon ruled that the law says “agenda packets,’ not ‘agendas,’ to be made available to the public, so her request for an agenda, if made, was not specifically covered” by the law.

Wow. Now it could be argued that an “agenda packet” could include all sorts of confidential financial data that homeowners or businesses wouldn’t want released publicly. Fair enough. Take those out. But a list of whose case is coming up for hearing that day is not a public document? Even Flannery, the board’s lawyer, said in his argument that, “Of course, the agenda for the BOE is not ‘exempt’ and is available.” So even when both sides agreed it was an open record, Judge Cannon declared it was not.

As for finding that the board’s rule requiring advance notice was acceptable, Cannon also concluded that “Ms. Bradford stating she was coming back to cover the proceedings did not constitute sufficient notice of an intention to photograph and record during the meeting.”

In the penultimate paragraph, Cannon acknowledges what the Loudoun Board of Supervisors and many sane people have said all along: “this litigation might have been avoided altogether had the BOE responded more appropriately to Ms. Bradford’s actions during the meeting.” [The supervisors actually passed a formal resolution urging the BOE to apologize to Bradford and settle the suit.] The judge said the photo was only “momentarily distracting” and “did not appreciably disturb the proceedings.”

Then Cannon emphasized that Littner could have waited for a break, “rather than leaving his seat, approaching her before the hearing had adjourned and confronting her where she sat.” Clearly, the judge found Littner had a credibility problem under oath, as well as a temper problem. But she did not comment directly on his truthfulness.

Flannery declined to comment on the ruling, and Littner could not be located for comment.

Bradford said she was first stunned that Littner, “a judicial appointee, using the tactics of a middle school bully, closed the meeting. And nowhere do I see an expression of concern about this by the judge.”She said the issue is the ability of local journalists to cover local government, in this case her attempt to monitor a massive land deal involving Loudoun County government and schools.

“Our role is to show up, be the intermediary and tell people what we know,” Bradford said. As a longtime former newspaper reporter, she said she was used to abuse from government officials. But “If he can do it to me, he can do it to any person.”

Here is the PDF of Cannon’s ruling.

By  |  05:00 AM ET, 04/04/2012

Categories:  Loudoun County, Courts | Tags:  Beverly Bradford, J. Scott Littner, Loudoun County Board of Equalization

 
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