Fairfax County Board Chairman John F. Herrity has accused a state legislator from Alexandria of meddling in the county's affairs by assisting a police employe who was demoted after leaking a report that detailed problems in Fairfax's emergency communications center.
Herrity said he was angered that state Del. Bernard S. Cohen had requested from the Virginia state attorney general an opinion that the employe's lawyer subsequently used in winning $12,000 in damages from the county.
Herrity, a Republican, said that Cohen, a Democrat, did not tell the attorney general that a lawsuit was under way and did not tell Fairfax officials that he had requested the opinion.
"I think his conduct was extremely questionable," Herrity said. "When a member of the General Assembly from another jurisdiction gets involved in a Fairfax County case without even talking to us, we tend to get pretty upset."
Cohen said he did not recall making the request and would not discuss it until he had spoken with Herrity.
"I certainly can't comment on it until I give him a response," Cohen said. "We get requests from people asking for the attorney general's opinions all the time and, as a routine matter, we send them on."
Victor M. Glasberg, the attorney for Fairfax employe Robert E. Jurgensen, acknowledged that he had asked Cohen to request the opinion and said that Fairfax officials are trying to distract attention from their treatment of his client.
Jurgensen, the lawyer said, is a "whistle blower" who deserves praise for alerting the public to problems in the communications center.
"Whose welfare are they really worried about?" Glasberg said. "How many people are dying and property not getting protected because they're suppressing their own report?"
Jurgensen, a police department employe, was demoted last year after he told his superiors that he had given The Washington Post a copy of a 63-page report that detailed manpower, equipment and training deficiencies in the center. Jurgensen testified in court that he had leaked the report after county officials failed to improve conditions in the center.
Federal District Judge James C. Cacheris awarded $12,000 in damages to Jurgensen last month and ordered county officials to reinstate him in his former job. The Board of Supervisors has voted to appeal the decision, saying it disagrees with the judge's ruling that the report was a public document under Virginia law.
The nine-member board voted 3 to 1 to appeal the decision after discussing the case in closed session, with Herrity and Supervisors Thomas M. Davis III and Nancy K. Falck voting in favor, Audrey Moore voting against, Marie B. Travesky abstaining, Martha V. Pennino absent and Joseph Alexander, Sandra L. Duckworth and James M. Scott out of the room.
Cohen wrote to Virginia State Attorney General Gerald L. Baliles to ask whether a police report could be withheld under the state's Freedom of Information Act simply because it was labeled confidential. Baliles said that only confidential reports submitted to the police from outside sources were protected, spokesman David Hathcock said.
Glasberg said that he had not referred to the attorney general's opinion during the trial, but had cited it in arguments that he submitted to the court. The attorney general has a policy of not submitting opinions that could affect pending litigation unless requested by the judge to do so, according to Hathcock.
"To the best of my knowledge, the attorney general did not know there was a case pending," Hathcock said. "Certainly, information that it involved pending litigation would have been helpful for us to consider."
Glasberg said that Cohen's request could have applied to any police report.
"It asks a generic question," he said. "It's not about this document; it's not about this case."
Glasberg said that the supervisors should be more concerned over conditions in the communications center, which handles 911 calls for police, fire and other assistance, and over why they did not see the critical internal report until the press obtained it.
"In the face of all this, they're getting all bent out of shape about Bob Jurgensen and Bernie Cohen," Glasberg said. "Can you believe that? Where are their priorities?"
Herrity declared that the board is appealing the decision because an important principle is at stake. "The ability of the county to maintain a viable law-enforcement operation is contingent on confidentiality," he said. "This is not a run-of-the-mill freedom-of-information case."
Herrity also said that Cohen's actions were improper, regardless of the issues in the Jurgensen case.
"It was apparently a private issue between Mr. Cohen and Mr. Glasberg, rather than a public question, which is not the way we think an elected official should use his office," Herrity said. "Especially when he didn't have the courtesy to let us know he was doing it."