Attorney’s fees could have been steeper were it not for judge
Rappahannock County taxpayers aren’t off the hook by any stretch despite Judge Designate Jeffrey W. Parker awarding attorney David Konick a mere $6,250 of the $132,769.46 in attorney’s fees he claimed he was owed in representing Marian Bragg v. The Board of Supervisors of Rappahannock County.
That said, the lawsuit filed by Bragg could have been far more costly to taxpayers.
While an exact dollar amount has yet to be calculated by the Rappahannock County government, Treasurer Debra Knick said this week, it is safe to assume the county has already paid $50,000-plus in outside attorneys’ fees to defend itself in the FOIA-related case, which doesn’t include hundreds of hours both the county attorney and deputy county attorney spent in defending the charges.
Konick’s paltry slice of the pie, dished out August 28 in a rewritten opinion by Judge Parker of the Twentieth Judicial Court of Virginia, might have been more difficult for taxpayers to swallow had Bragg’s counsel chosen to settle this first of two FOIA lawsuits filed by his client against the county government.
The petition claims that the supervisors violated FOIA by discussing various matters relating to the search for a replacement for then-Rappahannock County Attorney Peter Luke. Bragg alleges the matters discussed were not legitimately exempted from FOIA’s fundamental assumption that government business is public. Luke retired at the close of 2016 and the BOS named Commonwealth’s Attorney Goff as his successor.
Mike Brown, the county’s primary outside counsel who assisted Goff in fighting the lawsuit, confirmed last February as Bragg 1 approached trial that both parties tried to settle the case, but no agreement was reached.
The BOS at its July 2018 meeting voted 4-1 in favor of authorizing Goff to meet with Konick to explore what settling the case would entail. In an email to the News the next day, Goff indicated that he had approached Konick to discuss a potential settlement.
“Mr. Konick did not provide me with a dollar figure, although I have asked him for it,” Goff said.
No cat chow for Konick
Arguably there would have been just cause to settle with Bragg. There were additional lawsuits piling up against the county government, not to mention other routine court matters for Goff to handle. To assist the county attorney with the extra workload, the board voted to rehire Luke as a deputy county attorney, while Brown of the Walker Jones law firm would continue working Bragg 1 on a contractual basis.
Furthermore, the county wasn’t insured (as it is now) against litigation like Bragg 1.
If those weren’t reasons enough to pay Konick and his client to go away, Brown in a December 2018 report to the BOS speculated that Bragg 1 alone could end up costing six figures — footed by the taxpayers.
In a lengthy sit-down interview with this newspaper in March 2020, Goff and Luke were asked why the county didn’t settle a case like this that had dragged on for several years?
“I was ordered by the board to flesh out a settlement,” Goff replied. “[Konick] refused to give me a dollar figure. This is almost two years ago. … [I told the board] I’ve attempted earnestly to get him to give me a dollar figure, ‘How much do you want?’ He wouldn’t do it . . . ”
But Goff also revealed: “I advised the board in open session, individually, and in closed session that if you are to settle with Konick you invite more lawsuits. You are essentially putting cat food on your deck for all the wildcats in the neighborhood.
“My quote to them was ‘No cat chow for Konick.’”
In the earliest days of the lawsuit, Konick offered the named supervisors — Chair Roger Welch (Wakefield), Chris Parrish (Stonewall-Hawthorne), John Lesinski (Hampton), Mike Biniek (Piedmont), and Ron Frazier (Jackson) — a way out, albeit on his terms: in short, any individual who acknowledged violating FOIA in writing would be dropped as a party to the suit.
Only Frazier accepted Konick’s deal. But after being removed as a named party in the petition, Frazier sought outside counsel and ultimately sued the BOS to cover his legal expenses. Goff pointed out that he could not represent Frazier as he was no longer a named party to the suit.
Meanwhile, with no settlement in the case, Konick held out for whatever fees Judge Parker would see fit to award. Bragg’s lawyer noted that “the Virginia Code provides for an award of attorney’s fees in the event a FOIA challenger ‘substantially prevails’ in the matter.
“In light of the public interest aspects of this matter, I am willing to accept employment in the case for whatever fees the Court sees fit to award, if any, pursuant to Virginia Code Section 2.2-3713(D), based on my regular hourly rates [of $250].”
In recent days Konick submitted for the court’s consideration two documents, totaling nine single-spaced pages, listing dates and services rendered from Sept. 21, 2016 to Aug. 24, 2020, a period of almost four years.
Under oath, Konick testified that the documents represented “a true and accurate accounting of my time and expenses” that he compiled by reviewing his own files, invoices, and correspondence. He told the court that Bragg had paid all but about $1,500 in court reporter fees.
Parker, at the same time, questioned Konick about how he had arrived at charges for time spent.
“I’m trying to figure when you prepared [the first document],” the judge said. “And how do you know you spent the time you say [you spent]?”
According to a letter of agreement signed by Bragg on Sept. 26, 2016, Konick charged his client a “non-refundable retainer of $1.00” and acknowledged that he would take the case on a contingency basis: He would charge no attorney’s fees, but would expect to be paid by the county if Bragg “substantially prevails.”
But in the opinion of the judge, Bragg did not prevail.
In issuing his decision two weeks ago, Judge Parker wrote to Messrs. Konick, Goff and Brown: “There were numerous issues upon which the Petitioner [Bragg] failed to prevail . . .
“Therefore,” he continued , “the Court will grant the Petitioner 25 hours in attorney's fees at his going rate of $250/hour (which the Court finds reasonable) totaling $6,250.00 plus $4.00 in costs equaling $6,254.00 to be paid within 30 days from entry of the Order, less $200.00 in unpaid discovery charges.”
Bygones be bygones
Asked outside of the Rappahannock County Courthouse this week if he had any reaction to Judge Parker’s decision on attorney’s fees, Goff shook his head no.
“Let bygones be bygones,” he said, before ducking back into court.
But it’s worth repeating what Goff had stressed earlier in his and Luke’s interview with this newspaper, on the heels of Judge Parker rejecting Bragg’s claims that the board acted willfully and knowingly to violate FOIA.
“It’s important for the public to know that we actually substantially prevailed,” Goff said. “My clients didn’t do anything wrong and their reputations have suffered from this litigation when they did nothing. Nothing!”
Supervisor Parrish said this week that even “if there had been any shadow of the doubt, the [judge’s] rewritten opinion completely exonerates all of the supervisors’ actions.”
Speaking further Wednesday morning, Parrish told the News: “In my opinion the purpose of the [Bragg] lawsuit had nothing to do with trumped up FOIA violations, but was an avenue to thwart the board in hiring a [county] attorney that Mr. Konick and Mr. Frazier objected to.”
Reached by telephone, Bragg, a llama farmer in Gid Brown Hollow, told this newspaper that any reaction to Judge Parker’s decision would have to come from her attorney.
Konick had no immediate response to our request for comment.
— Patty Hardee contributed this report.
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