Opinion: Judge’s ruling on Prince William Supervisors’ actions sets dangerous precedent

By Ralph & Kathy Stephenson
Prince William Citizens for Balanced Growth

We’ve been in close contact with Brett Gloss and other plaintiffs who filed the Freedom of Information Act legal complaint against the Prince William Board of County Supervisors Democratic majority regarding the Dems’ May 31 meeting that excluded the three Republican supervisors.

We are writing this message with the plaintiffs’ knowledge and support.

We support the plaintiffs’ current intent to file a motion to Fairfax County Judge Dennis J. Smith to reconsider his decision and, if unsuccessful, after that to possibly file an appeal.

As we, Gloss, and his co-plaintiffs have suggested, the judge failed to look at the statute in plain language and imposed an insurmountable bar which required the plaintiffs to prove intent. The statute does not require proof of intent, only that the five Democrats attended and public business was discussed.

Judge Smith also inappropriately applied the public forum exception because, in his view, the defendants did not arrange the meeting, thus the meeting was not subject to FOIA law.  But testimony from the defendants clearly established that the police chief arranged the meeting, and the police chief, of course, reports directly to the BOCS.  The judge’s judicial activist reasoning in this case creates a huge loophole for future violators to keep the public in the dark:  just get a subordinate office to schedule the meeting.  A county government entity arranged the May 31 meeting and only select members of the public — those with ties to Supervisor Bailey’s husband — were able to attend.  County citizens and the press were kept in the dark.

Here are some of our unanswered questions about the judge’s ruling:

• Why did it fall to private citizens to file suit in this case and be subject to a high-hurdle burden of proof?  Why were county or state attorneys/prosecutors not even investigating this apparent Freedom of Information Act violation, much less bringing charges themselves, with all the resources of the state behind them?
• As previously noted, proof of intent is not a requirement to show guilt in this case.  However, from an ethical, not a legal standpoint, if innocent of intent to exclude the other three Board of County Supervisors members from the meeting, why didn’t even one of the five Democrats, particularly Chair At-large Ann Wheeler, bother to call and invite even one of the three Republicans as soon as it was obvious they weren’t at the meeting — particularly Supervisor Peter Candland, whose district was directly affected by the riots being discussed?
• Again from an ethical standpoint, why has Chair Wheeler apparently still not apologized to the public or any of the three Republicans for excluding them — in clear breach of common decency and her role as at-large Board of County Supervisors Chair At-large for representing the entire county?

This ruling, if left unrevised, it will increasingly put local government decision making in the shadows with little or no accountability — an outcome clearly desired by Chair Wheeler, who has repeatedly and unprecedentedly tried to limit citizen free speech and the right to petition the government at Board of County Supervisors meetings, as well as the right to peaceably assemble.

Since the state and county government are not doing their job to litigate Freedom of Information Act law in this case, it falls to private residents to do so.  Here is the plaintiffs’ GoFundMe site to cover their ongoing legal fees to help keep our government transparent, accountable, and in service to all the public — not just a few favored groups.

We thank the plaintiffs for their civic virtue; we support them and urge readers to do so, too.