Citizens, taxpayers, voters:
We’ve been in close contact with Brett Gloss and other plaintiffs who filed the Freedom of Information Act (FOIA) legal complaint against the Prince William Board of County Supervisors (BOCS) Democratic majority regarding the Dems’ 31 May meeting that illegally excluded the 3 Republican BOCS 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, Brett, 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 5 Dems 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 31 May 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 FOIA 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 3 BOCS members from the meeting, why didn’t even one of the 5 Dems, particularly Chair Wheeler, bother to call and invite even one of the 3 Republicans as soon as it was obvious they weren’t at the meeting — particularly Supervisor 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 3 Republicans for excluding them — in clear breach of common decency and her role as at-large BOCS chair representing the entire county?
This ruling, if left unrevised, sets a very dangerous precedent that will increasingly put local government decisionmaking 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 BOCS meetings, as well as the right to peaceably assemble.
WHAT YOU CAN DO: Since the state and county government are not doing their job to litigate FOIA law in this case, it falls to private citizens 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. [See: https://gf.me/u/yaamck (the GoFundMe site also linked above) and https://pwcbg.org/2020/10/judges-ruling-on-prince-william-supervisors-actions-sets-dangerous-precedent-what-you-can-do/ and https://potomaclocal.com/2020/10/20/opinion-judges-ruling-on-prince-william-supervisors-actions-sets-dangerous-precedent/ (this article on the pwcbg.org and Potomac Local websites). Please share any and all of the links above via email, social media, etc.]
We thank the plaintiffs for their civic virtue; we support them and urge readers to do so, too.
Ralph & Kathy Stephenson
Prince William Citizens for Balanced Growth
Only in the bright light of public scrutiny can the common good be secured,
while in darkness and obscurity the interests of the powerful and affluent prevail.