Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bragg v. Board of Supervisors of Rappahannock County

Supreme Court of Virginia

May 17, 2018

MARIAN M. BRAGG
v.
BOARD OF SUPERVISORS OF RAPPAHANNOCK COUNTY, ET AL.

          FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY Alfred D. Swersky, Judge Designate

          OPINION

          DONALD W. LEMONS, CHIEF JUSTICE

         In this appeal, we consider whether the Circuit Court of Rappahannock County ("circuit court") erred by dismissing a petition to enforce the Virginia Freedom of Information Act, Code §§ 2.2-3700, et seq. ("FOIA"), on the basis that the petition failed to comply with Code § 2.2-3713(A) because it was not properly supported by an affidavit showing good cause.

         I. Facts and Proceedings

         Marian M. Bragg ("Bragg") filed an amended petition against the Rappahannock County Board of Supervisors and its individual members (collectively, the "Board"), alleging that the Board "engaged in a pattern of systematically violating the open meeting requirements of FOIA." The alleged violations stemmed from five closed meetings, which the Board allegedly held for the purpose of discussing, among other things, how it would replace the outgoing County Attorney. Bragg alleged, "on information and belief, " that the Board violated FOIA because it improperly discussed "public business matters" during the closed meetings and then, after the meetings, certified that the discussions were exempt from the FOIA open meeting requirements.

         In her petition, Bragg asserted that Board member Ronald L. Frazier ("Frazier") acknowledged the Board improperly discussed certain public business matters during the closed meetings. Frazier's full acknowledgment (the "Frazier Acknowledgement") was notarized and filed as an exhibit to Bragg's petition. It stated, in relevant part:

I acknowledge that the Board's closed session meetings . . . included discussion of public business matters not lawfully exempted from open meeting requirements under [FOIA] with respect to the filling of the County Attorney position.
I acknowledge that the Board violated [Code § 2.2-3711(B)] and [Code § 2.2-3712(H)] when it decided, resolved or voted [on the non-exempt matters] in one or more of the [] closed session(s).
I acknowledge that it was imprudent and in error to vote to certify at the close of each of the aforesaid meetings that the Board's closed session meetings included only discussion of public business matters lawfully exempted from open meeting requirements under [FOIA] with respect to the filling of the County Attorney position, and to the extent non-exempt business was discussed . . ., it was error on my part to fail to state the substance of the departure from the requirements of [Code § 2.2-3712(D)].

         In addition to the Frazier Acknowledgment, Bragg also filed an "Affidavit and Verification in Support of Petition for Enforcement of Virginia Freedom of Information Act" (the "Bragg Affidavit"). The Bragg Affidavit was both signed by Bragg and notarized. It stated:

THIS DAY personally appeared before me, the undersigned Notary Public, Marian M. Bragg, who, upon being duly sworn by me, stated under oath that all of the allegations in the attached Petition for Enforcement of the Virginia Freedom of Information Act are true and correct, except to the extent therein stated to be on information, and to such extent she believes them to be true.

(emphasis in original).

         The Board responded to the petition by filing a demurrer, plea in bar, and motion for summary judgment and dismissal. The circuit court issued a letter opinion on March 15, 2017, in which it granted the Board's motion to dismiss. The court held that "[t]here [was] a procedural defect in the initiation of the [] proceedings" because the petition was not supported "by an affidavit showing good cause, " as required by Code § 2.2-3713(A). The circuit court found that the Frazier Acknowledgment was not a proper affidavit because "[t]here [was] no showing that the document was sworn and it contain[ed] no jurat."[1] The court further held that, even if the Frazier Acknowledgment were in "proper form, " the document nevertheless failed to "furnish the [requisite] good cause" because it contradicted Frazier's prior certifications, pursuant to Code § 2.2-3712(D), that the closed meetings were lawful.

         The circuit court also held that the Bragg Affidavit was not an "affidavit showing good cause." The court first found that the Bragg Affidavit failed to comply with Code § 8.01-280 because the oath excluded the allegations in the petition that were "stated to be on information, " which constituted the "gravamen" of Bragg's petition. The court further ruled that the Bragg Affidavit was insufficient because the "petition, and hence the affidavit, fail[ed] to set forth the basis of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.