As noted in our story on approval of a half-million-dollar increase (to $760,000) in County funding of the financial investigation (forensic audit) and consequent litigation resulting from that investigation of FR-WC Economic Development Authority finances
during the executive leadership of Jennifer McDonald, the specter of institutional wrongdoing and a lack of municipal oversight to prevent it permeated the April 2nd meeting of the Warren County Board of Supervisors.
SEE RELATED STORY:
Not long after County Board Chairman Dan Murray’s pre-meeting call for a collective effort to return “peace and tranquility” to the community it continued when two of three public comments speakers addressed the EDA situation. Cheryl Cullers, who said she would be running as an independent to replace the retiring Linda Glavis as South River District supervisor, called for the creation of a “fraud-waste-abuse hotline”.
“The residents are angry and they want to get to the bottom of what happened to the EDA. They also want to stop this from ever happening again … There is a healing process that must begin now,” Cullers told the county board she seeks to become a part of.
Then Kristie Sours Atwood, who told this reporter she is also pondering a run for South River supervisor, rose to call the EDA audit “a farce – there are so many holes in it,” she said of her exploration into what is known, though according to EDA officials no one outside the EDA Board of Directors has physically seen a draft of the still-evolving report.
Atwood, who has filed suit against the County over alleged conflicts related to building inspection department approvals and review of what she contends was flawed construction of her home by a local builder, asked that no payments be made to the Aikens group and its various legal entities until the final EDA audit report is released.
Four-and-a-half months ago on November 28, 2018, the Aikens group became owner of the 3.5-acre workforce housing parcel at the end of Royal Lane off the Route 55 East entrance into Front Royal. The much-ballyhooed as of 2015 EDA workforce housing project is cited in the EDA civil litigation as one of several projects from which funds are alleged to have been embezzled.
SEE RELATED STORY:
Workforce Housing WHAT?!?
“They’ve got a lot of skin the game,” Atwood said of Aikens Group – actually not that much according to a November 28, 2018 Deed of Sale from the EDA to the Cornerstone LLC branch of the Aikens group. The price of that transfer of ownership from the EDA to the Aikens Group was ten dollars.
If not as good as the one dollar deal given to Truc “Curt” Tran and his ITFederal LLC for 30 commercial acres at the Royal Phoenix Business Park site, it was still a pretty good one considering that in April 2017 the EDA board agreed to pay $445,000 for the 3.5-acre parcel initially presented as a late 2014 gift to the EDA for community development.
Asked if the EDA purchased the property for $445,000, why it would sell it to the Aikens Group for $10, a loss of $444,990 by our calculations, Dan Whitten noted he had been conflicted out of the transaction in his duel County-EDA attorney roles.
EDA Board Chairman Gray Blanton, who signed the November 28, 2018, Deed of Sale to the Cornerstone LLC branch of the Aikens group, did not respond to a phone message question about the purchase and sale. EDA officials have been advised not to discuss matters related to the civil litigation filed on their behalf. And as noted above, the workforce housing project is on the lawsuit list of projects from which money is alleged to have been embezzled.
The workforce housing projects dates to late 2014 when a Deed of Gift was arranged to the EDA from local realtors Walter and Jeanette Campbell for their 3.5-acre parcel at the end of Royal Lane off the John Marshall Highway/Route 55 East entrance into Front Royal. As later explained by EDA Executive Director Jennifer McDonald, who is the Campbell’s niece, the couple would receive a federally-generated tax credit for the undeveloped property in exchange for the land gifted to the EDA for economic development.
As that Deed of Gift situation unraveled in 2017, at one point McDonald asserted that the Aikens Group had been involved in the workforce property transfer from near the beginning, agreeing to a purchase from the original owners at the price on the Campbells Deed of Gift to the EDA. As for the absence of any mention of Aikens’ involvement prior to 2017, McDonald alleged that the regional developer did not want its name tied to the project publicly due to competitive advantage issues.
During a November 2016 Front Royal Town Council discussion of special exceptions requested by the EDA for the workforce housing project to be built on a dead-end street, Town Planning Director Jeremy Camp referenced a funding stream through the “Home Consortium” that the Northern Shenandoah Valley Regional Commission managed. Faced with questions from Councilwoman Bébhinn Egger about a $445,000 price attached to the Deed of Gift, the town planning director suggested further clarification from McDonald who was present at the 2016 council meeting.
Pressed by Egger for reasons the $445,000 price – the property was then assessed at $310,000 – appeared on the Campbell’s Deed of Gift to the EDA, McDonald explained that the former owners got a tax credit based on the price listed on the Deed of Gift.
“That’s the amount of our Home Fund. It’s not actual money we ever had our hands on; that’s Home Funds that go directly from the DHUD to the property owner, so it’s never money that we see,” McDonald said of the EDA and the price listed on the Deed of Gift. Royal Examiner’s research at the time indicated that the federal tax credits were based on a third of the value of the involved property, thus apparently explaining the need for a price on a Deed of Gift.
SEE RELATED STORY:
At the time Royal Examiner research into that funding stream indicated it was regionally-administered money, by the Northern Shenandoah Valley Regional Commission, originating in a federal Department of Housing and Urban Development (HUD or DHUD) program.
Despite council approval of the requested zoning permit exceptions, the project floundered with no apparent site work being done. In 2017 McDonald pointed to delays in town and DEQ permitting as reasons for delays.
Following an April 28, 2017, EDA board closed session it was announced that a failure to meet a previously undisclosed developmental deadline related to the Campbell’s tax credit eligibility would negate the deed of gift. McDonald elaborated that the deadline was part of confidential agreement between the Campbells and the EDA on the exchange of the property. In the wake of the unmet deadline the EDA’s options were to deed the land back to the Campbells or purchase it.
SEE RELATED STORY:
Asked about the decision to purchase following the meeting, McDonald said the EDA had already spent a half-million dollars in preparatory work, including site planning, engineering, town and state DEQ permitting fees, so the board decision was that it would be best to proceed with the transaction as a purchase, rather than abandon the project and site at this point.
“We’re frugal,” then EDA board Chair Patty Wines commented.
In reaction to that change in the workforce housing dynamic adding over $440,000 to the EDA’s cost of the project, one town official reacted angrily at a subsequent May 2017 council meeting.
“I feel extremely manipulated, not only as a councilman, but also as a town citizen. We were told by Jennifer at our public meeting in November that the $445,000 price was from an appraisal. That was false. I even pointed out that the assessed value was much, much lower,” Councilwoman Egger began.
“We were told that we had to abandon all logical planning practices to build on THIS particular lot, because the land was being donated. That is now also false,” Egger said of the April 2017 explanation of the new dynamic requiring an EDA purchase of the workforce housing property.
SEE RELATED STORY:
“Are we supposed to believe that the EDA is so incompetent that they can’t meet a deadline two and a half years later? I don’t believe that for one second,” Egger told her colleagues, adding, “Why is the agreement between the EDA and the Campbells confidential? … Why is the EDA continually hiding behind confidential agreements and permitting processes?”
Egger then concluded with an observation that seems particularly timely in the spring of 2019 as the community awaits the next legal filings to drop following a now $760,000 forensic audit of EDA finances over the past decade.
SEE RELATED STORY:
“It gives me little hope for the future of our town, knowing that the council blindly went along with approving this project, even though the numbers didn’t add up; it will create a planning nightmare, and the information provided to us was lacking. The EDA can pass the buck all they’d like, but those of us with our eyes open see this for what it is: another botched project where none of the numbers make sense, all of the pertinent information is confidential, and the council and public are given false information which is never retracted and never apologized for.”
If not the community, Egger, now Bébhinn Rowland of Maryland, received May 25, 2019 apologies from Mayor Hollis Tharpe and Councilmen Eugene Tewalt and Jacob Meza for their roles in minimizing Egger’s questions and council’s collective unwillingness to explore the myriad issues about EDA processes presented by their colleague at the time.
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SEE RELATED STORY:
Did Town Council’s December 1 ‘Special Closed Meeting’ violate multiple FOIA laws?
Royal Examiner editorial department staff have occasionally pondered the often overly vague language of motions used to adjourn to Executive/Closed Sessions, particularly on the Town side of local municipal government. Those motions and the information in them are guided by Virginia Freedom of Information Act (FOIA) standards on a variety of levels. Royal Examiner recently contacted Virginia FOIA Advisory Council Executive Director Alan Gernhardt about those standards, particularly as they applied to a December 1 “Special Closed Meeting” of the Front Royal Town Council called by Mayor Chris Holloway.
Gernhardt’s response referenced a history of Virginia FOIA Advisory Council opinions on the state standards for balancing the public’s right to know how they are being governed by their elected officials and those officials’ occasional need for some degree of secrecy, generally in competitive bidding, property transactional, legal, and personnel matters. How the wording of motions to adjourn to Closed/Executive Session must balance these sometimes-conflicting standards in a democratically based but also economically competitive and sometimes legally contentious society, revolve around three elements. Those are (1) the subject of the closed meeting; (2) the purpose of the closed meeting; and (3) reference to the applicable FOIA law section exempting the meeting from the public view.
“The law clearly states, and this office has previously opined, that a motion that lacks any of these three elements would be insufficient under the law,” one example of an earlier state FOIA Advisory Council opinion Gernhardt provided to Royal Examiner states. However, it adds that: “… when identifying the subject of a closed meeting, the subject need not be so specific as to defeat the reason for going into the closed session but should at least provide the public with general information as to why the closed meeting will be held.”
This information takes us to the motion used to convene the December 1 Special Meeting closed session announced the previous day. That motion circulated with the “Town Council Special Closed Meeting” agenda prior to the meeting, reads in its entirety: “I move that Town Council go into Closed Meeting pursuant to Section 2.2-3711.A.7 of the Code of Virginia for consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation involving a former employee of the Town, where such consultation or briefing in Open Meeting would adversely affect the negotiating or litigating posture of the public body.”
For starters, the passage “pertaining to actual or probable litigation involving a former employee” seems far too vague to comply with state FOIA statutes since the discussion seemingly involves only one former employee, hence one litigation – So, which is it, actual or probable litigation?
The question is an important one because whether the litigation has been filed and has appeared on a court docket impacts the degree of specificity or vagueness with which the “subject” or “purpose” of the meeting may be described. For unfiled litigation, Gernhardt told us such descriptions as “litigation with a former employee” are sufficient to meet FOIA requirements because “it says more than just ‘litigation matters’ while not disclosing the actual nature or details” of a case yet to be filed on a court docket.
Regarding legal cases that have been filed with detail of an alleged cause made by a specific party made public through the court system, Gernhardt said somewhat more specificity is required. “For litigation matters, I generally would recommend using the style of the case if it has already been filed and appears on a public docket,” he said. “Style” in this case appearing to reference at base minimum, whom the litigation is with. That is the policy that Warren County and its post-financial scandal, re-tooled Economic Development Authority (EDA) have taken with all motions on existing litigation.
Just two days after town council’s vaguely adjourned to Special Closed Meeting of December 1, the County EDA adjourned to a 12-item Closed Meeting that included six real estate, four legal, one bank re-financing/legal, and one personnel matter. ALL 12 matters were identified as to “subject” by name with some degree of purpose though not to a degree to defeat the purpose of having the discussion behind closed doors by FOIA requirements. Ironically, three of the four legal matters related to litigation between the County EDA and the Town of Front Royal municipal government. We will include that litigation portion of the EDA motion to illustrate what we believe is a FOIA-compliant motion into closed on existing legal matters, now being used by both the County and its EDA:
“4. CLOSED MEETING Dec. 3, 2021, motion into: … · 4 matters – Consultation with legal counsel and briefings by staff members pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body, EDA v. Jennifer McDonald, et al., EDA v. Town of Front Royal, Town of Front Royal v. EDA, and legal advice related thereto and regarding other matters relating to claims of the Town of Front Royal pursuant to Va. Code §§ 2.2-3711.A.7 and 8.”
To contrast, let’s revisit the Town motion in question as presented and approved in that meeting’s minutes as having been read into the record by Vice-Mayor Lorie Cockrell, seconded by Letasha Thompson: “I move that Town Council go into Closed Meeting pursuant to Section 2.2-3711.A.7 of the Code of Virginia for consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation involving a former employee of the Town, where such consultation or briefing in Open Meeting would adversely affect the negotiating or litigating posture of the public body.”
On the Town side it appears one of the three elements required by FOIA law – “subject” is missing in that whether it is an unfiled “probable” litigation or an “actual” litigation that has been filed, say for example former Council Clerk Jennifer Berry’s federal sexual harassment suit, at the time scheduled for trial in February 2022, is not specified.
And were it to be filed litigation that was discussed behind closed doors December 1, is it possible a second key element, “purpose”, is missing? For the only purpose cited in the motion is “consultation with legal counsel and briefings by staff members or consultants”. Could that be enough “purpose” to satisfy FOIA law regarding “actual” litigation in what was called as an “emergency meeting” as will be discussed in more detail here later; or would additional detail such as “discussion of approaching filing deadlines” be required?
Royal Examiner spoke to Jennifer Berry’s attorney, Tim Cupp, in her suit against the Town on December 1st looking for clues the closed session might have been called regarding his client’s case. While declining to speculate why the mayor had called that special closed meeting, Cupp did note that December 1 was the final day for Discovery motions filings in the Berry case on the Harrisonburg federal Western District of Virginia docket slated for trial in February. Could it be a coincidence that within days of the Front Royal Town Council’s “Special Closed Meeting” of December 1, the Berry vs. Town of Front Royal federal sexual harassment trial in which Mayor Holloway has been named as a figure in alleged attempts to have Berry withdraw a related internal complaint involving former vice mayor and councilman William Sealock, was rescheduled to May 2022?
Ultimately, as Gernhardt pointed out to Royal Examiner, a determination on meeting FOIA law compliance would be determined by a judge were a complaint to be filed that it had not been in a particular case. Gernhardt also provided Royal Examiner with a Virginia Supreme Court ruling, BEVERLY COLE, INDIVIDUALLY, ET AL. v. SMYTH COUNTY BOARD OF SUPERVISORS, ET AL. (No. 17120 May 28, 2020), which overturned a lower court decision, and mandates the above-referenced “subject” and “purpose” standards.
In that case, the Virginia Supreme Court ruled unanimously that the Smyth County Board of Supervisors used an improper motion to go into closed session and talked about matters beyond the scope of the claimed exemption.
While exploring FOIA law regarding the above issues of adequate “subject” and “purpose” standards being met in convening the December 1 “Special Closed Meeting” two other factors attracted Royal Examiner editorial staff’s attention. Those were, first, the short turnaround on notice of the meeting being circulated, approximately 27 hours, as opposed to the three-day minimum public notice for non-emergency special meetings; and second, the fact that both access doors to the section of the Front Royal Town Hall where the special meeting was taking place were locked while the meeting was still in progress.
Locked Out or Not Locked Out?
Notice of the council special meeting emailed to the media at 3:22 p.m., Tuesday, November 30, by Town Administrative Assistant and Council Clerk Tina Presley read: “The mayor has called a special closed meeting for Wednesday, December 1, 2021, at 6:30 p.m. in Town Hall.”
With a Town Planning Commission work session on a new short-term tourist rental ordinance under development scheduled for 6 p.m. in the second-floor meeting room town council normally uses for meetings at Town Hall, it was unclear exactly where that council special meeting would be held. In response to inquiries, it was eventually determined to be somewhere in the Finance Department section of Town Hall. That section is on the Crescent Street/Afton Inn side of the first floor of Town Hall to the left as you enter the primary, East Main Street entrance.
We note this because when the December 1st planning commission meeting ended around 7 p.m., the two media present, this reporter and Alex Bridges of the Northern Virginia Daily, attempted to enter the Finance Department section of town hall to ascertain if the council special meeting was still in progress and await its adjournment for any announcement or action. Finding the access door locked, we sought the assistance of Planning Director Lauren Kopishke, mingling with planning commission members on their way out of town hall. Surprisingly, Kopishke found that her access code credential was somehow disabled, preventing her assisting media access to the area of the council special meeting.
Press also established that the rear parking lot outside access door, the only other entrance to that section of the building, was also locked between 7:15 and 7:30 p.m. Town Manager Steven Hicks later informed the press that once out of closed, the open meeting was adjourned at 7:46 p.m. without any announcement or action.
So, in addition to questions about FOIA public disclosure standards being met, the additional question of public/press access to the open portions of the special meeting were raised. Questioned about this, Hicks told Royal Examiner that the doors in question had been unlocked at the meeting’s convening and adjournment, so that any public or press present could have accessed the open portions of the meeting. Unfortunately, no member of the press or public, to our knowledge, was present at those specific times of 6:30 and 7:46 p.m. to test that timely locking and unlocking scenario.
Special or Emergency Meeting?
Council Clerk and Administrative Assistant Tina Presley sent media an e-mailed notice of the meeting at 3:22 p.m. Tuesday, November 30, some 27 hours prior to the meeting’s announced 6:30 p.m. open session starting time the following evening. In a Dec. 2nd telephone conversation regarding the special meeting’s announcement, Ms. Presley relayed to Royal Examiner’s Norma Jean Shaw, “I just did what the mayor asked me to do.” When asked why she didn’t post the meeting notice on social media or the Town’s website Presley stated, “I guess I could have, but I only sent it to the three local reporters who normally cover the council meetings.”
The fact the meeting was bypassing the normal three-day minimum public notice of municipal government meetings indicated that it was not only a “special meeting,” but an “emergency” one requiring immediate attention for one reason or another.
Was there sufficient reason, as the town manager contends there was, to designate an “emergency” meeting that allowed less than three-days’ public notice? Because of the ongoing refusal of the town administrative or contracted legal staff to elaborate on the subject or purpose of what is now admitted to have been closed session discussion of existing litigation, your guess is as good as ours. But is the fact we are still guessing at answers to numerous questions about that behind-closed-doors meeting an indication that the Front Royal Town government is in ongoing violation of Virginia Freedom of Information Act standards?
Perhaps a judge will tell us.
Warren County EDA reaches bank agreement on McDonald parcel, moves C-CAP rental forward among other actions in final meeting of 2021
The Board of Directors of the Front Royal and Warren County Economic Development Authority (EDA) held the combined November and December meeting via Zoom. All Board members attended the meeting.
The Board adopted two resolutions. One resolution to approve C-CAP using Suite C located at the EDA office building to store food for distribution. The use of Suite C is at no cost to the organization while it transitions to a lease in Suite B and C-CAP will provide evidence of an insurance policy to cover the use of Suite C. The EDA and C-CAP will negotiate the terms of a lease on Suite B and possibly Suite C at the Kendrick office location at an agreed rental rate.
The second resolution authorizes the EDA Chair and Treasurer to finalize details of an agreement with Atlantic Union Bank where it gives up its claim in the Jennifer McDonald bankruptcy and the EDA will release its claim on the property formerly owned by “Little Rugratz” on Virginia Avenue. The existing bank loan is more than the value of the property and the release of the EDA claim allows the bank to sell the property. In return, by the bank releasing its claim in the bankruptcy, the EDA can recover a higher percentage of the recovery from the McDonald bankruptcy and save money in attorneys’ fees.
The Board is working with Public Works to address the maintenance issues at the Kendrick Lane building including HVAC repairs and installation of water shut-off valves.
The EDA and County are working on soliciting bids for appraising all the EDA properties. The first priority is the Baugh Drive building.
Chair Jeff Browne updated the board on Nature’s Touch and the VDOT grant. Scott Jenkins stated all the marketing material for the Commonwealth is updated and was approved by VEDP (Virginia Economic Development Partnership).
Greg Harold presented the final draft of three Standard Operating Procedures (SOP) that will be used as guides for EDA and prospective purchasers of EDA property. He stated the documents were not “static”, but are “living” documents that will be modified as needed. The three SOPs approved are Letters of Intent, Contract Management, and Property Disposition Due Diligence. The documents will be posted on the website by December 15.
The EDA and Warren County are working on a Memorandum of Understanding (MOU) to govern the transition of EDA’s staff moving to the County payroll and EDA’s role in future economic development in the county. One change beginning immediately is the County will permanently take over receiving and coding EDA bills prior to the EDA Chair and Treasurer approving the expenses.
The EDA Board approved the meeting schedule for 2022 and future meetings will be in person. The next EDA meeting will be on Friday, January 14th at 9 a.m. The location will be posted on the website as well as the remaining dates for 2022.
(From an EDA Press Release of December 5th)
Little civil consequence of more criminal prosecution delays in EDA case
Contacted about the new dates in late 2022 of trials in the now federal prosecutor-handled criminal indictments against former Front Royal-Warren County Economic Development Authority (EDA) Executive Director Jennifer McDonald, current EDA Board of Directors Chairman Jeff Browne said while it has little, if any, impact on the EDA’s civil litigation seeking recovery of assets, he understands public frustration from continued delays on the criminal side of the EDA financial scandal.
“I don’t believe the delay in the criminal case impacts our civil case. We have no control over the criminal case, but it is frustrating that Warren County residents must wait so long for justice to be served. I understand the reasons for the delay, but it still is frustrating,” Browne told Royal Examiner.
The reason for the delay continues to be, as it has been from the outset for the most part, the volume of evidentiary documentation in the case, as well as the introduction of new attorneys into the legal equation who must absorb the information in that documentation estimated at well over a million pages.
Most recently, federal Judge Elizabeth Dillon granted McDonald’s newest attorney, court-appointed Andrea Harris’s request for a continuance of McDonald’s criminal trials slated for the first week of this month. The federal prosecutor from the Western District of Virginia did not object to the continuance. Consequently, new trial dates between October 11 and November 18, 2022, are now on federal docket. Since the delay came at the request of the defense, speedy trial guidelines will not come into play.
As Royal Examiner previously reported, on August 31 McDonald was re-arrested on a 34-count indictment handed down by the Western District of Virginia Federal Prosecutor’s Office in Harrisonburg.
Of those 34 counts, 16 were for money laundering, 10 for bank fraud, 7 for wire fraud, and 1 count of aggravated identity theft regarding someone identified as “T.T.” – our best guess representing ITFederal principal Truc “Curt” Tran. The 40-paragraph True Bill elaborating on the charges to a Harrisonburg Grand Jury is dated August 25, and signed by then-Acting U.S. Attorney Daniel P. Bubar. McDonald was once again released on bond.
The charges and outline of the case in support of them echo earlier criminal indictments filed at the state level before the State Special Prosecutor’s Office in Harrisonburg turned the case over to federal authorities in late 2019. The state special prosecutor had dropped the indictments it had filed to avoid speedy trial issues due to the volume of evidentiary material – estimated at 800,000 to over a million pages at the time. Failure to meet speedy trial deadlines could have led to defense motions for dismissal of charges on the criminal side of the EDA financial scandal case.
EDA emerges from lengthy Closed Session to consider assistance to Angel Tree Program and C-CAP winter food storage
(Editor’s note: The Salvation Army notified Royal Examiner that their holiday toy collection/distribution program is known as Angel Tree, as opposed to the Marine Corps Toys for Tots effort. We in turn notified the EDA Board Chairman and received permission to make the correction to this press release.)
The EDA Board of Directors met today for their regular monthly meeting. All board members were present along with legal counsel. The Board went into closed session for approximately two and half hours to discuss transition, personnel, loan restructure, and disposition of property. The Board returned to open session at approximately 11:30.
The Board discussed the transition and how the county and the EDA were working well together. Taryn Logan, Assistant County Administrator, is also the Interim EDA Executive Director working on new prospects and marketing of EDA property. Ed Daley, County Administrator will work with the EDA on current projects. The County and EDA are actively recruiting a new Executive Director and administrative assistant. Jeff Browne thanked board members for stepping up to keep the EDA operation running smoothly.
Jeff Browne discussed the use of a portion the EDA administrative building through December 22nd for the Salvation Army Angel Tree holiday toy collection and distribution campaign. The EDA will also assist C-CAP in finding proper storage for needed food through the winter.
Jeff Browne and Scott Jenkins discussed the use of interns beginning in January to assist with EDA research and future projects. Scott Jenkins reviewed the “job description”. Taryn Logan stated the use of interns by the county has been a very successful venture in the past. Ed Daley, County Administrator, also supported the proposed program.
Marjorie Martin (Jorie) will assume the duties to update the website working with Queen Consulting. Meeting dates, and updated site information will posted.
The Board is working with vendors to clean the air conditioning ducts in the EDA administration building.
Next EDA Board Meeting: Combined meeting for November and December, December 3, 2021: The meeting will be held via zoom at 9:00 AM
County Supervisors change November meeting date – stay mum on Closed Session EDA litigation discussion
The only open session action taking by the Warren County Board of Supervisors at a Special Meeting of Tuesday, October 26, was authorization to change the date of a November Supervisors meeting from the 16th to the 18th. That item was a late addition to the agenda made and acted on prior to a scheduled closed session.
The bulk of the 5 p.m. meeting, about an hour-and-a-quarter, was taken up by a Closed/Executive Session to discuss Economic Development Authority litigation. As Royal Examiner readers know, that is an oft-behind closed doors topic over the last two-plus years in the wake of the $26-million to $62 million FR-WC EDA financial scandal that began unravelling in mid-2018. No announcement or action regarding that litigation was offered during the brief open session to adjournment shortly after 6:20 p.m.
As has been previously reported, the EDA financial scandal involves civil and criminal cases, the latter now handled at the federal level by the U.S. Attorney’s Office in the Western District of Virginia headquartered in Harrisonburg. Before criminal indictments were dropped by the Special Prosecutor at the state level due to speedy trial concerns surrounding the mountain of documented evidence, estimated at over a million pages, there were as many as 23 co-defendants alleged as co-conspirators of former EDA Executive Director Jennifer McDonald. The federal prosecutor launched action on August 31, filing a 34-count indictment against McDonald, including 16 counts of money laundering, 10 for bank fraud, 7 for wire fraud, and 1 count of aggravated identity theft regarding someone identified as “T.T.” (ITFederal principal Truc Tran perhaps?)
In related civil litigation, McDonald and the EDA reached an agreement in which $9-million-dollars of assets were ruled out of McDonald’s bankruptcy court filing as owed to the EDA, though without any admission of fault by McDonald. As part of that agreement the EDA recently announced assumption of ownership of McDonald Real Estate LLC MoveOn8’s undeveloped 41-acre Happy Creek parcel valued at over a million dollars.
The EDA and Town of Front Royal are also engaged in dueling civil countersuits initiated by the Town, claiming disputed lost assets related to the financial scandal. During the tenure of Interim Town Manager Matt Tederick, other than then-Mayor Eugene Tewalt, the town council chose to ignore EDA offers to sit down in a non-litigious, good faith effort to determine exactly what was owed to the Town related to the alleged misdirected EDA assets involved in Town and County capital improvement and economic development projects financed through the EDA. The Town has since initiated an effort to create its own unilateral Front Royal EDA (FREDA) operating independently of the over half-century-old Town-County EDA, which technically the Town is still a legal, if now silent, partner in.
That independent EDA effort has become a political hot potato in the coming Town Special Election to fill resigned member Jacob Meza’s seat. In recent years the County had fully funded EDA operational costs, with each municipality covering its own debt service related to EDA financing of projects. Independent conservative council candidate Bruce Rappaport has made the unilateral Front Royal EDA a major target of his campaign, citing it as a waste of town taxpayer money and destructive wrench in the cog of Town-County relations.
‘Ghosts of EDA Loans Past’ come back to haunt county supervisors
The most interesting part of Tuesday evening’s Warren County Board of Supervisors meeting was likely behind closed doors after the board adjourned to Closed/Executive Session for a legal-based answer to North River Supervisor Delores Oates question as to what benefit to the County and its taxpayers there was in approval of a Resolution admitting a “moral obligation” to continue to pay the debt service on bank loans made by the EDA during its developing financial scandal, circa 2016 or so. There was one of three loans at issue of particular interest – the $10-million-dollar loan to Truc “Curt” Tran’s ITFederal company poised to jumpstart commercial redevelopment at the 149-acre portion of the former Avtex Superfund site known as the Royal Phoenix Business Park.
Of particular interest, because the “moral obligation” for that loan was initially believed covered by the Town of Front Royal, whose elected officials agreed to provide a $10-million-dollar “bridge loan” requested by then EDA Executive Director Jennifer McDonald to indicate to First Bank and Trust that “the community” stood behind the loan and proposed project it supported. That request for and Town show of financial support for the ITFed project came despite the fact the company showed virtually no assets other than the three acres at the Royal Phoenix/Avtex site valued at slightly over $2-million-dollars that was “gifted” to the company by the EDA behind closed doors for one dollar.
A clue to what the county supervisors heard over about 15 minutes in Closed Session may have been offered by the board’s action out of it. After some hesitancy in response to the Chair’s call for a motion on the Resolution, Oates’ motion for approval of the “EDA First Bank and Trust Support Agreement”, seconded by Walt Mabe, passed by a unanimous roll call vote. The vote commits the County to continue to absorb those “moral obligation” payments through the Fiscal Year 2021-22 at an estimated cost of $214,000.
In open session, responding to questions about the Resolution in support of the “EDA First Bank and Trust Support Agreement”, County Administrator Ed Daley mentioned consolidation of three loans, including the above-mentioned ITFederal loan (at $9,551,500), as well as a First Bank and Trust Line of Credit ($8,691,600), and a First Bank of Strasburg loan ($3,450,000). Contacted later, Daley cited one condition that would bring the EDA’s payments to the bank on the ITFederal loan in line with what ITFederal pays the EDA monthly at about $42,000. Before the EDA payments fluctuated to more or less than the ITFed payments, sometimes as much as $7,000 a month more.
Despite the commitment to an estimated $214,000 in payments through this fiscal year, the board’s unanimous vote in support of its moral obligation payments likely reflects negative consequences were the County to bail on covering an EDA debt mid-fiscal year. But again, the agreement is only to the end of the current fiscal year, June 30, 2022. What might the future of “moral obligations” related to the “Ghost of EDA Loans Past” bring in FY-2022-23? – Stay tuned for another seasonal episode of “A Front Royal-Warren County EDA Carol”.
Thermal Shelter bathrooms
County Administrator Daley was also prominent in responding to another matter raised by three speakers during Public Comments about things, not on the meeting agenda. That was the elimination of two bathrooms in the Health and Human Services Complex at the old 15th Street middle school utilized by the County and involved churches and civic organizations to house the community’s homeless indoors at night during the winter. Opening that discussion was First Baptist Church Pastor Christy McMillin-Goodwin, followed by Aneita Bryant and Jim Bunce.
That trio said an alternate plan for mobile outdoor restrooms was unadvisable due to security and additional personnel to monitor out-of-building night trips, as well as potential severe weather issues. Noting a replacement plan that would not have new indoor facilities in place in time for this winter’s thermal shelter setup, these speakers wondered how the removal plan had been initiated without notice to those involved in helping the County operate the thermal shelter. Bryant suggested allowing access to the next closest indoor facilities.
In responding, Daley said he had been at point for the County in initiating the bathroom removal due to failing pipes that caused toilet backup issues. He said he had envisioned a much quicker turnaround in replacing the removed indoor facilities in that section of the building than ended up being the case. He promised to work proactively with those involved to see that an adequate alternate overnight option was available when the thermal shelter opens as winter arrives.
Also Tuesday following public hearings, the board unanimously approved three Conditional Use Permit applications, two for short-term tourist rentals and one for a private use campground. Following application summaries by Planning Department Deputy Director Matt Wendling the first two CUP applications, Charles and Lou Ann Dotson’s for the Private Use Campground on their property on Burma Road in the Man-Da-Lay Subdivision; and Jacob W. Lott Jr. and Sandra J. Kiepfer for a short-term tourist rental on their 1.6-acre lot on Little Indian Road in the Blue Mountain Subdivision in Linden went to a vote with no public hearing speakers. Wendling did note that a letter from the chairman of the Blue Mountain Property Owners Association had been received, expressing “no problem” with Lott and Kiepfer’s short-term tourist rental application.
Up last were Nicole and Sean McMinn with a short-term tourist rental permit application for their 2.42-acre property on Sagar Drive in the Highland Estates Subdivision in the Fork District. Again, there were no public speakers after the applicants responded to the board chair’s offer to summarize their request. The D.C.-based couple told the board they had run into little opposition from neighbors, and what opposition there had been from neighbors was not from those closest, but with property over a thousand feet from theirs.
And while there were no public speakers, the McMinns noted a number of letters to the board from supporters of their short-term tourist rental CUP application, which they asked to be read into the meeting record. Board Clerk Emily Ciarrocchi then read nine letters of support, including one with “25 to 30” signatures. Several of the letters, including one from the owner of the Downriver Canoe Company, noted positive impacts on tourism-related businesses from short-term renters. One letter noted, “They come; they spend; they leave”.
The board then made its final unanimous vote of approval on a motion by Archie Fox in whose district the applicant’s property lies, seconded by Walt Mabe.
Following that vote, Happy Creek Supervisor Tony Carter noted a “Bless you” included in one of the letters read by the clerk that was well-timed to a sneeze by someone present in the government center meeting room.
In fact, facing a future out of the public eye politically – Carter did not file to be on the ballot for reelection to his Happy Creek seat in November – Carter appeared at times Tuesday to be auditioning for Comedy Club spots during his member report and at various other times during the meeting. In fact, his coming local election, Halloween costume advice during his member report led three of his four colleagues to decline to try and “follow that act”.
See all the fun, business, and other public perspectives, including opening Public Comments speaker Michael Williams question as to whether a recent church-sponsored candidates forum in which the moderator was shown prior to the forum to have contributed to one church-associated candidate’s campaign could threaten that church’s tax-exempt status on U.S. Constitutional separation of church and state guidelines, in the County video: