The still legally named Front Royal-Warren County Economic Development Authority (FR-WC EDA, more commonly now referenced as the WC EDA in the wake of the Front Royal Town Council’s circa 2019/20 withdrawal from participation*) held its regular monthly meeting for September, Monday afternoon the 26th, at the Warren County Government Center. With no action items on the agenda, the focus of County EDA Director Joe Petty and the five EDA Board of Director members were committee reports concerning discussion of a cooperative path forward and procedural adjustments surrounding a reworked Strategic Plan.
Asked about the EDA’s direction in the wake of the meeting, now full-time County EDA Director Petty said, “The meeting was productive in getting the Board of Directors thinking about assigned tasks for the upcoming Strategic Planning Session. There has been a lot of positive movement in the past few months and the Board is looking forward to continuing that momentum into the session by planning for the future. This includes having a cooperative relationship with the Town, FREDA, and County for economic development initiatives.”
Board Chairman Jeff Browne launched the cooperative tone during his opening Executive Committee Report. He sought input on a preferred date for, and legal advice regarding, a largely social “get-to-know” each other meeting with the newly created Front Royal Economic Development Authority (FREDA) Board of Directors. With the meeting planned chiefly as a “getting to know each other” session with no business or action items scheduled, Browne inquired of EDA attorney Sharon Pandak, present remotely, if it would require the same legal notification as regular board meetings. Pandak said that with the intent that the two full boards be present, yes, published public notice of the date and time of the meeting would be required as usual.
Later Browne noted a recent meeting with Vice-Mayor Lori Cockrell to discuss cooperative efforts between the now divided Town and County EDAs. And with Mayor Chris Holloway’s announced retirement from politics Cockrell is also essentially the Mayor-in-Waiting as the only person on the ballot for the mayor’s seat in the coming November Election.
Cooperative movement to a mutually agreeable end was also evident in discussion of a utility easement across WC EDA property at the Avtex site to allow Town crews to perform storm-water management work on existing infrastructure as needed in the future. A consensus was reached to put approval of at least a short-term agreement outlining what work and access is anticipated to eventually be on the table, on the EDA’s next regular monthly meeting agenda in October.
Also, during his Executive Committee Report, Browne noted an upcoming meeting with a senior member of the Council for Competitiveness regarding American companies, particularly supply chain businesses, planning to relocate from overseas seeking favorable locations in the U.S. “It seems like we’d be a really great location for them,” Browne said of the county with its Interstate Highway system crossroads location, as well as the Inland Port connection to the Norfolk Port Authority system.
After a brief discussion of some EDA properties insurance coverage issues forwarded by Jorie Martin, Jim Wolfe summarized work towards establishing goals for an upcoming Strategic Planning meeting slated for 8 a.m., potentially thru lunch time, on Friday, October 14. Chairman Browne pointed to a preparatory meeting envisioned for the previous Friday, October 7, where individually assigned tasks for board members related to the Strategic Plan update, budgetary and marketing matters would be reviewed to give the following week’s meeting a stronger jumping off point. Of the two-pronged October assault on the evolving Strategic Plan, Browne described a strategical perspective: “Focusing ultimately on the big picture – how do we assess competing priorities and reconnoiter them in terms of importance and their immediacy.”
That discussion segued into the Asset Committee Report of Greg Harold, who led off with the good news that with the Baugh Drive warehouse sale being finalized, that property was no longer on the EDA’s asset list. As to its remaining land assets, Harold pointed to the EDA’s recruitment of ULI (the Urban Land Institute) for assistance, particularly as to developmental and marketing issues with the redevelop-able 150 acres of the old 467-acre Avtex “Brownfield” site looming behind the EDA office complex on Kendrick Lane.
Queried later about ULI, County EDA Director Petty explained that “ULI is the oldest and largest network of cross-disciplinary real estate and land use experts in the world.” Of ULI and its membership, Petty pointed to a goal of “delivering the mission, shaping the future of the (real estate/land use) industry, and creating thriving communities around the globe.”
During his presentation Harold noted that ULI’s team of professional land developers could help the EDA determine, not only a highest or best-use of a given property like the aforementioned “Brownfield” Avtex site, but also “the most realistic” and achievable uses.
“It’s not free – it costs money,” Harold pointed out to his colleagues. But with a worldwide track record of success for its members, it could be money well-spent in jump-starting the long floundering Avtex/Royal Phoenix site redevelopment, Harold noted. “I’ve come to the realization that for me Avtex is too big for me to try to figure out what to do with,” the Asset Committee chairman observed of the gorilla in the room of EDA property assets.
“What you’re talking about, is where needed bringing a level of additional professionalism into it, to help make us make good decisions and avoid things that we may not, just from a lack of experience, know about,” Browne observed of the benefit of ULI input.
The Future, if not NOW – flashing back to coach George Allen’s “The Future is Now” slogan for his Washington NFL team – certainly appears to be on the horizon for the WC EDA.
*FOOTNOTE – Against the advice of then-Mayor Eugene Tewalt, during the term of Interim Town Manager Matt Tederick, circa 2019/20, the Town Council elected to ignore offered “good-faith negotiations” to determine who was owed exactly what in the wake of the estimated $26-million joint-Town-County EDA financial scandal, in favor of hostile civil litigation over the Town’s unilaterally claimed losses.
Judge ponders rulings in multiple defense motions to overturn civil case jury finding of liability in EDA financial scandal cases
After over five hours of arguments surrounding five EDA civil case defendants’ motions to overturn jury liability verdicts totaling over $14-million, Judge Bruce D. Albertson took those arguments under advisement Wednesday afternoon, November 30th. Some court officials anticipate rulings at some point in the coming week in the cases of April Petty ($125,000 compensatory judgement liability); William Lambert ($296,555.34 compensatory, punitive, & interest liabilities); Donald “Donnie” Poe ($604,973.12 compensatory, punitive, interest); Truc “Curt” Tran ($1,821,192.01 compensatory, interest); and Samuel “Sammy” North (approximately $893,000 compensatory, punitive, interest, & statutory conspiracy).
In addition to the above personal liabilities, Poe’s EarthRight Energy (ERE) company ($948,646.25 in compensatory, punitive, interest) and Tran’s ITFederal ($10,419,327.38 compensatory) were also handed down by Warren County Circuit Court civil case juries in recent months.
All but North’s trial were heard in July. North’s, also originally scheduled for July, was delayed to October by a later withdrawn bankruptcy filing. This week on the final day of November, attorneys for the defendants echoed arguments sometimes heard at trial during earlier motions for dismissal of cases or claims against their clients due to what defense attorneys asserted both then and now, was a lack of substantive evidence of collusion with EDA financial scandal central figure and former Front Royal-Warren County Economic Development Director Jennifer McDonald. Rather, some defense attorneys claimed their clients were unwitting victims of McDonald’s from various business or personal connections.
Those personal connections include North’s marriage to McDonald; Lambert’s former personal relationship with McDonald’s sister; what attorney William Schmidheiser called Petty’s casual acquaintance McDonald, acting as his client’s real estate agent in the sale of her home. On the business side, Poe’s ERE company was contracted through McDonald to perform various solar energy and energy maintenance projects for the EDA under what plaintiff EDA attorneys contended were false pretenses McDonald presented to her board of directors; and Tran’s ITFederal was recruited through the joint effort of McDonald and then Virginia Sixth District U.S. House Representative Bob Goodlatte to become the first commercial redevelopment client at the former Avtex Superfund site, also with what plaintiff counsel said were false contractual and asset information concerning ITFederal alleged to have been presented to the EDA board.
Several attorneys, most prominently Tran attorney David Jones Jr., also argued that several claims categories should not have applied to their clients at trial. Prominent among those were the “ultra vires” claim of profiting off the actions of an official acting outside the range of their legal authority, and associated claims of “conversion” and “unjust enrichment” being applied to their clients for actions of then EDA Executive Director McDonald. Consequently, Jones for Tran particularly and other defense attorneys argued that some jury instructions submitted were improper, creating an incorrect evidentiary scenario for those juries to deliberate on. So, procedural errors on bench rulings on evidence admissibility or jury instructions were claimed as grounds to overturn jury verdicts.
In Poe and ERE’s case, defense counsel William Ashwell also noted that some of the contracted work had been successfully completed by Poe’s company. He told the court that when payments were made by the EDA board to his client’s company: “The EDA eventually adopts her (McDonald’s) actions by their actions” and consequently his client is not the one who should be held liable for the return of money for work accomplished. Ashwell also sought to overturn any personal liability of Poe for payments made to his company.
In opening his arguments to overturn or limit Tran and ITFederal’s liability, Jones noted that he was “in the somewhat unenviable position of not being the trial attorney – Am I in the position of fresh eyes or of where fools rush in where angels fear to tread,” Jones wondered as he launched what would be an approximate hour of argument on his client’s behalf. During that hour Jones questioned the liability finding on a number of grounds and questioned whether ITFederal was, in fact, in breach of contract as claimed by the EDA in seeking recovery of the balance of the $10-million loan the EDA gave ITFederal for development at the former Avtex site.
Plaintiff counsel Cullen Seltzer and Karissa Kaseorg countered, as they had at trial, that McDonald’s assertions to her board about the source of funding for the ERE energy and electrical work being through grants that would compensate the EDA for its payments to ERE; or alleged government contracts held by Tran’s ITFederal company that were non-existent created the path for those payments, and a $10-million loan in ITFederal’s case, substantiating the juries findings of liability on ultra vires, conversion, and unjust enrichment, among other plaintiff claims.
In response to some of Jones’ arguments for reduction or dismissal of his clients’ liability, Kaseorg told Judge Albertson that the motions to overturn hearings should not be an opportunity for defense counsel to retry the case with a “what we wish we had done” at trial. Of Jones’ argument to dismiss based on the inclusion of the plaintiff’s “conversion” jury instruction, plaintiff counsel noted that the defense had agreed to the conversion jury instruction at trial.
In conclusion plaintiff EDA counsel asserted the judicial decisions from the bench at trial had been proper as to both evidence admissibility and jury instructions, and that those jury verdicts of financial liability based on both sides cases as presented at trial should stand as handed down by those five juries. And now we are awaiting a decision on how the court will rate its own performance at those trials based on the defendants’ challenges and the plaintiff’s counter-arguments in support of the judicial rulings made at trial.
EDA welcomes C-CAP into office complex, reports on operational reviews, prospects, budget, and civil case results
The Front Royal-Warren County EDA held their monthly meeting on Friday, October 28, 2022, at 8 a.m. at the Warren County Government Center. All five Board members, legal counsel, and the County Director of Economic Development were present.
As part of the Executive Committee Report, Board Chair Jeff Browne provided an update on the recent civil court cases and actions up to the present time. He also noted the FR-WC EDA’s building at 400 Kendrick Lane has a new tenant, as C-CAP recently moved into Suite B.
Treasurer, Jim Wolfe, presented an update on monthly financial statements and the reestablishment of the small business loan committee. The Board will provide feedback on their Fiscal Year-2023/24 budget request and plans to hold a special meeting in November to prioritize the request.
The Warren County Director of Economic Development, Joe Petty, provided an update on current activities related to prospects, small business loan, annual audit, upcoming programs, and marketing. Mr. Petty also mentioned that he had recently attended the VIED (Virginia Institute of Economic Development) training and is working with the County and Town staff on various projects. Additionally, the FR-WC EDA Board and Mr. Petty will continue to explore and complete items to provide greater awareness and attraction to development sites.
The Board approved three documents related to incentive and grant opportunities for the Nature’s Touch expansion located on Toray Drive. The Board also approved the release of a property once owned by the FR-WC EDA at 280 Kelley Drive in order to be compliant with the development’s covenants and restrictions.
As part of a review of the Board’s action items from the October Strategic Plan Meeting, the Board prioritized the list and determined which items may require funding obligations. In an effort to assist small businesses, the Board is reactivating its United States Department of Agriculture (USDA) loan programs and will be seeking qualified citizens to serve on its USDA Microloan and IRP loan committee. These loans provide financial assistance to help business owners with operating capital and other expenses.
The next regular monthly Board meeting will be held on Friday, December 2, 2022, at 8 a.m. at the Warren County Government Center Caucus Room.
The Board concluded the meeting with a closed session to discuss business opportunities and legal consultation, with no new business following the closed session.
(From a release by the Front Royal-Warren County Economic Development Authority, also known as the Warren County EDA in the wake of the Town of Front Royal’s circa 2020/21 decision to withdraw from involvement in post-financial scandal reform-restructuring of the half-century old joint-municipality EDA.)
Jury takes less than hour to find ‘Sammy’ North liable in wife’s ‘scheme’ to move $110,000 from EDA to real estate transaction for personal gain
After just over five hours of testimony, evidence, and opening and closing arguments by plaintiff and defense counsel Tuesday, a seven-person Warren County Circuit Court civil case jury found former Front Royal-Warren County Economic Development Authority Executive Director Jennifer McDonald’s husband Samuel ‘Sammy’ North liable on all of its claims regarding his part in a 2015 real estate purchase on a parcel at 1309 Robinhood Lane achieved with the transfer of $110,000 in EDA funds. Those EDA claims included (i) fraud, (ii) unjust enrichment, (iii) conversion, (iv) conspiracy, (v) ultra vires (related to his wife’s exceeding her authority as an EDA official), and (vi) punitive damages.
Financially, North was found liable for the base compensatory claim of $110,000, as well as $165,000 on a finding of Statutory Conspiracy, another $350,000 in Punitive Damages on a ruling of Malicious Intent, bringing liability to $625,000. With interest, estimated at $268,000 added, North’s total liability is approximately $893,000.
Defense attorney Frank Reynolds indicated he would file a motion to overturn the verdict as unsubstantiated by civil case law just as counsel for four other EDA financial scandal civil defendants tried and found liable in July have done. Hearings on those defense motions are scheduled to be heard by Judge Bruce D. Albertson on November 30. A schedule for defense filings and plaintiff responses to facilitate the North case’s inclusion in that late November hearing was discussed prior to adjournment around 5 p.m. Tuesday afternoon, October 25. North’s civil liability trial was originally scheduled for July but was continued in the wake of a bankruptcy filing by North, which according to plaintiff counsel was later withdrawn.
Asked about the verdict, current FR-WC EDA Board of Directors Chairmen Jeff Browne, present for the trial as he was for the July cases, told Royal Examiner, “Well, it’s another win. It shows that we’ve got a good legal team and we had a good case. And it makes a real difference for the people of Warren County.”
Asked if he was concerned when alerted that the jury had reached a verdict so quickly – about 45 minutes, Browne said, “No, not really. My sense was that, that was a good sign.”
It might be noted that in closing arguments both sides’ counsel had called the evidence presented to the jury as “simple” in its nature, though disagreeing on the substance of that evidence as to the defendant’s knowledge or lack thereof on McDonald’s use of EDA assets.
“And the jury listened to that evidence and made a decision,” Browne noted of the verdict and the time taken to reach it. He noted that more civil cases will be coming to court in March to April of 2023. Of the November hearing on the recent defendant motions to overturn jury verdicts, Browne added, “I don’t think there will be any changes in November, I hope not. And we’ll have the opportunity to start gathering assets.”
With the North verdict and liability ruled by the jury added to the four made in July, pending no reversal of verdicts on November 30, the EDA is poised to recover over $15 million in assets on these five cases. Coupled with an out-of-court “no-fault” settlement with McDonald, on paper at least, involved civil case defendants have been ruled or offered liability for about $24 million of the estimated $26-million EDA “financial scandal” circa 2014-2018.
As with the July civil trials of April Petty, William Lambert, Donald Poe and Earthright Energy, and Truc “Curt” Tran and ITFederal related to the EDA financial scandal uncovered in 2018, plaintiff and defense arguments in the EDA versus North case revolved, at least in part, around what the defendant knew or didn’t know about Jennifer McDonald’s lack of unilateral authority to move EDA assets related to the defendant’s use of those assets in what plaintiff counsel referred to as “a scheme”.
Defense counsel Reynolds argued that plaintiff council had failed to present any evidence proving his client knew his wife did not have the authority to transfer $110,000 of EDA funds for his purchase of a townhouse at 1309 Robinhood Lane in September 2015. In fact, defense counsel argued that the $110,000 transfer to facilitate the $107,500 purchase, plus closing costs, by her husband could have been authorized by an EDA Asset Committee. Reynolds pointed to his client’s and Settlement Title staff’s recollection of the presence of then-EDA Board Chair Patty Wines, since diseased, at the Robinhood Lane property closing, to argue that it could have been an authorized transfer related to the EDA’s efforts to develop affordable workforce housing for young professionals.
However, EDA lead attorney Cullen Seltzer countered those arguments with one of the three witnesses he called, former Warren County and EDA attorney Dan Whitten. In fact, Tuesday’s trial was accomplished in one day with the calling of a total of only four witnesses: Closing company Service Title’s Records Custodian Kelly Shaney, Whitten, and Jennifer McDonald by the plaintiff, and defendant Samuel North by the defense.
Under direct examination Whitten pointed out that any transfer of over $50,000 of EDA funds for acquisitions would have to be approved by the full EDA Board of Directors in an open session vote. Whitten testified that McDonald’s 2015 transfer of $110,000 for her husband’s purchase of 1309 Robinhood Lane had never been discussed in open or closed session, and never approved by the EDA board. EDA counsel Seltzer also pointed to North’s invocation of his 5th Amendment right not to self-incriminate when asked at deposition why the Robinhood Lane parcel had been purchased.
On cross examination, Whitten expressed no knowledge of an EDA Asset Committee in 2015 that might have discussed or forwarded the transaction. Also on cross examination by the defense, McDonald testified that the EDA’s Asset Committee predated her 2008 to 2018 tenure as EDA executive director. During defense closing argument, Reynolds hammered at Whitten’s lack of knowledge of and absence from any EDA Asset Committee meetings to indicate a gap in the plaintiff’s case alleging the $110,000 transfer was unauthorized. But in his rebuttal closing argument, EDA attorney Seltzer countered that no EDA committee, likely comprised of two board members, could have authorized a transfer of $110,000 per the EDA policy on full-board approval of such transfers over $50,000.
Financial difficulty or not
In opening arguments and some evidentiary submissions, EDA counsel presented a scenario of financial difficulty by North and his wife in 2015 leading to the decision to move EDA assets to facilitate North’s purchase of 1309 Robinhood Lane. Seltzer presented records indicating that North’s plumbing business had lost over $71,000 between 2013 to 2016, while the couple was claiming gambling income/losses totaling $1.125-million over the same four-year period. Defense counsel countered that the “income/losses” tax claims actually indicated a break-even gambling scenario, rather than a high loss one of over $500,000 creating financial difficulty for the couple.
In closing, Reynolds told the jury that the plaintiff had failed to show “one bit of information here other than they were married to each other” to implicate his client in a conspiracy to defraud the EDA. North had testified on direct examination that his wife handled the couple’s taxes and financial affairs, and he had been unaware of the large gambling claims until shown them at deposition. In response to a question from his attorney, North estimated the most he’d ever lost gambling in a year was $2,000. Queried by EDA counsel about his signing off on tax returns he had not reviewed, North said he trusted his wife on such matters, adding that, “Finances were never my niche.”
Implication of 5th Amendment responses
One key piece of plaintiff evidence that opened their evidentiary case was a video excerpt of the above-referenced deposition given by the defendant to EDA counsel on March 30, 2021. During questioning on details of the Robinhood Lane purchase, North invoked his 5th Amendment right not to self-incriminate what Seltzer later told the jury was a total of 45 times. Called as the plaintiff’s final witness, questioned about her transfer of the $110,000 for her husband’s September 2015 purchase of the 1309 Robinhood Lane parcel, a parcel EDA counsel noted North would gift to his wife in November of that year, McDonald invoked her 5th Amendment right not to self incriminate about 11 times before Seltzer ended his direct examination.
During closing arguments plaintiff and defense counsel debated the implication of those 5th Amendment responses by both North at deposition and McDonald on the stand. Reynolds noted simple care in the face of possible criminal indictments on related matters, while Seltzer for the EDA stressed to the jury that the 5th Amendment is invoked specifically in support of one’s Constitutional right not “to self-incriminate” regarding potential criminal charges.
It would appear from its quick finding of civil liability that the latter plaintiff argument held the most weight for the seven jurors during their deliberations.
Supervisors explore budget carryover process and new software prior to light meeting agenda – THEN there was the closed session
A Tuesday evening, October 18, work session of the Warren County Board of Supervisors began with Finance Director Matt Robertson’s explanation of his recommendation for a change in how annual budget carryover funds can be handled. The recommendation comes on the heels of some confusion expressed by supervisors in how carryover funds are handled by various departments, particularly in the county public schools budget. However, it did seem that once a Supervisors-School Board Liaison Committee was established to run thru the school system’s budget proposals or requests prior to supervisor meetings, things went smoother in the last weeks of the FY-2022/23 budget process.
But from whichever angle you approach the issue, Robertson hopes the recommended adjustments will answer any questions and pin down a process this board has approved for future carryover funding transfers between fiscal year budgets for departmental and outside agency operational uses. Robertson’s October 18th work session presentation relates directly to the necessity of a public hearing and subsequent board approval of a pending transfer of $2.05 million from the County’s Fiscal Year-2021/22 budget to its current FY-2022/23 budget. Robertson explained those funds were part of a $3.3-million surplus of revenues over expenditures in the FY-2021/22 County budget year.
As Robertson told the board, state codes require that budget amendments exceeding 1% of the total projected expenditures in the currently approved budget year require a public hearing allowing citizen input prior to final board action. That public hearing is targeted for October 25.
The balance of the work session was a briefing on use of the County’s new software and the laptop computers supervisors and staff have to access that software.
Other than board and staff reports, the regular meeting convened at 7 p.m. consisted of a seven-item Consent Agenda and an Executive/Closed Session. The Consent Agenda, which included authorization to advertise the above-cited October 25th public hearing on the $2.05-million budget-year transfer, was approved as presented by a unanimous vote. That Special Meeting is slated to begin at 6 p.m. at the Warren County Government Center (WCGC) main meeting room.
“New and exciting information”
When Board Chair Cheryl Cullers asked if the scheduled Closed Session remained necessary, County Administrator Ed Daley responded, “Yes, we (staff) have new and exciting information to present to you.”
The Closed Session topics were: “… the provision of legal advice” regarding the FR-WC EDA and all its various litigations, including its civil suits “vs. Jennifer McDonald et al.” and the dueling civil litigations between “the Town of Front Royal vs. the EDA, et al.” and “the EDA vs. the Town of Front Royal, and other potential claims and litigation relating to other possible liabilities of the EDA, the recovery of EDA funds and assets, and the outstanding indebtedness of the EDA.”
As has been reported by Royal Examiner, in four civil asset-recovery cases tried in July, juries awarded the FR-WC EDA a total of about $14 million. July civil case defendants included Truc “Curt” Tran and ITFederal, Donald Poe and Earth Right Energy, William Lambert, and April Petty. Coupled with an out-of-court civil “no-fault” settlement with former FR-WC EDA Executive Director Jennifer McDonald in which the EDA was awarded an estimated $9 million in real estate assets, among other settlements, the now unilaterally County-directed FR-WC EDA has been awarded, on paper thus far, approximately $23 million of the estimated $26-million allegedly misdirected to personal gain by McDonald and co-conspirators named in the EDA civil litigations related to the 2014/15 to 2018 FR-WC EDA financial scandal. There are several more civil trials looming. Attorneys for the six above-named civil case defendants (including the companies) have all filed motions to overturn the civil case jury verdicts as unsubstantiated by technicalities within civil code law.
On the “outstanding indebtedness” side, as mentioned during the joint Front Royal Town Council/Front Royal EDA (FREDA) meeting on Monday, United Bank has a $10-million claim against the FR-WC EDA. However, questioned about that claim on Wednesday, FR-WC EDA Board of Directors Chairman Jeff Browne explained that there has been no litigation between the FR-WC EDA and any of the three banks it has dealt with in recent years. So, any bank claim has been a mutually agreed upon one involving bank financing of EDA-overseen projects undertaken on behalf of the Town and County governments in recent years.
Among those bank-financed projects was the ITFederal one in town, for which the Town Council authorized provision of a four-month, $10-million “bridge” loan at the request of then EDA Executive Director McDonald. McDonald explained to the then mayor and council, circa 2017/18, that the bank wanted such a gesture to assure that “the community was behind the project” before it agreed to the loan. From information Royal Examiner later obtained by Freedom of Information Act (FOIA) request, concerns about a lack of ITFederal assets to accomplish what it presented may have created the bank’s hesitancy to authorize a $10-million loan for the project. As this reporter recalls, Tran and ITFederal listed assets of about $2,130,000 in its loan application. However, $2.1 million of that number was the publicly estimated value of the 30-acre Royal Phoenix parcel the EDA Board had “sold” to ITFederal for one dollar, ostensibly to “jump start” development at the federally overseen “brownfield” and former Superfund environmental reclamation site.
Another EDA-bank financed project was the $7-million-plus construction loan for the new Front Royal Police Headquarters, across Kendrick Lane from the FR-WC EDA office complex and the Royal Phoenix Business Park, where a lonely, unoccupied building marks the site of the aborted ITFederal project.
But as to any “new and exciting information” regarding any of these situations, it is known only to those supervisors and staff behind the closed doors of Tuesday evening’s Executive Session. And they, not even that fly on the WCGC wall I’ve been trying to catch, are talking.
So, while we can’t offer video of that Executive/Closed Session discussion of new developments on the FR-WC EDA legal front, see the two-pronged work session and subsequent regular meeting open session discussions in the County video.
Council schedules joint meeting with its EDA as it ponders the costs of FREDA’s continued existence
“To be or not to be” – that seems to be a Shakespearean question looming regarding the continued existence of the unilateral Front Royal Economic Development Authority (FREDA). At its work session of Tuesday, October 11, under the watchful eye of FREDA Board of Directors Vice-Chairman Mark Tapsak, the Front Royal Town Council discussed implications of a yet-to-be established FREDA budget, among other procedural issues. The staff agenda summary even noted the ability of towns to control development, including economic development, through zoning parameters and central utility extension decisions, without the assistance of an EDA.
Now Interim Town Manager Kathleen Leidich summarized the staff report on issues raised by council during August and September work sessions, leading to Tuesday’s October 11th discussion. Following that presentation and discussion, a joint meeting of council and the FREDA Board of Directors was tentatively set for Monday, October 17, at 7 p.m. at Town Hall.
As noted in the staff agenda summary of October 11:
“The Town, as enabled by the Code of Virginia and governed by the Town Code, has control of its land use, water, sewer, and electric utilities. As such, it has the means to guide community development, including economic development, within its boundaries.
“The Town’s ability to guide, control or encourage development within its boundaries is not reliant on the establishment of an economic development authority. In 2021, the Town began the process of establishing an economic development authority. As a result, the Front Royal Economic Development Authority was established and began meeting in January 2022.
“Current concerns with the Town’s EDA include:
- “Setup is incomplete – No Federal Tax ID established; accounts not set up
- “Differences between EDA Bylaws and Chapter 16 of the Town Code-Role of Executive Director not established or defined; staff support for meetings; Legal review
- “Staff Support – staff is currently providing support for six boards and commissions in addition to the EDA. This includes preparing agenda packets, advertisements, minutes, and video for each meeting, in addition to related work products generated by each board or commission.
“Recent events provide Council the opportunity to review its concerns and establish consensus regarding the Town’s Economic Development Authority.”
And finally, “Staff Recommendation: – Staff requests Town Council direction regarding the set up/support of the Town’s EDA.”
It might be noted that as reported by Royal Examiner in February 2021 (After year-and-a-half gap, town council catches up on EDA activity, in and out of town), after initial joint meetings targeting corrections to processes that allowed the FR-WC EDA financial scandal to fester between 2014/15 and 2018 “… over the objection of then Mayor Gene Tewalt, who unsuccessfully recommended a policy of cooperation and rebuilding with the EDA and County, as opposed to a litigious one supported by council and pushed forward through the office of the former interim mayor and interim town manager” council began moving toward the hostile civil litigation path. That path was chosen despite offers from then FR-WC EDA Executive Director Doug Parsons for “good-faith negotiations to see exactly who is owed what” related to what is said to have been the unauthorized movement of EDA, County, and Town assets by former EDA Executive Director Jennifer McDonald.
It is a path that continues to rack up contract attorney costs to the Damiani-Damiani law firm of Alexandria recommended to council by the former Interim Town Manager/Mayor as the Town sues the Front Royal-Warren County EDA and the County over disputed losses and liabilities. And with its launch of civil litigation claims the Town withdrew from participation in the re-building of the half-century-old joint municipal EDA. It is an EDA for which by mutual agreement in recent years the Town had no operational cost responsibilities for, only payment of its debt service for EDA-overseen Town projects like construction of the new police headquarters.
Back to the Future
Which brings us back to today as the current council ponders the cost of the economic development path it and its predecessors have chosen. Following Acting Town Manager Leidich’s summary of the above-cited issues, Councilwoman Letasha Thompson questioned the FREDA board’s awareness of council’s concerns moving forward. Leidich replied that FREDA Board Chairman Rick Novak had been informed of the scheduled discussion that evening, but was unavailable, leading to Vice-Chairman Tapsak’s presence.
Mayor Holloway then suggested a joint meeting with the FREDA board, “So we can all get together and discuss our options,” adding, “It took some time to set this up. I’d hate to just sort of do away with it.”
A council consensus was quickly reached and with turnaround time on advertising a Special Joint Meeting and scheduling availability “as soon as possible” as Councilman Gary Gillispie suggested, as noted above a tentative joint meeting date of Monday evening, October 17, at 7 p.m. at the Town Hall main meeting room was set.
Councilwoman Amber Morris cited past closed session council discussion of FREDA’s future, noting that the discussion was now a matter of open session, public record – “It’s out there,” she observed, adding, “The set-up of FREDA is incomplete, or wasn’t completed, and we began operating. FREDA pre-dates my time on council. I’m excited for them, I was excited for them and I think they’ll bring forward great opportunities to the community for economic development within the town – it’s been not developed for over a decade. All the development goes into the county,” Morris asserted of a perhaps perceived past economic development imbalance. However, whether such larger scale commercial or industrial development flowing outside established town limits reflects a developmental imbalance or a natural outcome of the relative availability of undeveloped stretches of somewhat isolated land, is certainly debatable. And one might note that the one 147-acre space earmarked for commercial economic redevelopment inside the town limits, the former Avtex, federal Superfund, Royal Phoenix Business Park, “Brownfield” site, is owned for that redevelopment by the FR-WC EDA, more commonly referenced as the WC EDA since the Town’s withdrawal from participation circa 2020/21.
Morris continued, reviewing above-cited staff concerns in the agenda summary including the lack of a federal tax ID and a lack of accounts being set up: “And the huge concern that applies to that is that we voted to allocate money to FREDA and a budget. We had discussions … We literally cannot fund them to let them run,” Morris said. She compared the situation to the initial experience with the joint Town-County Tourism Committee’s work to create a 501-C6 organization to run that promotional operation, of which she pointed out, “We hired them, then held them hostage” for some time as parameters and details were ironed out.
Morris also noted the Chapter 16 Town Code/FREDA Bylaw conflict with an Executive Director’s position not being established or defined. That despite recently terminated Town Manager Steven Hicks having been appointed by council to fill that EDA staff role prior to his August 8 departure.
It seems council and its new FREDA Board of Directors will have a lot to talk about on Monday in the hope of establishing a workable path forward with all necessary legal parameters and financing in place. Or upon further exploration of the numbers, might council choose as Mayor Holloway said, “to just sort of do away with it” and rely on “control of its land use, water, sewer, and electric utilities … as the means to guide community development, including economic development, within its boundaries.”
It might be noted that one of two topics on the agenda of a Closed Meeting at the work session’s conclusion was discussion with legal counsel regarding “the establishment, powers, duties and limitations of the Front Royal EDA, pursuant to §2.2-3711(A)(8) of the Code of Virginia” with the additional notation that “Council may take further action in open session.” No action was taken following the closed session. But that might not be the case this coming Monday. Stay tuned as this process moves forward. The other closed meeting topic was the status of the Town Manager, Town Attorney, and Council Clerk’s positions.
The FREDA discussion begins at the 42:00-minute mark of the Town video, concluding at the 52:24 mark. See that, and other topics including staff updates on other key projects, including the Town Comprehensive Plan review; pending ordinance amendments including residential snow and ice removal on Town right of ways in front of those properties; Special Use Permitting requests; and Redundant North Corridor Water Line financing variables. As noted at the end of our related story on the vacant(?) council seat appointment of Skip Rogers, financial variables on that latter topic among others, has reduced the Town reserve funds to six budgetary months, just three months above the code-mandated three-month minimum. Also, at the outset of the Special Meeting preceding the work session, see council approve a Resolution committing to fund-sharing projects with VDOT, and granting signature authority on VDOT projects in town to Interim Town Manager Leidich.
Poe joins EDA civil defendants in motions to nullify civil liability verdicts; Tran counsel granted additional time to file their motion to overturn jury verdict
After expressing some initial reluctance to invest more in legal fees attempting to overturn a Warren County Civil Court jury’s ruling of approximately $1.3 million in base ($945,000) and punitive ($409,800) damages against him and his Earth Right Energy (ERE) company, Donald Poe joined the line of EDA civil case defendants seeking to have Judge Bruce D. Albertson overturn jury liability verdicts rendered in July. The Poe/ERE “Motion To Set Aside Jury Verdict Or In The Alternative To Award A New Trial” was received and filed in Warren County Circuit Court Clerk’s Office on Tuesday, September 6.
The rationale for that motion was along the lines of previous filings by counsel for April Petty, William Lambert, and a still pending one for Truc “Curt” Tran. The defendants’ contention is that the jury verdicts were based on evidence that did not meet a civil code standard to justify the finding of liability in each defendants’ case. Similar motions to strike plaintiff EDA evidence and their cases against the defendants were made by defense counsel and denied at the outset of several of those July trials. To those arguments forwarded by defense counsel on several occasions, Judge Albertson responded that it was “for the jury to decide” the relative weight of evidence to be presented.
In a related development, on August 25 over the objection of plaintiff EDA counsel, Judge Albertson granted Tran/ITFederal counsel’s request for additional time to complete its filing for overturning of the jury’s finding of compensatory liability of about $12 million-plus some interest against Tran and ITFederal. The judge set a new filing schedule of September 15 for defense filings, plaintiff responses by October 17, and defendant replies to plaintiff’s response by October 27. An initial defense motion to overturn filing date was set for 31 days from the July 28 jury verdict in that case. Running towards an August 28 deadline on that schedule, Tran counsel sought the additional time, as noted above, granted over the plaintiff’s objection.
As part of his order granting the filing extension for Tran/ITFederal, Judge Albertson ordered the defendants not to move substantial company or personal assets during the moves toward a final court ruling on the verdict: “Tran and IT Federal (on behalf of itself and on behalf of its wholly-owned subsidiary Lewisburg Way, LLC) shall not sell 943 Happy Creek Road before the court enters its final order, consistent with Code 55.1-400, which precludes fraudulent conveyances,” the judge began, adding, “Mr. Tran and IT Federal shall not dispose of, encumber, or waste any assets of IT Federal. In the same vein, IT Federal and Tran shall not gift, convey, assign, transfer or otherwise dispose of, encumber, or waste any personal assets to delay, hinder, or defraud the Warren EDA as a creditor.”
Motions to set aside the jury verdict of $125,000 of compensatory liability in April Petty’s case was filed with the court on July 28; and in William Lambert’s jury finding of $350,000 of compensatory liability, the motion to overturn was filed on August 18.
And the jury trial of Samuel North, cancelled in July following North’s filing of bankruptcy, has been rescheduled for October 25, beginning at 8:30 a.m. North is former EDA Executive Director Jennifer McDonald’s husband. The central figure in the EDA “financial scandal”, McDonald reached a no-fault settlement agreement in her civil liability case with the FR-WC EDA. She agreed to turn over $9 million in assets, largely real estate, to the EDA to settle their claims against her; while admitting no fault in her acquisition of those assets.
She still is facing criminal trial in federal court in the Western District of Virginia on multiple charges related to the investigation into EDA finances during her executive director’s tenure. Due to its complexity and the amount of involved evidence – cited at over a million pages of documentation – that trial originally scheduled for as many as five weeks this fall, has been pushed into May 2023.
See trial and verdict stories on the Royal Examiner website front page under the NEWS banner at sub-section “EDA IN FOCUS“.