County continues cloak of secrecy on EDA, citing “attorney-client privilege”

County (and EDA) Attorney Dan Whitten, conferring with board members at a late 2018 BOS meeting. / File photo

Citing “attorney-client privilege” Warren County Attorney Dan Whitten has denied in full a Freedom of Information Act (FOIA) request filed by Royal Examiner on Jan. 2, 2019 seeking the identity, resume and CV (curriculum vitae) of the consultant hired by the Warren County Supervisors on behalf of the Front Royal-Warren County Economic Development Authority to examine debt service issues in which the town and county were overcharged related to debt service.

“The identity of the consultant is exempt from disclosure under the Virginia Freedom of Information Act. The applicable exemption sections are Virginia Code Ann. § 2.2-3705.1(2) which includes “[w]ritten advice of legal counsel to state, regional or local public bodies or the officers or employees of such public bodies, and any other information protected by the attorney-client privilege” and Virginia Code Ann. § 2.2-3705.1(3) which includes “[l]egal memoranda and other work product compiled specifically for use in litigation or for use in an active administrative investigation concerning a matter that is properly the subject of a closed meeting under § 2.2-3711.” The consultant is an expert engaged to aid legal counsel, and the identity of the consultant is exempt from disclosure. Accordingly, the resume and CV of the consultant are also exempt under the same code sections of the Virginia Freedom of Information Act,“ Whitten wrote, in denying Royal Examiner’s request.

When asked if Virginia State Police investigators were involved in the EDA audit, Whitten replied, “Any possible involvement of State Police would fall under the exemptions in Virginia Code § 2.2-3705.1(2) and Virginia Code § 2.2-3705.1(3).”

The response to the FOIA request was emailed at 3:56 p.m. on Wednesday, Jan. 9, just hours after the Warren County Board of Supervisors unanimously agreed to hire the Sands Anderson law firm on behalf of the EDA to represent the EDA in “unspecified legal matters.”

Whitten said the contract has a $50,000 legal fees cap, and no money has yet been spent. The motion at Tuesday’s regular board meeting to approve the contract states that the law firm will “provide legal counsel on a specific matter.”

That decision came after the Board of Supervisors held a closed session for consultation with legal counsel regarding accounting and debt service.

Whitten, who represents both the County and the EDA, said the firm would represent the EDA on a “specific legal matter.” He said the firm already represents the county and EDA on bond counsel issues, but the matter for which the firm was hired was a different matter.

When asked if there was a conflict of interest, with Whitten representing both the County and the EDA, Whitten stated, “It is not a conflict if the County and EDA are not adverse parties to each other, and both political subdivisions agree to my representation of both bodies. If the County wanted to take action against the EDA for any reason, there would be a conflict, and I would recuse myself.”

Warren County, on Dec. 21 approved an expense of $90,000 payment to an unidentified financial consultant who has been looking into overpayments the town and county made to the EDA relating to debt service.

On Dec. 20, Jennifer McDonald, former EDA executive director, resigned from that position after the EDA board held a number of closed sessions regarding debt and accounting services. See related story: EDA Director McDonald submits a resignation by email prior to Thursday meeting

On Oct. 31 Royal Examiner broke the story that the EDA had overcharged the Town of Front Royal over $291,278.264. See related story: EDA may owe Town of Front Royal nearly $300K