On Friday, October 18, the attorney for the organizers of a citizens group seeking removal of all five Warren County Supervisors filed the Petition for that removal with a total of 941 signatures attached, broken down by County Voting Districts.
The filing required a minimum of 10% of the number of registered county voters who voted in the last election. That number is cited as 6,958, requiring a total of 696 countywide. However self-identified “primary organizer” of the petition drive, Bonnie Gabbert, noted in an affidavit filed with the petition that she had rounded each voting district’s total up, raising that minimum required signature total to 699.
So while the petition total of about one-seventh of the county’s most recent voting population does not indicate majority support for the recall, it does meet the State requirement for such a matter to be brought before a Circuit Court judge. And it appears on information from petition attorney Timothy Johnson that for the same reasons of personal or professional familiarity with defendants leading to recusals in EDA cases, that Warren Circuit Court Judge William Sharp will recuse himself from the recall hearing as well.
Johnson told Royal Examiner he believes Chief 26th Judicial District Judge Bruce D. Albertson, who has been presiding at EDA civil and criminal case hearings will preside at the scheduled October 28 Show Cause removal petition hearing. Albertson was already scheduled to be here that day to hear a number of defense motions to quash the very charges the main thrust of the removal is based on.
The removal petition cites the board members’ September 20th misdemeanor criminal indictments related to an absence of due diligent oversight of the actions of former Warren County Economic Development Executive Director Jennifer McDonald in the final four months of 2018 as a primary legal basis of the removal.
“Pursuant to Va. Code § 24.2-233(1), a Circuit Court may remove from office any elected officer residing within the jurisdiction of the Court for neglect of duty, misuse of office, or incompetence in the performance of duties when that neglect of duty, misuse of office, or incompetence in the performance of duties has a material adverse effect upon the conduct of the office.
“On September 20, 2019, Supervisors Daniel J. Murray of the North River District, Thomas H. Sayre of the Shenandoah District, Tony F. Carter of the Happy Creek District, Archie A. Fox of the Fork District, and Linda Glavis of the South River District were indicted for violating the English Common Law, and specifically, each were charged on three misdemeanor counts …” of misfeasance and nonfeasance in the conduct of their office as previously reported (see below linked story).
The petition acknowledges the coming November 5 election in which two supervisors, Chairman and North River Supervisor Dan Murray and South River Supervisor Linda Glavis are not seeking reelection; and Shenandoah District Supervisor Tom Sayre is in a race with Walter Mabe. It also notes that Fork District Supervisor Archie Fox and Happy Creek Supervisor Tony Carter are not up for reelection until November 2021.
Regardless of those electoral variables, the petition asks the court “to suspend the Respondent-Supervisors from performing their duties in office until the Show Cause hearing is held”. There are no Board of Supervisors meetings scheduled prior to that October 28 Show Cause hearing that will revolve around the defendants’ arguments as to why they should not be removed.
And one might make an educated legal guess that at least part of those defense arguments will revolve around the same Sovereign Immunity issue the EDA has raised in the Town of Front Royal’s civil action against it.
“Sovereign Immunity is ‘a rule of social policy, which protects the state from burdensome interference with the performance of its governmental functions … Most importantly, the doctrine of Sovereign Immunity provides for ‘smooth operations of government’ and prevents ‘citizens from improperly influencing the conduct of governmental affairs through the threat or use of vexatious litigation,’ ” a motions filing in the Front Royal vs. EDA civil suit reads.
In addition to its primary Show Cause allegations regarding the misdemeanor indictments cited lack of due diligent oversight of the former EDA executive director late in 2018 the recall petition also alleges a number of other board failings since that time.
Those include failing to take corrective action to prevent a recurrence of the past absence of economic development oversight and use of public money; failing to “review critical financial information” related to a recent bond consultant initiative to refinance some existing capital improvement bonds that could save the County several million dollars; and allowing the EDA purchase of what is described as the “Westrock LLC warehouse purchase” (aka 426 Baugh Drive warehouse) at a price of $5.3 million.
While the removal petition allegations surrounding the misdemeanor indictments and other past absences of EDA oversight appear to have a solid footing for legal arguments, some of the peripheral allegations may have a less substantial foundation.
Unlike some other EDA owned properties, the Braugh Drive warehouse has been cited by current EDA officials as “just the type of property” an EDA should purchase for marketing/sale to a job creating company.
The alleged failure to launch corrective measures and lack of bond refinancing scrutiny seem to ignore several board initiatives and consultant processes. Those include the supervisors’ participation in an EDA Reform Committee and joint County-Town-EDA meetings held to discuss just such corrective measures, many already in the process of being implemented by the EDA and County, including the County’s assumption of the role of the EDA’s financial agent with check-writing authority.
The alleged lapse of due diligence regarding bond refinancing seems to ignore the County’s long-time use of bond consultant Davenport & Associates to perform that very bond reissue due diligence in recommending actions to the supervisors.
And the allegation of wrong doing in the tabling a decision on whether the County will fund the legal defense of the supervisors on their misdemeanor charges to December ignores the explanation that a decision be deferred until the motions to quash the indictments have been heard. That could be a factor in a decision as a compromise solution of the County using taxpayer money for the supervisors defense counsel only if the charges are dropped or the supervisors are acquitted at trial was broached during October 1 meeting discussion.
Those defense motions to quash the misdemeanor misfeasance and nonfeasance indictments against County and EDA officials, as well as Discovery motions if necessary, are slated for hearing on October 28, the same day as the Show Cause hearing on the recall is on the court docket.
Among other EDA McDonald-related oversight lapses cited in the recall petition are the “red flag” of McDonald’s public story of “substantial gambling winnings” to account for her use of cash in her real estate businesses; as well as the sale of the 30-acre ITFederal parcel at the Royal Phoenix/Avtex site “for substantially below fair market value”.
One might say “substantially below” in that the publicly discussed $2 million 30-acre parcel was gifted to ITFederal LLC for one dollar in an effort to “jump start” further development at the 147-acre planned Royal Phoenix Business Park site. Four years later that plan is floundering and ITFederal and its CEO Truc “Curt” Tran are defendants in the EDA’s $21.3 million civil suit. In its first month of existence Royal Examiner broke the story of that one dollar sale being the reason for a one-year delay in U.S. Justice Department approval of the sale (see below linked story).
The EDA is seeking recovery of the balance of its $10 million First Bank & Trust loan to ITFederal on the grounds it was obtained “under false pretenses”. Despite that EDA civil suit contention, Tran and his Congressional sponsor Robert Goodlatte, who helped and/or stood silently by as McDonald pushed those alleged “false pretenses” into the municipal and public consciousness, have thus far remained off the EDA Special Grand Jury criminal indictment radar.
Indicted in addition to the five supervisors on September 20 by the EDA Special Grand Jury were County Administrator Doug Stanley, former EDA/County Attorney Dan Whitten, former EDA Board members Ron Llewellyn, Bruce Drummond, Greg Drescher, William “Billy” Biggs and current EDA Board members Mark Baker, Tom Patteson, Gray Blanton. Each faced three identical charges, two counts of Misfeasance and one count of Nonfeasance in the conduct of their public offices.
October 28 should be a long and interesting day in Warren County Circuit Court.
Interested in reading the petition? See below.
CIRCUIT COURT OF THE COMMONWEALTH OF VIRGINIA,
COUNTY OF WARREN
|In re Joint Petition for Removal of Daniel J. Murray, Thomas H. Sayre, Tony F. Carter, Archie A. Fox, and Linda Glavis
BONNIE GABBERT, as representative petitioner for North River District, KRISTINA C. NELSON, as representative Petitioner for Shenandoah District, MAUREEN SCHOFIELD, as representative petitioner for Happy Creek District, MARK HAJDUK, as representative petitioner for Fork District, JEAN M. STANLEY as representative petitioner for South River District, and all other signatories to this Joint Petition from their respective magisterial districts, Petitioners,
DANIEL J. MURRAY, THOMAS H. SAYRE, TONY F. CARTER, ARCHIE A. FOX, and LINDA GLAVIS,
PETITION FOR REMOVAL OF ELECTED OFFICIALS
Named Petitioners as representatives for Warren County’s magisterial districts, and the attached signatories to this Petition for Removal of Elected Officials who are registered voters who reside within the jurisdiction of the respective officer being petitioned for removal and who have signed this petition under penalty of perjury seek the removal from elected office of Respondent-Supervisors DANIEL J. MURRAY, THOMAS H. SAYRE, TONY F. CARTER, ARCHIE A. FOX, and LINDA GLAVIS, state as follows:
- Pursuant to Va. Code § 24.2-233(1), a Circuit Court may remove from office any elected officer residing within the jurisdiction of the Court for neglect of duty, misuse of office, or incompetence in the performance of duties when that neglect of duty, misuse of office, or incompetence in the performance of duties has a material adverse effect upon the conduct of the office.
- On September 20, 2019, Supervisors Daniel J. Murray of the North River District, Thomas H. Sayre of the Shenandoah District, Tony F. Carter of the Happy Creek District, Archie A. Fox of the Fork District, and Linda Glavis of the South River District were indicted for violating the English Common Law, and specifically, each were charged on three misdemeanor counts as stated as follows:
(a) On or about September 1, 2018 through December 31, 2018, in the County of Warren, [respective supervisor’s name], did unlawfully commit nonfeasance by failing to act to limit or restrict the powers, responsibility, and access to the public financial resources of Jennifer Rae McDonald in her position as Executive Director of Front Royal Warren County Virginia Economic Development Authority resulting in financial loss to Warren County, in violation of Section 1-200 and 19.2-8 of the Code of Virginia, 1950, as amended.
(b) On or about September 1, 2018 through September 25, 2018, in the County of Warren, [respective supervisor’s name], did unlawfully and negligently commit misfeasance by not properly exercising his/her powers of appointment, oversight, and removal, of Jennifer Rae McDonald in her position as Executive Director of Front Royal Warren County Virginia Economic Development Authority resulting in the unlawful diversion of more than $300,000 in public funds, in violation of Section 1-200 and 19.2-8 of the Code of Virginia, 1950, as amended.
(c) On or about October 20, 2018 through November 30, 2018, in the County of Warren, [respective supervisor’s name], did unlawfully and negligently commit misfeasance by not properly exercising his/her powers of appointment, oversight, and removal, of Jennifer Rae McDonald in her position as Executive Director of Front Royal Warren County Virginia Economic Development Authority resulting in the unlawful diversion of more than $9,000 in public funds, in violation of Section 1-200 and 19.2-8 of the Code of Virginia, 1950, as amended.
- These criminal charges stem from the Respondents’ failures to perform their duly elected duties, and ensure proper use of and safekeeping of Warren County’s taxpayers’ monies. Aside from the criminal charges as stated, the Petitioners further allege that the Respondent-Supervisors neglected their duties or otherwise were incompetent to perform their duties by:
(a) Failing to establish policies and procedures that would have ensured a proper accounting oversight of the Warren County Economic Development Authority, including its Executive Director, in contravention of its duty to establish appropriate oversight policies pursuant to Va. Code § 15.2-403(A);
(b) Failing to require and actually review regular, sufficiently descriptive financial and other activity reporting from the Warren County Economic Development Authority, including its Executive Director, and any other financial monitoring department such as the from the Commissioner of Revenues, and/or the Warren County Treasurer, and/or the Finance & Purchasing Department pursuant to Va. Code § 15.2-403(B);
(c) Failing to inquire into official conduct of the Warren County Economic Development Authority’s Executive Director when ‘red flags’ were presented such as her alleged substantial “gambling winnings,” the ‘data center project’ land being sold for substantially below fair market value, and when the Executive Director acknowledged falsifying invoices pursuant to Va. Code § 15.2-403(C);
(d) Failing to account for the “Westrock LLC” warehouse purchase for more than $5.3 million, which served no apparent benefit to the citizens of Warren County and no apparent plan for said warehouse;
(e) Failing to take appropriate corrective actions to ensure that such gross errors in accountability cannot happen again as no proposed solutions have been presented to the public or to the Board of Supervisors to establish proper policies and procedures, or otherwise improve financial oversight; and
(f) As recently as October 1, 2019 at the most recent Board of Supervisors meeting, admittedly failing to review critical financial information concerning revenues and County bond information that would be used to fund Warren County services, and for refusing to decide an agenda item concerning whether the taxpayers of Warren County were to pay for the criminal defense costs associated with the Supervisors’ criminal indictments stemming from the charges related to their misfeasance and nonfeasance in office and postponed such a decision until December 2019.
- The above-stated actions have caused irreparable injury to the interests of the Warren County Government and the citizens whom it is supposed to serve. Millions of dollars of taxpayer monies have been embezzled or otherwise misplaced; trust in local government officials and the departments they work for has been broken; and the reputation of Warren County is forever tarnished. The Respondent-Supervisors have allowed these injuries to occur, and have taken inadequate actions to remedy the errors.
- Two Supervisors (Mr. Murray and Ms. Glavis) are not seeking re-election, and one Supervisor (Mr. Sayre) is running for re-election next month. The other two Supervisors (Mr. Carter and Mr. Fox) are not subject to an election until November 2021.
- As the criminal charges are pending, the citizens of Warren County believe that the Respondent-Supervisors are not in a position where they can capably perform their duties while also addressing such criminal allegations. Aside from the criminal charges, the Respondent-Supervisors have failed to present any cognizable plan of addressing the lack of accountability and oversight, and have demonstrated that they cannot perform their duties competently.
- The Petitioners request that the Court suspend the Respondent-Supervisors from performing their duties in office until the Rule to Show Cause hearing is held pursuant to Va. Code § 24.2-236.
- This Petition has been signed by the requisite number of registered voters who seek to remove their respective Supervisor from office. From the last election for that respective Supervisor’s election, the following number of registered voters voted in the respectively stated districts were as follows:
|Magisterial District||Number of Voters in Last Election Cycle|
|North River District||1,084|
|Happy Creek District||1,811|
|South River District||1,107|
Pursuant to Va. Code § 24.2-233, this Petition is accompanied by signatures of registered voters who reside within the jurisdiction of the respective Supervisor totaling at least ten percent (10%) of total number of votes cast at the last election for the office that the officer holds.
WHEREFORE, Petitioners respectfully request that this honorable Court award the following relief:
- Issue a Rule to Show Cause to the Respondent-Supervisors requiring that the Respondents appear before this Court and show cause why they should not be removed from office, and that such hearing be held no less than five but not more than ten days from the filing of this Petition;
- As part of issuing the Rule to Show Cause, issue an Order suspending the Respondents from their elected official positions on the Warren County Board of Supervisors until such Rule to Show Cause Hearing is heard;
- Upon hearing sufficient evidence proven by a preponderance of the evidence, remove the Respondents from their positions in office; and
- Grant other and further relief as the Court deems just, proper, and equitable.
Dated: October 3, 2019 Respectfully submitted,
Timothy R. Johnson (VSB No. 87673)
The Law Offices of Timothy R. Johnson, PLC
20-B East Main Street
Berryville, Virginia 22611
P: (540) 352-4672
F: (540) 595-3500
Counsel for Petitioners
VERIFICATION BY REPRESENTATIVE PETITIONERS
- I, Bonnie Gabbert, a resident of the North River District within Warren County, have reviewed the allegations in the Petition for Removal of Elected Officials, and affirm under penalty of perjury that such allegations are true and accurate to the best of my knowledge.
- I, Kristina C. Nelson, a resident of the Shenandoah District within Warren County, have reviewed the allegations in the Petition for Removal of Elected Officials, and affirm under penalty of perjury that such allegations are true and accurate to the best of my knowledge.
- I, Mark Hajduk, a resident of the Fork District within Warren County, have reviewed the allegations in the Petition for Removal of Elected Officials, and affirm under penalty of perjury that such allegations are true and accurate to the best of my knowledge.
- I, Maureen Schofield, a resident of the Happy Creek District within Warren County, have reviewed the allegations in the Petition for Removal of Elected Officials, and affirm under penalty of perjury that such allegations are true and accurate to the best of my knowledge.
- I, Jean M. Stanley, a resident of the South River District within Warren County, have reviewed the allegations in the Petition for Removal of Elected Officials, and affirm under penalty of perjury that such allegations are true and accurate to the best of my knowledge.
EDA civil case judge considers more defense motions to remove defendants
Several more Economic Development Authority civil defendants were in court Thursday morning, July 30, to hear their attorneys echo past EDA defendant counsel arguments on dismissal of their clients from one or the other of the EDA’s two civil litigations now totaling at least $26 million.
Present from the nine-defendant list of people and companies named in the April 14, 2020, filing of a civil action seeking “not less than $4.45-million” in actual damages and $350,000 in punitive damages were William T. Vaught Jr. and Rappawan Inc. principal Stuart R. Vaught and Walter and Jeannette Campbell of Century 21 Realty. Dismissal motions were also argued for Tracy L. Bowers of TLC Settlements LLC, though she did not appear to be present for those arguments. Not having motions before the court were Service Title of Front Royal LLC and agent Victoria L. Williams.
Chief 26th Judicial Circuit Court Judge Bruce D. Albertson of Harrisonburg presided over the 8:30 a.m. hearing that ended a 11 a.m. with the judge taking the various defense motions under consideration.
Those motions began with Robert Light and Joseph Silek Jr. representing William T. Vaught Jr. and Rappawan Inc. Other than Silek and Light, the latter who presented the Vaught-Rappawan motions case, and EDA attorneys Vivian Giles and Sean Hutson of Sands Anderson who countered the defense motions, all other attorneys were present by remote telephone connections to the courtroom. Those remotely connected attorneys generally cited agreement with Light’s initial presentation for Vaught/Rappawan, adding specifics of the allegations against their clients, to call for their removal from the civil suit list of defendants.
At issue for all defense attorneys was an alleged lack of specific actions in the EDA complaints against their clients that proved they were aware of being part of an alleged conspiracy to defraud and misdirect EDA assets in conjunction with central civil suit defendant, former EDA Executive Director Jennifer McDonald. Also contended for all defendants were arguments that the nature of those allegations indicated that Statute of Limitations timelines on bringing charges had expired by the time the EDA civil litigation against their clients was filed.
Plaintiff attorneys Giles and Hutson countered that there was, indeed, detail of the participation of the defendants in alleged schemes utilizing real estate transactions to move EDA funds through McDonald companies in order to “launder” stolen EDA money and give it the appearance of legitimacy through those real estate transactions from which all involved parties allegedly saw profit from.
According to the EDA Complaint, the Vaught-Rappawan case utilized TLC Settlements to move $2-million of EDA money into McDonald’s DaBoyz real estate company to purchase several parcels from Rappawan with that money, which was then sold back from DaBoyz to Rappawan at a $600,000 loss a month later.
“Through these transactions over just a month’s time, Defendant Rappawan and Jennifer McDonald effectively laundered stolen money from the EDA. McDonald put $650,000 of the EDA’s cash in her pocket; Rappawan got back all the land originally sold and put $250,000 in stolen EDA cash in its pocket. The EDA, of course, got neither land nor its money back,” paragraph 75 on page 15 of the 30-page complaint states.
Of moving money through a bank into a real estate deal for someone other than the source of the money (in this case the EDA), Giles told the court, “Transactions like this just don’t happen when you pocket $600,000 in one month. Money in the bank makes it clean? – It’s a drug dealer’s dream – but it doesn’t work like that. Were they unjustly enriched? – Absolutely. If we’re wrong let a jury decide,” Giles told the court.
She told Judge Albertson that the defendants were essentially trying to make evidentiary arguments best suited for trial, during pre-trial motions. – “This is Discovery,” she said of defense arguments seeking additional clarity on the plaintiff’s case against their clients.
The statute of limitations arguments largely revolved around a debate on the nature of the charges and when the EDA actually became award of the alleged theft, embezzlement, and misdirection of their assets.
Of the defendant counsel assertion then EDA Board of Directors Chairman Greg Drescher had signed off on one of the enabling transactions, legitimizing it as EDA business, Giles told the court, “Mr. Drescher was duped, like the EDA was. What was happening was not discovered till much, much later.” – Which is essentially what defense attorneys are arguing for their clients.
How much later we will find out the result of Thursday morning’s legal arguments is unknown. Judge Albertson did not give a hint as to a timeframe for his ruling. To this reporter’s knowledge, thus far no EDA civil case defendant removal motion has been successful.
EDA monthly meeting report; solar panels gone; Afton Inn sale moving forward
The Board of Directors held their regular monthly board meeting today. Two motions were passed:
-Finance Committee Chair Jorie Martin made a motion, seconded by Tom Patteson, to award a $2,500 bonus to Administrative Assistant Gretchen Henderson for exemplary performance. The Board also will also pursue a reclassification of her job position based on new duties and responsibilities. The board voted unanimously in favor.
-Ms. Martin also made a motion, seconded again by Dr. Patteson, to approve United Sprinkler to provide the annual inspection for 426 Baugh Dr. for a fee not to exceed $600. This inspection is required for the insurance policy. The board voted unanimously in favor.
Finance Chair Jorie Martin reported that the EDA will be modifying its budget. The EDA had issued bonds for Christendom College and Royal Arms housing complex renovations. Once per year, they owe the EDA administrative fees. Those fees were not previously invoiced. Current EDA staff has resumed that task so the budget will be updated to reflect these two new sources of revenue.
Sunlight Properties, LLC has paid in full and removed the solar panels from the roof of the EDA office building at 400 Kendrick Lane. Executive Director Doug Parsons proposed that the Board of Directors work on a plan for repairing the roof. He noted that he’s been in contact with individuals looking to lease commercial office space and that the revenue it would generate would support making the commitment to the repair project.
Finally, Doug Parsons reported that the FY 2018 and 2019 audits by Brown Edwards continues to move forward. Auditors completed their preliminary fieldwork in early July. He projects completion by August/September.
Asset Management Committee
Royal Lane “Workforce Housing” property-Committee Chair Harold and EDA Chair Ed Daley met with Front Royal Mayor Tewalt and Vice-Mayor Sealock on the EDA’s plans for the property. He reported a positive and constructive meeting and appreciated their input. Multi-family housing will be a welcomed addition to the Front Royal area.
Afton Inn-Mr. Harold was pleased to report that the sale of Afton Inn continues to move forward and projects closing this Fall. The EDA will be glad to see this property in the hands of private developers. The goal of the buyers/developers, 2 East Main, LLC will be to bring this downtown Front Royal landmark back to life. The EDA is looking forward to finalizing this sale.
Finally, the EDA will undertake signage projects for the Kelly Drive Industrial Park and the LFCC Tractor Trailer Training facility in the Avtex parking lot.
EDA staff and the Board of Directors welcomed Doug Stanley as he gave his final report as County Administrator. He has been an invaluable asset to the EDA and the Front Royal Warren County community. He will surely be missed. The Board recognized that EDA Chair Ed Daley will be stepping down to become Interim County Administrator. Vice-Chair Jeff Browne will assume the duties of Chair.
Two supervisors questioned about ‘back channel’ dealings with Town on EDA issues
On Tuesday, July 21, Happy Creek Supervisor Tony Carter’s call to add board discussion and a vote of “formal approval” of an informally negotiated “Reservation of Rights Agreement” with the Front Royal Town Council led to the evening’s most surprising and most contentious discussion.
During that discussion, Carter asked if informal County “Reservation of Rights” negotiators Delores Oates and Cheryl Cullers should be made an official board committee. When County Administrator Doug Stanley noted that once formed as a formal municipal committee, further meetings would require public notice of, and minutes to be taken at future meetings.
“I know, that was my intent,” Carter replied, indicating he thought a formal committee a better path than the undocumented, unsupervised way those unofficial meetings between Cullers and Oates and Lori Cockrell and Chis Holloway on the Town side were being conducted. Carter called the meetings similar to the Town-County Liaison Committee meetings, which are formal and documented. Perhaps oddly or not, the Reservation of Rights Agreement discussion was NOT part of last week’s Liaison Committee meeting agenda.
“I think everybody wants to be transparent. And it seems like that would be the best way to be transparent – notify the media, notify the public about having these discussions,” Carter said of formalizing such an important matter involving the County, Town, and EDA.
However, Cullers and Oates countered that their un-monitored meetings with the Town representatives were being made in good faith to move a stagnated process forward.
“I would like to disagree with that,” Culler said of Carter’s formalized committee idea, adding, “simply because I feel like we’re making some headway – not that I’m trying not to be transparent. But at some point, you have to sit down with people in a room, shut the door and get down to business without too many people in the room. I think the Reservation of Rights that we came to here is a step in that direction. I don’t know if we would have got there if we had more people in the room.”
“I understand what you’re saying, that you prefer to conduct public business without the public,” Carter retorted of Cullers’ rationale for continuing her and Oates meetings as they have thus far been conducted without public and media scrutiny.
As previously reported, the original “Reservation of Rights Agreement” was a late June, Town-drafted quasi-legal document agreeing to a one-time, recoverable $10,528.95 payment covering half the $21,102 interest-only July payment on the new Front Royal Police Headquarters debt service. The agreement was first revealed during a June 30 Town Special Meeting called to approve the initial draft. However, due to excessive conditional language included in that document, first EDA officials who were being asked to sign off on the agreement they had no previous knowledge of, and then apparently County officials as well, rejected moving forward with it.
Last week a revised and severely paired back, one paragraph “Reservation of Rights Agreement” was brought forward by North River District Supervisor Oates and Board Vice-Chair Cullers for reconsideration by the supervisors. While the intent remained the same, a one-month, recoverable half-interest Town payment on the July FRPD debt service that the Town was admitting no obligation to make, virtually all the excessive verbiage that would have had the EDA and County signing a document stating the Town has “no legal or moral obligation” to pay for its EDA-financed police station and preventing any future EDA or County use of the payment and its documentation in court or “any forum” was gone.
It was replaced with the Town’s acknowledgment that the payment was being made “with no admission of obligation and reserving all rights to continue to contest this and other matters in pending litigation between the Town and EDA. The EDA accepts this payment acknowledging this reservation of rights.” See Royal Examiner’s coverage of evolution of the draft proposals in previous stories “Legal questions surround Town offer of one-time, recoverable FRPD payment” and “Pared back FRPD payment ‘Reservation of Rights Agreement’ revealed by County”.
As for the asserted “good faith” aspect of the secretive Reservation of Rights Agreement discussion, Carter said, as EDA Board Chairman Daley would soon agree to during his comments on the matter, “Wouldn’t it be good faith if the Town paid their obligations? Wouldn’t it be good faith if the Town, County, and EDA worked together, instead of against each other in legal procedures?”
Both Cullers and Oates responded that was their ultimate goal, adding that the non-publicly acknowledged meetings allowed the conversation to be undertaken “without the undermining going on”. Contacted later, Cullers said that was not a reference to any media coverage of Town-County issues.
Carter continued his “show of good faith” questions, asking, “Is it a show of good faith that the Town is starting its own EDA, thus duplicating costs to the town taxpayers, instead of working together? After all, most of the EDA projects are located in the town.”
Carter also questioned the advisability of the supervisors as the county’s governing body, signing off on a document that Oates admitted had not been what she and Cullers had hoped to achieve on behalf of the County and EDA, which was the full July payment acknowledging the bank-financed 3% interest rate on the FRPD debt service.
Part of the Town of Front Royal’s $20-million-plus civil litigation against the EDA is the claim it was promised a 1.5%, 30-year debt service interest rate on the FRPD project by former EDA Executive Director Jennifer McDonald.
Called to the podium to comment for the EDA Tuesday night, still EDA Board Chairman Daley told the supervisors the EDA has documentation dating to 2017 and 2018 indicating the Town knew the FRPD project interest rate would be no lower than 3%.
Daley also was fairly pointed in indicating to the supervisors that he believed the Town was not dealing in good faith with the EDA regarding any financial issues. He observed that Town legal attacks or refusals to meet financial obligations with the EDA were also attacks on the County since the County has taken on sole financial responsibility in support of the EDA.
Following the 35-minute far-ranging, sometimes pointed conversation, on a motion by Carter, seconded by Fox, the board voted 4-1 to table action on the Reservation of Rights Agreement. Oates cast the lone negative vote. After a long pause when her name was called for the roll call vote, Cullers voted with the majority to table.
See all the drama of your local government in action, including discussion with County Attorney Jason Ham on the advisability of formal versus informal meetings of this magnitude, Chairman Mabe’s observations in the middle of the debate, and Daley’s full observation from the EDA perspective in this Royal Examiner video segment:
Pared back FRPD payment ‘Reservation of Rights Agreement’ revealed by County
In an unexpected and somewhat stunning development in an added agenda item to conclude Tuesday’s Warren County Board of Supervisors Work Session, it was revealed that a revised “Reservation of Rights Agreement” has been negotiated between members of the county board and the Front Royal Town Council. Following the discussion about the new agreement on making the July FRPD construction debt service payment, a board consensus was reached to place a vote on approval of the revised agreement on the board’s July 21st meeting agenda.
The new agreement is a radically pared-back version of the one the town council unanimously approved at a June 30 Special Meeting to cover half the July FRPD headquarters debt service payment, as will be explored in detail below.
Board Vice-Chairman Cheryl Cullers made the motion to add the item to Tuesday’s work session. Delores Oates then noted she and Cullers “met, I think you guys know, with Ms. Cockrell and Chris (Holloway)” on the matter, observing that the supervisors had not appropriated funding to continue covering the EDA FRPD debt service payments into the new fiscal year.
It seems the County and Town are on the verge of taking a high-stakes gamble on whose credit rating will suffer the worst if the EDA’s FRPD debt service payments are not covered this fiscal year.
The pared-back Reservation of Rights Agreement appears to be a compromise to avoid that gamble being played into the commercial banking community as of July 16.
It was revealed during the subsequent discussion that today, Wednesday, July 15, is the last day before the $21,102 interest-only payment to United Bank goes overdue. If the agreement to keep the loan current is realized before either elected body votes to sign off on the method by which it will be done, at least for July, the Town will still only pay half of the monthly amount due, or $10,529.
That half interest-only payment is based on council’s contention that verbal assurances by former EDA Executive Director Jennifer McDonald of a New Market Tax Credit-based 30-year, 1.5% interest rate on the FRPD construction project that it did not even qualify for, is somehow legally binding. The EDA is paying United Bank 3% interest on the debt service.
And while it is the EDA’s loan, supported by the County’s operational funding, both municipalities have traditionally and continue to be responsible for covering the debt service on their capital improvement projects funded through the EDA. It seems clear outside of Town Hall that precedent indicates the intent was for the town government to assume the Town Police Station construction debt service upon completion of the project, dating to October 2018.
But that was before the previous EDA administration financial scandal began unraveling in 2018. That unraveling led to the EDA’s initial March 2019 $21.3 million civil litigation against former EDA Executive Director Jennifer McDonald and 14 co-defendants alleged to have conspired with her to misdirect or embezzle EDA assets to their own benefit. It was followed by the Town’s filing of escalating litigation against the EDA, now seeking recovery of “at least $20 million” of allegedly misdirected or promised Town assets.
But on Tuesday, Oates asserted that the new agreement, which removes the conditional legal language that would have had the County and EDA signing a document that stated the Town had “no moral or legal obligation” to pay for its police station, indicates ongoing “good faith” negotiations between the two municipalities to resolve the FRPD debt service impasse; and perhaps other issues related to the Town’s $20-million-plus civil litigation against the half-century-old joint County-Town EDA. That litigation relates to the previous EDA administration’s financial scandal, details of which were revealed by a 2018 forensic audit commissioned by the EDA and County.
That audit was commissioned in the wake of Town Finance Director B. J. Wilson and Town auditors discovery of financial irregularities in some of the Town’s debt service arrangements with the EDA, though the police station project was not one of those.
It is against this legal backdrop our community financial drama is unfolding.
Pared-back legal verbiage
As opposed to the convoluted legalese we described in our story “Legal questions surround Town offer of one-time, recoverable FRPD payment”, the new, one-paragraph draft “Reservation of Rights Agreement” is brief and to the point, at least comparatively.
It reads: “The Town of Front Royal (‘Town’) tenders $10,528.95 to the Industrial Development Authority of the Town of Front Royal and County of Warren, Virginia a/k/a Economic Development Authority of the County of Warren (‘EDA’) for the July 2020 payment on the loan by United Bank for the Town Police Department with no admission of obligation and reserving all rights to continue to contest this and other matters in pending litigation between the Town and EDA. The EDA accepts this payment acknowledging this reservation of rights.”
Gone are the “Conditions” that led EDA attorney Sharon Pandak to tell Royal Examiner upon our reading them to her over the phone, that she would be reluctant to advise the EDA to sign off on the initial agreement. Those deleted passages include:
“The Town denies that it owes any moral or legal obligation to repay the Loan”;
“The County and the EDA acknowledge that this payment shall not be construed as, considered to be, or argued to be, in any forum, an admission for any purpose, including but not limited to of liability of the Town for the Loan or the Costs”; and,
“All parties agree that payment hereunder shall be inadmissible for any purpose except by the Town to recover this payment as damages in the Litigation,” among other legally qualifying passages.
So, good-faith negotiations perhaps – just in small steps, VERY small steps with a very large credit rating gamble looming in the balance that could impact this community’s financial future on both sides of the Town-County boundary.
Thus far the EDA, with County support has been making what have been interest-only payments on the $9-million FRPD project. That will change on November 1, when the United Bank loan moves to principal and interest payments. EDA Executive Director Doug Parsons estimated that would take the monthly payments to about $50,000 from the $21,000 interest-only range.
According to Parsons the balance on the United Bank FRPD headquarters loan as of June 1, when the EDA submitted an invoice to the Town for slightly over $441,300 paid thus far by the EDA, is $8.44 million.
How not only this month’s payment but also coming ones will be handled by both municipalities appears to be hinted at by the new one-paragraph Reservation of Rights Agreement spitting the FRPD debt service down the middle with minimal additional legal verbiage. Letting the EDA’s FRPD debt service go delinquent may not be a gamble in either involved municipality’s best interest.
At issue now appears to be will July’s $21,102 payment be made by somebody, somehow before the end of the July 15th banking day; and will majorities of both the Town and County’s elected bodies to agree to this arrangement on an ongoing basis to prevent that rather large credit-rating gamble being played on the municipal-banking poker table??
Stay tuned for the next thrilling episode of “As the FRPD Debt Service – and EDA, Town and County Credit Ratings – Turn”. But while you wait for that next episode, see Tuesday night’s episode unfold over the last 10 minutes or so of Tuesday’s meeting in this Royal Examiner video:
Town authorizes new EDA; Chamber as CARES administrator; and FRPD equipment upgrades
On Monday, July 13, the Front Royal Town Council took several actions, for better or worse, that will shape several key future functions in coming months and years. At the top of the list was second and final reading approval – 4-1, Thompson dissenting as she did at the June 22 first reading – of creation of a new Economic Development Authority solely overseen and funded by the town government and its taxpayers.
The Town will become the first municipality in Virginia to concurrently be a part of two EDA’s. In an unprecedented example of attempting to “have your cake and sue it too”, the Town has maintained its half-century-plus, co-founding membership in the half-century-old joint County-Town EDA while civil litigating for virtually all the money the EDA is trying to recover in its initial $21.3 million civil action against its former executive director and 14 co-defendants accused of conspiring to misdirect or embezzle EDA assets.
But at least the Town does not have to fund operational costs of the old EDA, as in EDA legal fees to fight the Town litigation, while figuring out where its operational costs for it new unilateral EDA will come from, if not a successful civil litigation against its old EDA. For as previously reported, the County took over the Town’s share of joint EDA operational funding several years ago as part of ongoing negotiations about the double taxation of town citizens. So, while the town government doesn’t have to fund the EDA’s legal defense against it, its citizens do as county taxpayers.
Alright, enough of that dizzying legal scenario.
Also approved Monday were a Fiscal Year-2021 budget amendment authorizing receipt of $1,276,558 of the County’s $3.5 million in CARES (Coronavirus Assistance, Relief Equities and Securities) Act federal funding for COVID-19 relief for private-sector economic losses incurred due to the Coronavirus pandemic emergency management response restrictions; as well as an agreement with the Front Royal-Warren County Chamber of Commerce to manage distribution of the Town’s CARES Act funds.
The amount of money authorized to be put under the Chamber’s control was $1,176,558, $100,000 less than the total amount being transferred to Town control. According to the staff summary, that $100,000 is being put into the General Fund Contingency account to cover “COVID-19 expenses”.
Questioned about those expenses by Councilwoman Lori Athey Cockrell, Interim Town Manager Matt Tederick said those costs were an “unknown” at this time, so no amount was being cited at this point in the process.
However, Tederick said he was “confident” those costs would be “minimal”.
Also approved in a series of 5-0 votes, Holloway absent, as were the CARES Act related items, were three appropriations totaling $256,981.72 for equipment upgrade purchases for the Front Royal Police Department. FRPD Chief Kahle Magalis made a detailed presentation on the need for the equipment upgrades at council’s previous work session.
Those equipment purchase authorizations were:
- $82,159.72 for a VESTA 911 phone system;
- $162,000 for replacement of 10 WatchGuard 4Re In-car WIFI camera systems, and 24 VISTA body cameras, and;
- $12,822 for Avtec-Motorola radio console equipment to replace existing equipment termed at its “end of life” stage of service.
As Chief Magalis told council at his work session presentation, these equipment upgrades are the cost of doing law enforcement work at an optimum of communications efficiency; and self-monitoring standards that protect both the public and the department’s personnel legally.
The agenda summary noted that the Town will pay for the car and body cameras at $32,440 annually over a five-year period. Funding for all three purchases were cited as available through existing FY-2021 FRPD budget line items.
A scheduled Closed Session to discuss unspecified “Personnel” matters was deleted from the agenda at Councilman Meza’s suggestion, due to the absence of one member, Chris Holloway.
Lori Cockrell’s request to then add a Closed Session to discuss the Town’s litigation against the County-Town Economic Development Authority was rejected for not receiving the required unanimous vote to alter the advertised agenda. Councilwoman Letasha Thompson explained she would oppose the addition on the same grounds council had agreed to remove the scheduled Closed Session, Holloway’s absence preventing consideration by the full council.
The final agenda item was unanimous approval of a Resolution of support for a Town “Employee Appreciation Day” to be this Wednesday, July 15. The resolution cited the ongoing contributions of the Town’s remaining 168 part and full-time employees, particularly during upheavals in normal service resulting from the COVID-19 Coronavirus pandemic emergency management response. Staff will be honored with a Town-hosted luncheon tomorrow to mark Employee Appreciation Day.
See the staff summaries, discussion and votes on these matters, as well as Stars of the Month Employee recognitions to the Solid Waste Department’s EJ Swindell and Jorge Guerrero for work “above and beyond”; and the departmental “pinning” by his wife, of FRPD’s newest Officer Scott Baker; and public presentations on town road infrastructure/pothole issues (Mike McCool), trash accumulation and overflow at the County Dog Park in town (Betty Showers), and another 2nd Amendment Sanctuary initiative seeking to shield citizens from State-enacted gun laws presented to council (Paul Aldridge) in this Royal Examiner video:
Legal questions surround Town offer of one-time, recoverable FRPD payment
Without accepting any responsibility for the nearly $9-million cost of its new police headquarters building, at a hastily called Tuesday evening Special Meeting to accommodate the turn of the fiscal year today, Wednesday, July 1st, the Front Royal Town Council unanimously approved a “Reservation of Rights Agreement” allowing the Town to pay a portion of the first debt service payment of Fiscal Year 2021 on that Town/EDA capital improvement project. The project was completed in October 2018 and the Town has yet to compensate the EDA for any of its costs in financing the project as will be elaborated on below.
Also approved during the eight-minute meeting prior to an adjournment to closed session for personnel matters believed to be the first of two town managers interviews scheduled this week, was an extension past June 30, and alteration to the contract payment terms of Interim Town Manager Matt Tederick. That will be covered in a separate Royal Examiner story.
As to the Reservation of Rights Agreement with Warren County, the authorized one-time payment of $10,528.95 covers half of the Front Royal-Warren County Economic Development Authority’s interest-only payment of approximately $21,102 due at the July 1st start of FY-2021.
Contacted Wednesday morning, EDA Executive Director Doug Parson explained the EDA’s loan to facilitate construction of the Town Police headquarters have thus far been interest-only payments based on a 30-day month. That will change on November 1, when the United Bank loan moves to principal and interest payments. Parsons estimated that would take the monthly payments to about $50,000 from the $21,000 interest-only range.
The United Bank’s interest rate on the loan is 3%. However, the town council has taken the legal stance that it should only have to pay a 30-year, 1.5% interest rate it asserts was verbally promised to it by former EDA Executive Director Jennifer McDonald. As previously reported by Royal Examiner, that 1.5% rate was tied to the construction project qualifying for a 30-year New Market Tax Credit Program (NMTC) loan with a nine-year waiver of interest payments. However, the NMTC program loans are for municipal capital improvement projects that create new jobs, which the FRPD project did not.
Councilwoman Lori Athey Cockrell took the opportunity of council’s passage of the agreement facilitating a one-time, half monthly payment on the FRPD debt service as an indicator that the council and its staff are working proactively with the Warren County government to resolve outstanding legal and financial issues surrounding the EDA.
Prominent among those Town-County/EDA issues is what EDA officials have called “an undisputed” $8.4 million Town “moral obligation” debt on principal to the EDA on the police headquarters construction project. With interest, the balance on that debt is $8.8 million, EDA Director Parsons told Royal Examiner Wednesday.
EDA Board of Directors Chairman Ed Daley was present to watch Tuesday’s council action unfold. Asked for a reaction prior to having a chance to read the Reservation of Rights Agreement, Daley said, “Anything that moves it forward is positive.”
However, after a closer read, exactly how far forward Tuesday’s council action takes the Town-County-EDA discussion, remains a question.
$440,000 invoice – $10,500 (recoverable) payment
The opening paragraph of the Reservation of Rights Agreement notes that the Town had received a June 2 invoice “ostensibly setting out all costs incurred by the EDA in constructing and financing the construction of the Town of Front Royal Police Department (‘Costs’), including the costs and expenses associated with the loan from United Bank obtained to finance construction (‘Loan’)” and continues to note those costs and loan “are currently the subject of dispute” in the Town’s civil action against the EDA.
It is a civil action in which the Town’s contracted Damiani & Damiani law firm appears to have mirrored much of the language in the EDA’s initial civil litigation against Jennifer McDonald and 14 civil co-defendants and which seeks essentially all ($20 million-plus) of the $21.3 million the EDA alleges was misdirected by its former executive director and her first group of co-defendants. In April the EDA filed a second civil action, adding nine defendants and “not less than” $4.45 million in recoverable assets to its litigation.
But as to that June 2 invoice from the EDA, an invoice implying a request for payment on a debt, according to numbers in that invoice what the EDA presented to the Town was a bill for slightly over $441,300 spent thus far on the $8.8 million FRPD headquarters construction loan balance.
What the County and EDA got in response was the above-cited agreement facilitating a recoverable $10,529 payment that on a closer examination appears to try and legally tie the County and EDA’s hands in future court proceedings.
Legal ties that bind?
That agreement references ongoing “discussions” between the Town and County “which may result in amending the Town’s claims in the Litigation (against the EDA)”.
Contacted Wednesday, County Administrator Doug Stanley said county staff had not been involved in those discussions. Attempts to reach Board of Supervisors Chairman Walt Mabe, Vice-Chair Cheryl Cullers, and County Attorney Jason Ham for information on the referenced discussions and council proposal were unsuccessful prior to publication.
So, referencing the “Reservation of Rights Agreement” passed 6-0 by council Monday, it states:
“WHEREAS, to facilitate the discussions, the County has asked the Town to make the disputed July 1, 2020, payment on the Loan and the Town has agreed, subject to the terms and conditions stated herein.” – As noted above, what was agreed to was a payment of $10,528.95, or half of the interest-only payment due for July, under the following conditions:
Condition 1 – “The Town denies that it owes any moral or legal obligation to repay the Loan” followed by Condition 2, noting that its payment is calculated on the unrealized New Market Tax Credit interest rate of 1.5%, rather than the actual 3% bank loan interest rate.
Condition 3 – “The County and the EDA acknowledge that this payment shall not be construed as, considered to be, or argued to be, in any forum, admission for any purpose, including but not limited to of liability of the Town for the Loan or the Costs.
Condition 4 – “The County and the EDA acknowledge that the Town’s payment is for a disputed debt, under a reservation of rights, and the Town reserves the right to continue to deny liability for the Loan or Costs and to recoup this payment should the discussions prove ultimately unsuccessful.
And drum roll, please, Condition 5 – “All parties agree that payment hereunder shall be inadmissible for any purpose except by the Town to recover this payment as damages in the Litigation.”
So, while Councilwoman Cockrell called the agreement a sign of good faith negotiations in the public interest by the Town, adding that news reports the Town is acting other than in good faith concerning the EDA as creating “a false narrative”, is she right?
Perhaps the EDA’s and County’s attorneys would be the best judge of that – hopefully prior to the signing of the “Reservation of Rights Agreement” by County and EDA officials. For at issue appears to be whose rights are being reserved, and in exactly what legal context regarding the Town’s civil litigation against the EDA and any related litigation over the Town’s responsibility to pay for its $9-million police station.
Because according to the document approved unanimously Tuesday night by the Front Royal Town Council, the Town has no “moral or legal” obligation to pay the EDA-undertaken $8.8-million loan that financed the construction of the Front Royal Police headquarters.
Is that something EDA and Warren County officials really want to sign off on in exchange for a one-time, recoverable, half monthly debt service payment?
Let’s see, a total of $20 million or more at stake versus a “recoverable” $10,500 payment – what do you think?
We asked EDA Board Chairman Daley his opinion on Wednesday after he had a chance to review the Reservation of Rights documents more closely.
“The first the EDA heard of this was last night, which seems odd in that we are asked to sign off on it. But we’ll need to consult with our attorney first,” Daley reasoned.
Of the contention on a lack of Town liability to pay for its police station included in the document, Daley observed, “The EDA was happy to facilitate a project like that. But it was their (the Town’s) contract, their design, we just helped finance it. I think they need to get their financing together and pay for their police station.”
After we read the conditions in the agreement to her over the phone, EDA Attorney Sharon Pandak lauded the opportunity for further communications on Town-EDA/County issues but was skeptical as to a recommendation on the EDA signing off on the Reservation of Rights Agreement as worded.