Royal Examiner editorial department staff have occasionally pondered the often overly vague language of motions used to adjourn to Executive/Closed Sessions, particularly on the Town side of local municipal government. Those motions and the information in them are guided by Virginia Freedom of Information Act (FOIA) standards on a variety of levels. Royal Examiner recently contacted Virginia FOIA Advisory Council Executive Director Alan Gernhardt about those standards, particularly as they applied to a December 1 “Special Closed Meeting” of the Front Royal Town Council called by Mayor Chris Holloway.
Gernhardt’s response referenced a history of Virginia FOIA Advisory Council opinions on the state standards for balancing the public’s right to know how they are being governed by their elected officials and those officials’ occasional need for some degree of secrecy, generally in competitive bidding, property transactional, legal, and personnel matters. How the wording of motions to adjourn to Closed/Executive Session must balance these sometimes-conflicting standards in a democratically based but also economically competitive and sometimes legally contentious society, revolve around three elements. Those are (1) the subject of the closed meeting; (2) the purpose of the closed meeting; and (3) reference to the applicable FOIA law section exempting the meeting from the public view.
“The law clearly states, and this office has previously opined, that a motion that lacks any of these three elements would be insufficient under the law,” one example of an earlier state FOIA Advisory Council opinion Gernhardt provided to Royal Examiner states. However, it adds that: “… when identifying the subject of a closed meeting, the subject need not be so specific as to defeat the reason for going into the closed session but should at least provide the public with general information as to why the closed meeting will be held.”
This information takes us to the motion used to convene the December 1 Special Meeting closed session announced the previous day. That motion circulated with the “Town Council Special Closed Meeting” agenda prior to the meeting, reads in its entirety: “I move that Town Council go into Closed Meeting pursuant to Section 2.2-3711.A.7 of the Code of Virginia for consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation involving a former employee of the Town, where such consultation or briefing in Open Meeting would adversely affect the negotiating or litigating posture of the public body.”
For starters, the passage “pertaining to actual or probable litigation involving a former employee” seems far too vague to comply with state FOIA statutes since the discussion seemingly involves only one former employee, hence one litigation – So, which is it, actual or probable litigation?
The question is an important one because whether the litigation has been filed and has appeared on a court docket impacts the degree of specificity or vagueness with which the “subject” or “purpose” of the meeting may be described. For unfiled litigation, Gernhardt told us such descriptions as “litigation with a former employee” are sufficient to meet FOIA requirements because “it says more than just ‘litigation matters’ while not disclosing the actual nature or details” of a case yet to be filed on a court docket.
Regarding legal cases that have been filed with detail of an alleged cause made by a specific party made public through the court system, Gernhardt said somewhat more specificity is required. “For litigation matters, I generally would recommend using the style of the case if it has already been filed and appears on a public docket,” he said. “Style” in this case appearing to reference at base minimum, whom the litigation is with. That is the policy that Warren County and its post-financial scandal, re-tooled Economic Development Authority (EDA) have taken with all motions on existing litigation.
Just two days after town council’s vaguely adjourned to Special Closed Meeting of December 1, the County EDA adjourned to a 12-item Closed Meeting that included six real estate, four legal, one bank re-financing/legal, and one personnel matter. ALL 12 matters were identified as to “subject” by name with some degree of purpose though not to a degree to defeat the purpose of having the discussion behind closed doors by FOIA requirements. Ironically, three of the four legal matters related to litigation between the County EDA and the Town of Front Royal municipal government. We will include that litigation portion of the EDA motion to illustrate what we believe is a FOIA-compliant motion into closed on existing legal matters, now being used by both the County and its EDA:
“4. CLOSED MEETING Dec. 3, 2021, motion into: … · 4 matters – Consultation with legal counsel and briefings by staff members pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body, EDA v. Jennifer McDonald, et al., EDA v. Town of Front Royal, Town of Front Royal v. EDA, and legal advice related thereto and regarding other matters relating to claims of the Town of Front Royal pursuant to Va. Code §§ 2.2-3711.A.7 and 8.”
To contrast, let’s revisit the Town motion in question as presented and approved in that meeting’s minutes as having been read into the record by Vice-Mayor Lorie Cockrell, seconded by Letasha Thompson: “I move that Town Council go into Closed Meeting pursuant to Section 2.2-3711.A.7 of the Code of Virginia for consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation involving a former employee of the Town, where such consultation or briefing in Open Meeting would adversely affect the negotiating or litigating posture of the public body.”
On the Town side it appears one of the three elements required by FOIA law – “subject” is missing in that whether it is an unfiled “probable” litigation or an “actual” litigation that has been filed, say for example former Council Clerk Jennifer Berry’s federal sexual harassment suit, at the time scheduled for trial in February 2022, is not specified.
And were it to be filed litigation that was discussed behind closed doors December 1, is it possible a second key element, “purpose”, is missing? For the only purpose cited in the motion is “consultation with legal counsel and briefings by staff members or consultants”. Could that be enough “purpose” to satisfy FOIA law regarding “actual” litigation in what was called as an “emergency meeting” as will be discussed in more detail here later; or would additional detail such as “discussion of approaching filing deadlines” be required?
Royal Examiner spoke to Jennifer Berry’s attorney, Tim Cupp, in her suit against the Town on December 1st looking for clues the closed session might have been called regarding his client’s case. While declining to speculate why the mayor had called that special closed meeting, Cupp did note that December 1 was the final day for Discovery motions filings in the Berry case on the Harrisonburg federal Western District of Virginia docket slated for trial in February. Could it be a coincidence that within days of the Front Royal Town Council’s “Special Closed Meeting” of December 1, the Berry vs. Town of Front Royal federal sexual harassment trial in which Mayor Holloway has been named as a figure in alleged attempts to have Berry withdraw a related internal complaint involving former vice mayor and councilman William Sealock, was rescheduled to May 2022?
Ultimately, as Gernhardt pointed out to Royal Examiner, a determination on meeting FOIA law compliance would be determined by a judge were a complaint to be filed that it had not been in a particular case. Gernhardt also provided Royal Examiner with a Virginia Supreme Court ruling, BEVERLY COLE, INDIVIDUALLY, ET AL. v. SMYTH COUNTY BOARD OF SUPERVISORS, ET AL. (No. 17120 May 28, 2020), which overturned a lower court decision, and mandates the above-referenced “subject” and “purpose” standards.
In that case, the Virginia Supreme Court ruled unanimously that the Smyth County Board of Supervisors used an improper motion to go into closed session and talked about matters beyond the scope of the claimed exemption.
While exploring FOIA law regarding the above issues of adequate “subject” and “purpose” standards being met in convening the December 1 “Special Closed Meeting” two other factors attracted Royal Examiner editorial staff’s attention. Those were, first, the short turnaround on notice of the meeting being circulated, approximately 27 hours, as opposed to the three-day minimum public notice for non-emergency special meetings; and second, the fact that both access doors to the section of the Front Royal Town Hall where the special meeting was taking place were locked while the meeting was still in progress.
Locked Out or Not Locked Out?
Notice of the council special meeting emailed to the media at 3:22 p.m., Tuesday, November 30, by Town Administrative Assistant and Council Clerk Tina Presley read: “The mayor has called a special closed meeting for Wednesday, December 1, 2021, at 6:30 p.m. in Town Hall.”
With a Town Planning Commission work session on a new short-term tourist rental ordinance under development scheduled for 6 p.m. in the second-floor meeting room town council normally uses for meetings at Town Hall, it was unclear exactly where that council special meeting would be held. In response to inquiries, it was eventually determined to be somewhere in the Finance Department section of Town Hall. That section is on the Crescent Street/Afton Inn side of the first floor of Town Hall to the left as you enter the primary, East Main Street entrance.
We note this because when the December 1st planning commission meeting ended around 7 p.m., the two media present, this reporter and Alex Bridges of the Northern Virginia Daily, attempted to enter the Finance Department section of town hall to ascertain if the council special meeting was still in progress and await its adjournment for any announcement or action. Finding the access door locked, we sought the assistance of Planning Director Lauren Kopishke, mingling with planning commission members on their way out of town hall. Surprisingly, Kopishke found that her access code credential was somehow disabled, preventing her assisting media access to the area of the council special meeting.
Press also established that the rear parking lot outside access door, the only other entrance to that section of the building, was also locked between 7:15 and 7:30 p.m. Town Manager Steven Hicks later informed the press that once out of closed, the open meeting was adjourned at 7:46 p.m. without any announcement or action.
So, in addition to questions about FOIA public disclosure standards being met, the additional question of public/press access to the open portions of the special meeting were raised. Questioned about this, Hicks told Royal Examiner that the doors in question had been unlocked at the meeting’s convening and adjournment, so that any public or press present could have accessed the open portions of the meeting. Unfortunately, no member of the press or public, to our knowledge, was present at those specific times of 6:30 and 7:46 p.m. to test that timely locking and unlocking scenario.
Special or Emergency Meeting?
Council Clerk and Administrative Assistant Tina Presley sent media an e-mailed notice of the meeting at 3:22 p.m. Tuesday, November 30, some 27 hours prior to the meeting’s announced 6:30 p.m. open session starting time the following evening. In a Dec. 2nd telephone conversation regarding the special meeting’s announcement, Ms. Presley relayed to Royal Examiner’s Norma Jean Shaw, “I just did what the mayor asked me to do.” When asked why she didn’t post the meeting notice on social media or the Town’s website Presley stated, “I guess I could have, but I only sent it to the three local reporters who normally cover the council meetings.”
The fact the meeting was bypassing the normal three-day minimum public notice of municipal government meetings indicated that it was not only a “special meeting,” but an “emergency” one requiring immediate attention for one reason or another.
Was there sufficient reason, as the town manager contends there was, to designate an “emergency” meeting that allowed less than three-days’ public notice? Because of the ongoing refusal of the town administrative or contracted legal staff to elaborate on the subject or purpose of what is now admitted to have been closed session discussion of existing litigation, your guess is as good as ours. But is the fact we are still guessing at answers to numerous questions about that behind-closed-doors meeting an indication that the Front Royal Town government is in ongoing violation of Virginia Freedom of Information Act standards?
Perhaps a judge will tell us.
EDA Board Chairman Jeff Browne reacts to July civil litigation results ordering total of over $13.35 million paid to the County Economic Development Authority
As noted in our lead story on the “Warren Economic Development Authority” (EDA) versus Truc “Curt” Tran and his ITFederal LLC company civil liability case result (See: Jury awards WC EDA $11.9 million-plus in civil compensatory claims against ITFederal and Truc ‘Curt’ Tran), involved players on the plaintiff’s side deferred to current EDA Board Chairman Jeff Browne for a reaction, not only to the Tran/ITFederal result, but a month in which four civil liability cases went the EDA’s way. After a day of reflection on this month’s civil liability trials, much of which he watched in the courtroom, often with other EDA board members, this is what Browne told Royal Examiner:
“As part of the Jennifer McDonald lawsuits, the EDA successfully sued six defendants this month in four civil jury trials and was awarded about $13 million in compensatory damages, $400,000 in punitive damages, and $75,000 in damages for statutory conspiracy. There will be additional civil trials in March 2023.
“The EDA’s main responsibility in these lawsuits is to recover assets that rightfully belong to the EDA and ultimately to the residents of Warren County. It’s a work in progress, but I’m pleased with the outcomes. Every defendant was found liable on multiple charges. Every defendant has to pay. A jury found that the EDA Board of Directors with oversight responsibility of Jennifer McDonald wasn’t negligent in retaining her as it took immediate steps after finding solid evidence of her misbehavior.
“But that isn’t the whole story. Members of the EDA Board were present on every day of every trial. We were impressed with the juries and Judge Albertson. Jury members listened attentively, took notes, and showed in their verdicts that they had a command of the facts in each case. Judge Albertson was fair to both sides of each case and did a good job of managing each trial. Prior members of the EDA Board, prior staff EDA members, a former county administrator, and former members of the Warren County Board of Supervisors all stepped up to testify and do their civic duty. We can be proud that our judicial system still works.
“The criminal process moves forward in other venues. In the meantime, some measure of justice is present in the jury verdicts in Warren County this month. For that, we are grateful.”
Coupled with the out-of-court “no-fault” settlement agreement with McDonald for an estimated $9 million in real estate assets, the courts have now ordered the return of $22 million to $23 million in assets to the EDA. At various points in the investigation into alleged embezzlement and misdirection of EDA assets between 2014 and 2018, the total involved amount has been cited from $21 million to $26 million. There have been significant legal fees involved, perhaps $6 million or more. But in the wake of this month’s results, it appears the EDA’s contracted civil counsel from the Sands Anderson law firm of Richmond are earning that money.
Asked for a reaction to the verdict, Tran and his attorney Gregory Melus declined comment. As noted in the above linked story on the verdict, Melus notified the court of his intention to file a motion to overturn the verdict as not supported by the evidence presented at trial, as have the other three involved civil case defense attorneys.
Jury awards WC EDA $11.9 million-plus in civil compensatory claims against ITFederal and Truc ‘Curt’ Tran
After five hours of deliberation beginning shortly after 9 a.m., at 3:30 p.m. Thursday afternoon, July 28, a Warren County Circuit Court civil case jury awarded the “Warren Economic Development Authority” (aka EDA, WC EDA, FR-WC EDA) a total of $11,919,313.38, plus some interest payments from defendants Truc “Curt” Tran and his ITFederal LLC company. The finding of liability against the defendants related to exchanges of money for Tran and ITFederals’ plan to develop a 30-acre parcel at the 148-acre Royal Phoenix Business Park portion of the former Avtex Superfund site in Front Royal. That seven-person civil case jury also dismissed all counterclaims by co-defendants Tran and ITFederal related to breach of contract and surrounding claims against the EDA.
However, the jury did not find the defendants liable on claims of Conspiracy and Fraud that could have led to significant punitive damages up to $350,000, or as high as triple the compensatory claim of $11.9 million if found guilty of statutory conspiracy indicating malice against the plaintiff. Tran was found liable on claims of Conversion, Unjust Enrichment, and Ultra Vires, the latter actions outside the authority of involved officials. ITFederal was found liable on claims Conversion, Unjust Enrichment, Ultra Vires, and Breach of Contract.
The breakdown of liability of the defendants was $1,499,986 against Tran, plus 3-1/4 years of interest on that amount accumulated since the March 2019 filing of the EDA civil actions against defendants alleged to have worked with former EDA Executive Director Jennifer McDonald between 2014 and 2018 to defraud the EDA out of an estimated $21-million. The $11.9-million claim of compensatory damages against Tran and ITFederal was the largest single portion of the EDA civil liability actions for recovery of lost assets. With approval of a bankruptcy court judge, McDonald settled EDA claims against her in an out-of-court “no-fault” settlement for what was cited as $9 million in real estate assets.
From testimony over four days of trial in the Tran/ITFederal liability case that $1.499-million finding against Tran related to EDA payments made to Tran under the pretense it was front money that would be reimbursed to the EDA by a $1.5 million Virginia Economic Development Partnership (VEDP) grant that was never acquired, or even applied for.
The finding of liability for $10,419,327.38 against ITFederal revolved around the $8,419,327.38 balance of a $10-million loan/promissory note the EDA gave the company to begin development of the ITFederal parcel behind the EDA offices in the old Avtex Administration building off Kendrick Lane. As noted in previous stories (see LINKS at end of story) on testimony and evidence presented during the trial, ITFederal was presented to the EDA Board of Directors in 2015-16 by then Sixth District Congressman Robert Goodlatte as not really needing the loan. Past EDA board members Greg Drescher and Ron Llewellyn testified that Goodlatte suggested the loan as a public relations move to illustrate Virginia’s positive work with the private sector to redevelop a former federal Superfund “brownfield” site.
Consequently, despite the written-in 30-year payback loan term, EDA officials believed it was actually being done as a short-term public relations effort, and would be paid back in a matter of months when what they believed was an existing $140-million ITFederal contract with the Nuclear Regulatory Commission (NRC) kicked in. A McDonald representation to her board that Tran would become an “anonymous donor” of $8-million to a proposed Criminal Justice Academy project then being worked on by the EDA, was seen as the start of that early repayment, the former EDA board members testified.
It appears this civil case jury, as three before it this month, have rejected a defense theory of the case asserting that the defendants were unwitting victims of McDonald’s alleged lies concerning the movement of EDA assets, just as the EDA was victimized. Plaintiff attorneys from the Sands Anderson law firm of Richmond, Va., countered those arguments by asking the jury to “follow the money” to see who benefited from the misinformation they allege McDonald was giving the EDA board, as well as EDA auditors.
During the previous morning session on Wednesday, the two sides presented their final witnesses: for the defense Mark Viola, proprietor of Viola Engineering, who did geo-technical work for Tran on the ITFederal site regarding construction delays related to underground discoveries of old utility piping and substances; and in plaintiff rebuttal to some of the previous day’s defense assertions, former County and EDA attorney Dan Whitten.
Late Wednesday, the court heard motions from both sides to strike the opposition claims against their clients. After listening to extensive arguments from both sides, Judge Albertson denied all motions to strike claims by either side, preferring as he has reviewing similar motions in earlier EDA civil liability cases this month, to allow the jury to make the decision on the substance of each sides’ claims against the other. After adjourning to dinner of pizza ordered to the courthouse for them around 7 p.m., the jury returned at 7:25 p.m. to say they preferred to go home and begin deliberations Thursday morning, which Judge Albertson agreed to.
As the three previous defense attorneys have following findings in the EDA’s favor this month, Tran/ITFederal counsel Gregory Melus notified the court he would file a motion to overturn the jury verdict. Those motions appear based on a defense contention evidence produced at trial was inadequate to justify conviction. A 30/30/10 day filing and response time schedule was set, though plaintiff counsel indicated if Melus needed additional time due to scheduling conflicts, that would not be a problem.
With motions to overturn on the table, counsel for both sides declined comment following Thursday’s verdict. Current EDA Board Chairman Jeff Browne, who observed much of the trial along with board members Jim Wolfe, Scott Jenkins, and Greg Harold, indicated that after speaking with counsel and some consideration he might have a response for the media shortly. See that EDA response in related story posted when available.
EDA civil liability defendant ‘Curt’ Tran on witness stand for over 4-1/2 hours as trial heads into final day
Tuesday, July 26, the third day of the “Warren Economic Development Authority” versus Truc “Curt” Tran and ITFederal LLC civil liability and counter-suit case was highlighted by the defendant’s 4-hours-and-37-minutes on the witness stand. That time started with a 2-hour-25-minute near monologue on direct examination, followed by 1-hour-58-minutes of sometimes contentious cross-examination by EDA co-counsel Lee Byrd and a fortuitously briefer 14 minutes of redirect examination by defense attorney Gregory Melus. On direct examination, Tran recounted his life story, beginning as an 11-to-12-year-old refugee to America in the wake of the Vietnam War and the fall of Saigon, leading into his work in data storage with the federal government and private sector, culminating with his efforts to develop a federally funded data center and import/export business in Front Royal and Warren County.
During that direct examination, Tran managed to recount a series of circumstances involving not only former EDA Executive Director Jennifer McDonald and a lack of supervisory EDA Board of Directors oversight of McDonald, but also shifting federal program guidelines, former President Barack Obama, and failed 2016 presidential candidate Hillary Clinton among reasons his projects here failed. The latter two involved a failure of the federal government during Obama’s presidential tenure to sign into law the Trans-Pacific Partnership (TPP), an international trade agreement that might have helped facilitate the import-export business Tran had hoped to create with his ITFederal company involving the cattle farm production of beef on acreage purchased off Happy Creek Road.
During a sometimes explosive cross-examination, Tran conditionally insinuated that several previous witnesses may have perjured themselves during testimony regarding circumstances of his agreements on the ITFederal project. Those witnesses in the defendant’s crosshairs of scrutiny included former EDA and County Attorney Dan Whitten, former EDA board member Ron Llewellyn, and Virginia Economic Development Partnership (VEDP) official Debbie Melvin.
In fact, Tran appeared to flirt with accusing former U.S. 6th District of Virginia Congressman Robert Goodlatte of, if not perjury, since he was not called as a witness for either side, but potential past lying were testimony from other witnesses, including Whitten, Llewellyn, and Greg Drescher, to be proven true regarding Goodlatte’s lobbying for Tran/ITFederal to receive the $10-million EDA loan for the Avtex site ITFederal project on a short-term basis as a positive public relations initiative for Virginia.
“I never say short-term, I didn’t say that – did he say that?” Tran wondered of multiple witnesses saying Goodlatte presented the $10-million dollar loan for the ITFederal project as a public relations effort to attract more business interest in Virginia rather than a loan Tran and his company actually needed to achieve their planned Avtex site federal data center development. With one defense witness remaining to be called Wednesday, one might wish Goodlatte was that witness to address that question, though he has not appeared on a prospective witness list.
Prior to sending the jury home at 7:02 p.m. Tuesday, Judge Bruce D. Albertson told that jury he anticipated deliberations to be handed over to them no later than early-to-mid-afternoon on Wednesday. Those deliberations involve an EDA base compensatory damage claim of over $ 11 million against Tran/ITFederal, as well as potential punitive damages up to $300,000 or more were the jury to find Tran and his company guilty of statutory conspiracy to defraud the EDA out of assets obtained under alleged fraudulent circumstances. Testimony indicated the defendants’ counterclaim at a base of approximately $4 million, with more at stake punitively as well.
EDA vs. Tran/ITFederal civil liability and counterclaim trial heads into third day with defense poised to call final series of witnesses
On Monday, July 25, the plaintiff “Warren Economic Development Authority” (aka EDA, WC EDA, FR-WC EDA) completed presentation of its case for liability for both compensatory and punitive damages during the morning session of its case against Truc “Curt” Tran and his ITFederal LLC company. Plaintiff counsel from the Sands Anderson law firm of Richmond, Virginia, called one witness after opening the day’s evidence with edited video of portions of two depositions they took from Tran, the first on October 8, 2021, the second three weeks later on November 1, 2021.
Both Tran’s responses to questions by plaintiff counsel at deposition and the testimony of the fourth and final plaintiff witness, former EDA Board of Directors member, Chairman, and Warren County Public Schools Superintendent Greg Drescher were presented to further the EDA contention Tran was an active participant and co-conspirator with former EDA Executive Director Jennifer McDonald in an effort to defraud the EDA into believing he had the means for follow through on promised development of 30 acres at the 147-acre Royal Phoenix portion of the former Avtex Superfund site. Primary among that fraudulent behavior according to the EDA theory of the case was the assertion ITFederal had secured a $140-million contract with the federal Nuclear Regulatory Commission (NRC), as well as accessing a Virginia Economic Development Partnership (VEDP) grant related to job creation. Evidence indicated neither was true.
Drescher reiterated testimony from former EDA attorney Dan Whitten on the trial’s first day last Friday concerning former U.S. Virginia Sixth District Representative Robert “Bob” Goodlatte’s efforts to justify a $10-million loan to Tran and ITFederal as a positive public relations move, despite his assertion that Tran and his company didn’t really need the loan. Drescher added that due to the nature of how the loan was presented as a show of cooperation between Virginia EDA’s and the private sector, he had believed the money would be returned to the EDA in a number of months, rather than years. That belief led to acceptance of the idea brought to the EDA board by its executive director that Tran would be an “anonymous donor” in development of a police training academy to the tune of $8 million dollars that then-Sheriff Daniel McEathron was interested in developing here.
However, defense counsel Gregory Melus pointed out to Drescher on cross examination that the terms of the EDA-financed $10-million loan to Tran clearly states that the loan had a 30-year payback term written into it. During a 55-minute cross examination, Melus repeatedly pressed Drescher on the lack of oversight provided by the EDA Board of Directors that he claims made his client a victim, rather than a player in any conspiracy alleged by the EDA regarding the failed promises of development creating as many as 600 quality jobs related to a government contracted data center on the 30-acre ITFederal parcel at Avtex.
That fact, among other shortcomings he cited in direct evidence against his client, led Melus to move to strike the plaintiff’s case on the majority of claims against Tran and his company following the resting of the EDA case. However, after hearing both sides arguments in that regard, Judge Bruce D. Albertson overruled the defense motion to strike the plaintiff claims against Tran and his company. As it has in this month’s previous EDA civil liability trials, the court expressed the opinion that the plaintiff evidence presented was sufficient to let the jury decide on its weight, rather than the court midway thru the trial.
With the case thrown to it, the defense opened its witness testimony with a financial investor in ITFederal’s parent company American Commonwealth Regional Center (ACRC). Quincy Zhao testified that he invested $100,000 in ACRC due to its economic development plans related to the EB-5 Visa Program. The program, as previously noted, encourages foreign nationals investment in economic development in the U.S. in exchange for green cards for investor’s families. Zhao explained that wealthy investors from the four primary nations invested in the program, China, Vietnam, India, and Korea (he did not note a north or south), among others, often used the program to educate their children in America’s school system, particularly at the higher educational levels. Zhao noted that eventually Front Royal-Warren County were ruled ineligible to qualify for the EB-5 Visa Program, creating issues with ACRC and ITFederal being able to fund the project. The EB-5 Visa funding was believed still on the table when Goodlatte made his initial assertions to the EDA board about the viability of ITFederal to be a major job creator for this community.
Former County and EDA attorney Blair Mitchell was the defense’s second witness, first of two successive by remote hook up. Mitchell, Dan Whittens predecessor, was queried on his knowledge of difficulties in marketing redevelopment of the Avtex property as a developmentally limited, federal Superfund environmental reclamation project, compared to other EDA industrial and commercial properties. Having retired in April 2016, he was also questioned on his knowledge of McDonald’s work as EDA executive director and the EDA’s recruiting of ITFederal as the first commercial development project at the Avtex site.
In response to a question about whether McDonald or anyone with ITFederal had qualified the NRC $140-million contract as an IDIQ (Indefinite Delivery Indefinite Quantity) federal contract, Mitchell replied, “No”. As plaintiff counsel has pointed out the IDIQ contract simply qualifies a company to bid on future federal contracts, guaranteeing nothing. In Tran’s second deposition video, asked about ACRC’s actual financial benefit from the $140 million NRC IDIQ contract, Tran replied $5,000. However, defense counsel has pointed to notations of “IDIQ” in some documents related to the ITFederal proposal to the EDA on Avtex Lot 6.
The defense’s second remote hook-up witness was James I. Marasco. After reviewing records of the EDA between 2014-17/18, from his home base in Rochester, New York, Marasco supported the defense contention that during that time period the EDA had very poor financial oversight and safeguards in place to prevent the type of financial misdeeds McDonald has been accused of. Marasco’s particular field of expertise is forensic auditing, he noted during direct examination.
Before dismissing the jury shortly after 5 p.m., Judge Albertson told them to expect to be in court later on Tuesday, to 6 p.m. or longer, despite the fact the case is still proceeding ahead of schedule. Due to a trip out of state for a real estate closing, final plaintiff witness and former EDA board member Ron Llewellyn is likely to open testimony at the trial on Tuesday prior to the defense calling its last series of witnesses, including defendant Truc “Curt” Tran. Defense counsel Melus has pointed out to the jury his client is not running away from questions about his role in the aborted ITFederal project at Avtex, as McDonald did in invoking her 5th Amendment right not to respond to questions at risk of self-incrimination during earlier testimony as a plaintiff witness.
First day of $11-million EDA vs. ‘Curt’ Tran civil liability trial concludes
Following opening arguments and the start of the plaintiff’s case, including presentation of its paper trail of nearly 50 Exhibits, we counted 48, it contends will illustrate Truc “Curt” Tran was not an unwitting but active accomplice of former “Warren Economic Development Authority” Executive Director Jennifer McDonald in acquiring a total of $11,913,308 in EDA loans and payments under false pretenses, a Warren County Circuit Court civil case jury was released for the weekend at 4:23 p.m. Friday afternoon, July 22. Attorneys, the media, and a few observers followed the jury out of the courtroom and courthouse two minutes later.
The evidentiary portion of the plaintiff’s case, which included its first three witnesses, hit a snag when lead EDA attorney Cullen Seltzer announced the plaintiff’s next evidence, a video of portions of a deposition interview of defendant “Curt” Tran. Defense counsel Gregory Melus objected to the introduction of that evidence. After the jury was sent out of the courtroom, Melus told the court he had not had time to review the video, having only seen a transcript of those sections of the deposition of Tran by plaintiff counsel. He also objected to the video being introduced, as opposed to the text of the deposition which the plaintiff had originally sent him.
After hearing from both sides, Judge Bruce D. Albertson overruled the defense objection to introduction of the video, but offered to recess the trial to Monday to allow Tran’s attorney to review the estimated hour-long video. Subsequent discussion with counsel indicated the plaintiff may complete presentation of its case Monday. Asked by the court if he was able to open his case at some point Monday, could he complete it by Wednesday, Melus replied in the affirmative. With that positive time-frame looming, if possibly with some longer days to achieve it early in the week, Judge Albertson allowed the perhaps unexpectedly early adjournment on the trials opening day. With the jury dismissed with instructions to avoid discussion, media or social media accounts of the case, and no further matters for consideration by the attorneys, court was recessed at 4:25 p.m. until 9 a.m. Monday.
Prior to that adjournment, in addition to introduction of its paper trail, EDA attorneys called three witnesses. They were in order of appearance, former Warren County and EDA attorney Dan Whitten, Virginia Economic Development Partnership (VEDP) Assistant Director of Accounts Solutions Debbie Melvin, and Jennifer McDonald. Whitten was on the stand for over three hours, 1-hour-38-minutes on direct, and 1-hour-43-minutes on cross examination as counsel for both sides attempted to paint their contrasting evidentiary “roadmaps” of the case.
And as in the three earlier EDA civil liability trials this month, those contrasting “roadmaps”, or theories of the case, revolve around whether defendants were, pick one:
1 – Like the EDA itself, lied to and taken in by McDonald misrepresentations, and victimized themselves due to the EDA’s inability to provide adequate oversight of the alleged criminal actions of its executive director, or:
2 – Were willing participants in individual portions of the series of schemes McDonald is alleged to have hatched between 2014 and 2018 to defraud the EDA out of as much as $21 million dollars in assets to her own, and the benefit of others willing to provide needed “outside” the EDA co-conspirators.
The base compensatory claim of $11.9-plus million against Tran and his ITFederal LLC company is the largest in the EDA’s series of civil liability cases; and Tran has also filed a counterclaim for damages from a lack of EDA oversight of their former executive director. That former director McDonald made an out-of-court “no-fault” settlement for about $9 million in largely real estate assets in the EDA civil claim case against her in the wake of her bankruptcy filing. The only other million-dollar-plus jury award came last week when Donald Poe and his Earthright Energy Solar (ERE) were found liable for a base compensatory claim of $945,000, coupled with combined punitive damages against the two defendants totaling about another $300,000. All attorneys in the earlier civil trial cases have indicated they will file motions to overturn the verdicts based on a contention of inefficient evidence to convict.
Testimony by former EDA and County counsel Dan Whitten in the plaintiff’s case Friday noted former U.S. Sixth District of Virginia Congressman Robert Goodlatte’s championing of Tran and ITFederal as an economic development opportunity here at the former Avtex Superfund environmental remediation site. Whitten testified that both McDonald and Goodlatte presented Tran as a successful Northern Virginia businessman, with a $140-million federal government contract with the Nuclear Regulatory Commission as the basis for his planned Data Center development based out of a 28,000 square foot building on a 30-acre parcel at the Avtex/Royal Phoenix Business Park. However, it turned out that federal contract was an “IDIQ” (Indefinite Demand Indefinite Quantity) that essentially puts one in a position to bid on coming government contracts, rather than any guarantee of a contract.
The Goodlatte-championed ITFederal project also suffered financially when it didn’t qualify as an EB-5 Visa project. Whitten noted the EB-5 program was utilized nationally to encourage foreign investment in the millions in local economic development projects in the U.S. in return for “green cards” and family access to U.S. citizenship. Not testified to was the fact that the program has a rather notorious reputation for not usually realizing exactly what was promised in the way of financial support at the outset.
Whitten testified that Goodlatte had suggested the $10-million loan to ITFederal and Tran to illustrate to the media and public a working cooperative relationship between a local municipal EDA and the private sector. Whitten said that Goodlatte even said that Tran didn’t really “need” the loan, but that it would be a good public relations effort. Whitten testified that the EDA had anticipated that the loan would be short-term as more of a public relations effort, than an actual business loan. That helped explain the EDA board’s acceptance of McDonald’s representation that Tran was going to be an “anonymous investor” to the tune of $8 million in a planned Criminal Justice Academy project.
Responding to a question, Whitten also said Tran had never come to an EDA Board of Directors meeting during the ITFederal recruitment, proposal, loan acquisition, and planning process. In fact, he said he, as EDA counsel, had never previously met Tran.
McDonald was on the stand a rather brief time compared to her previous EDA case appearances, three minutes for direct, and two minutes for cross examination. Asked about her interactions with Tran, and a false claim of VEDP grants for the ITFederal project at Avtex by EDA counsel, McDonald invoked her 5th Amendment right not respond at risk of self-incrimination a total of eight times. She added two 5th Amendment replies to cross examination questions, before defense attorney Melus cut his questioning off.
Plaintiff second witness Debbie Melvin testified that after one meeting with Tran in 2016, the Virginia Economic Development Partnership never received follow-up information sought from Tran about his company to verify its eligibility for a Virginia Jobs Investment Program grant, and that VEDP never authorized any grant funding for the ITFederal Avtex project or any Tran project in Warren County. Earlier Whitten testified that the EDA didn’t find out that paperwork indicating that grant was achieved had been forged, apparently by McDonald, until the EDA financial scandal investigation was underway in 2018-19.
Lambert found liable to EDA for $183,562 in compensatory and punitive damages
After hearing an hour-and-45 minutes of direct and cross-examination of defendant William Lambert, as well as two hours of combined closing arguments by plaintiff and defense counsel Wednesday, July 20, a seven-person Warren County Circuit Court civil case jury took less than an hour, 45 minutes to be precise, to reach a verdict in Lambert’s civil liability case related to the “Warren Economic Development Authority” (EDA, WC EDA, FR-WC EDA) financial scandal.
That verdict was for the plaintiff EDA on all five claims of Fraud, Conversion, Conspiracy, Unjust Enrichment, and Ultra Vires; the latter, as regular readers now know after three EDA civil liability trials this month, a legal term for a public or business official overstepping their legal authority. The EDA was seeking $345,000 in compensatory damages, the total amount moved out of an EDA credit line account by former EDA Executive Director Jennifer McDonald in a 2014-15 home purchase and sale in which Lambert acted as a straw man in the purchase and sale of the 400 Craig Drive, Stephens City parcel. Two past EDA officials, former Administrative Assistant Gretchen Henderson and past board member Ron Llewellyn, both testified that there was no record of and no vote by the EDA Board of Directors to approve EDA involvement in the Stephens City home sale.
However, the jury awarded the EDA only $11,062.49 in compensatory damages. That was the total amount of three payments made directly to Lambert during the August 2014 to February 2015 purchase and resale of the Stephens City property done in his name as the initial purchaser and then owner-seller. Plaintiff attorney Cullen Seltzer pointed out that that purchase was made in Lambert’s name in 2014 for $320,000 and sold six months later for $270,000, a $50,000 loss.
“Who doesn’t care about a $50,000 loss in six months,” Seltzer asked rhetorically in closing arguments, suggesting an answer to the jury – someone consciously involved in a fraudulent transaction. During his testimony beginning shortly after 9:00 a.m. Wednesday morning, Lambert said his then-girlfriend, Kathy Butler, Jennifer McDonald’s sister, brought the proposition on the use of his name in her sister’s home sale transaction to him as an effort by McDonald to help an old college friend, Michele Bower, and her husband, sell a home she and her husband were “saddled with” after purchasing a home in Rockland in Warren County.
Lambert denied any knowledge that something untoward might be transpiring with McDonald illegally accessing EDA assets. However, as juries have been in the two earlier cases this month against defendants April Petty and Donald Poe, this jury appears to have found the paper trail presented by the plaintiff counsel convincing enough for a finding of liability. And with that finding, the jury imposed punitive damages of $172,500, particular to the claim of statutory conspiracy.
Following Judge Bruce D. Albertsons’ polling of the jury to determine a unanimous consensus and their dismissal by the court with thanks for their two days of attention and work, defense counsel Philip Griffin II told the court he would file a motion to set aside the verdict, particularly as to the punitive claim of statutory conspiracy and fraud. Griffin said he felt there had been no hard evidence presented indicating defendant’s actions related to “ill will, hatred, or spite,” as stated in the statute.
In fact, speaking to the media outside the courtroom, Griffin pointed to his client, noting he had previously had virtually no relationship with the EDA other than cutting some trees down on properties for them. During his time on the stand, Lambert noted one of his jobs was as a “logger.”
As he has in the earlier EDA civil liability trials, Judge Albertson set a time frame for motions related to setting the verdict aside. This one was for a 30/30/10-day turnaround, with 30 days for the defense motion filing, 30 days for a plaintiff response, and 10 days for filing of any additional material.
And next comes jury selection Thursday in the EDA versus Truc “Curt” Tran and ITFederal case, with that civil liability trial involving a compensatory claim of around $9 million slated to begin Friday morning, July 22, and continue through the following week.