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Op-Ed: County, EDA officials cited for failed oversight – why not the Town?

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The status of the ITFederal project and the $10 million loan that facilitated it is likely to be under increasing scrutiny by EDA civil attorneys contending that loan was acquired under false pretenses. Royal Examiner File Photos/Roger Bianchini

 

Many have wondered when or even if prosecutors and state investigators guiding the Warren County Special Grand Jury’s look into criminality tied to the Economic Development Authority financial fraud investigation would expand its focus beyond a tightly knit circle surrounding former EDA Executive Director Jennifer McDonald.

On Tuesday, September 24, they got an answer, if not precisely the one many citizens critical of the political and economic status quo here were hoping for.

That answer was a total of 42 indictments, three each against 14 new players, including the entire elected Warren County Board of Supervisors, the top county administrative official and recently departed County and EDA attorney, as well as a mix of former and sitting EDA Board of Director members.


The disappointment for some was that those indictments were all misdemeanor charges related to an absence of due diligent oversight of EDA affairs, specifically over the last four months of 2018 regarding the continued administrative authority of Jennifer McDonald. (See linked story below)

The bookings at the Magistrate’s Office of the Rappahannock-Shenandoah-Warren County Regional Jail (RSW Jail) didn’t even generate the orange jail jumpsuit mug shots many social media denizens would have likely framed for posterity.

No mug shots today – County and EDA officials charged with misdemeanor failures of due diligence in the conduct of their office were not booked into the jail, as any defendant in similar circumstances released on their own recognizance would not be RSW Superintendent Gilkison has explained.

 

But while County officials rightfully face scrutiny for their failed due diligence, the Town of Front Royal governmental apparatus has thus far escaped unscathed, at least regarding criminal liability and even the level of public criticism aimed its way.

No Front Royal Town official has yet been indicted for criminal negligence regarding financial oversight of EDA operations; and to our knowledge there is no “recall them all” petition being circulated against the Town Council.

Why?

Three years ago, it was an overwhelming majority of Council that threw a defensive and protective shield around both McDonald and two of the more implausible projects she was instrumental in bringing forward.

This mid-2016 photo perhaps shows varying levels of disinterest expressed by all of Bébhinn Egger’s Town Council colleagues over her claims about ITFederal at the time.

 

In fact, those two projects, ITFederal and Workforce Housing, account for nearly $11 million, $10 million and $650,000 respectively, of the $21 million in EDA assets alleged to have been either misdirected by McDonald or moved under false pretenses during her executive oversight.

But some Town officials have claimed Front Royal has nothing to do with EDA operations since the County took over the Town’s portion of the EDA’s annual operational funding in 2012.

But as Royal Examiner has reported previously, that notion is questionable at best with much of the EDA’s work being done on behalf of the Town on projects inside the town limits. ITFederal, Workforce Housing, the Afton Inn and new police headquarters construction project come to mind.

If that wasn’t the case how do Town officials explain filing suit against the EDA to recover as much as $15 million in Town assets they contend were misdirected, lost or acquired under false pretenses? Do they think McDonald snuck into a secret town vault to pick the lock or hacked into Town bank accounts and sent their $15 million to a secret offshore location?

No, if experience tells us anything chances are that if McDonald had asked the Town Council for $15 million they would have just given it to her with a pat on the back.

In fact, that’s exactly what Council did in 2015 when McDonald came and asked for a $10 million “bridge” loan to help prop up the EDA’s case with First Bank & Trust to finance a $10 million loan to ITFederal through the EDA. Council was even kind enough to extend that initial one-month loan taken out of an investment account generating nearly $4,000 of monthly interest for two additional months without fee compensation for lost interest revenue beyond the first month.

It seems very possible that without that three-month Town handover of the desired ITFederal loan amount the bank loan for ITFederal would never have been achieved, reducing the EDA’s claimed losses by almost half.

But when Councilwoman Bébhinn Egger warned her colleagues that ITFederal did not appear to be what it was purported to be financially or from a business standpoint by McDonald, Congressman Robert Goodlatte and the company’s CEO Truc “Curt” Tran the reaction was not one of cautious due diligent verification.

Rather, the unanimous consensus of Egger’s colleagues was to either ignore or berate her, not to mention your then newly created online news source, for telling them things they didn’t want to hear – even if as it turned out, they were verifiably true at the time – as in no $140 million government contract basis upon which to create 600 high paying tech industry jobs as part of a $40 million ITFederal investment in this community.

From left on Nov. 28, 2016, Councilmen John Connolly, Hollis Tharpe, Bébhinn Egger, Gene Tewalt, Bret Hrbek, Mayor Tim Darr, and Jacob Meza at far right, bid farewell to Town Manager Steve Burke, second from right. Only one of this group, you know who she is, performed due diligent oversight of EDA affairs. It was a majority state of affairs that lasted on council for another year and a half.

Revisionist History?

The day after the County and EDA misfeasance and nonfeasance misdemeanor bookings the Town of Front Royal issued a pat-us-on-the-back press release in which Interim Mayor Matt Tederick lauded the town government’s role in launching the Virginia State Police investigation into EDA finances.

“Due to the watchful eyes of the Town Government, potential financial irregularities involving the EDA were discovered in the late spring and early summer of 2018. The Town Council swiftly turned their findings and suspicions over to the Virginia State Police, who in turn immediately commenced an investigation,” Tederick states, adding, “The citizens need to rest assured that the Front Royal Town Council will continue to pursue its lawsuit against the EDA and any others in order to hold those responsible for the Town’s losses accountable. The public’s continuing confidence in Town government is greatly appreciated and I might add, warranted.”

Pals – then EDA Executive Director Jennifer McDonald and private citizen Matt Tederick pose before start of Sept. 25, 2017 Town Council meeting. It was a meeting at which Council voted against a Board of Architectural Review recommendation to deny the EDA request to allow demolition of the Afton Inn to facilitate redevelopment at the site.

As far as ascertaining responsibility for any Town losses, both current and past councilmen and mayors over the past five years might begin by looking in the mirror.

As for “continued confidence”, as mentioned near the end of our story on a Council initiative to explore creation of its own EDA, if Tederick is referencing the work of town staff, as opposed to all but one of its elected officials (Egger) in recent years, he may be on to something.

After all, in June 2017 Town Police investigators began to develop suspicions that some reported criminal actions targeting the EDA offices and its then executive director had been staged from the inside.

And about a year later Town Finance Director B. J. Wilson did discover an eight-year history of over $291,000 in Town debt service overpayments to the EDA that finally set the process of EDA financial scrutiny in motion.

But that scrutiny was a long time coming, about 2-1/2 years after council was warned by one of its own that things appeared horribly amiss in some EDA projects. And the scrutiny of 2018 did not generate from any Town Council initiative targeting the EDA, but as noted above from staff discoveries while exploring Town finances that landed a “smoking gun” of precise evidence on Council’s lap.

It was Wilson, Town-contracted auditors and the Town Attorney who took the point in confronting McDonald, EDA Board Chairman Greg Drescher and EDA Attorney Dan Whitten over those debt service overpayments of nearly $300,000 on August 23, 2018. It was at that meeting during which the term “fraud” may have been first broached regarding EDA finances.

Greg Drescher and Jennifer McDonald appeared grumpy at times under questioning by Tom Sayre and Archie Fox at June 2017 joint work session on the EDA’s Workforce Housing Project.

 

That mid-2018 meeting between Town and EDA officials led to Drescher’s resignation as EDA board chairman the following day. It was also likely a driving factor in the County’s hiring, on behalf of the EDA, an investigative public accounting firm, Cherry Bekaert, to begin a probe into irregularities within EDA finances.

It was also a meeting that, as Tederick observed, led to the launching of a State Police investigation. But by that point, not to forward staff’s information on EDA financial irregularities to law enforcement for scrutiny might have eventually been seen as indictable as a more serious felony charge of complicity in a cover up of financial fraud.

As for that State Police investigation, one might contend it was begun a year earlier by the Front Royal Town Police. But that investigation was allowed to be shut down in 2017 at the request of EDA Board Chairman Drescher to allow, first the EDA board, then its executive director to control the investigation of alleged crimes targeting the EDA and its chief executive through a hired private investigator.

It was a request and decision that allowed the alleged EDA financial subterfuge, whatever its source, to go unchecked for an additional year and a half.

Accountability – where?

But beyond an honest self appraisal of its past complicity in throwing a protective shield up against scrutiny of EDA projects and its executive director’s assertions about them, should town officials be vigilant about past EDA activities that may have targeted more of its assets versus those of the County? – Certainly.

But why not continue the joint reform process the interim mayor and council propelled forward, rather than just withdraw from it? After all, new EDA Executive Director Doug Parsons has promised full cooperation in determining an accurate appraisal of the Town’s losses within those EDA losses financial fraud investigators have reported being misdirected through EDA operations over a number of years.

And we would suggest the interim mayor and council not continue a course of self-delusional praise and finger-pointing that tries to minimize the Town Council’s own long-term lapsed due diligence regarding EDA affairs it was directly involved in facilitating.

In mid-2016 Bret Hrbek, left, was Jennifer McDonald’s staunchest defender among many, when Bébhinn Egger, right, raised concerns about assertions about EDA projects, particularly ITFederal.

 

And speaking of that involvement, the media asked former EDA/County Attorney Whitten why the $10 million ITFederal loan the Town was so instrumental in helping achieve was included in the EDA civil litigation for recovery even though it is current on its rather lax terms.

“Because it was acquired under false pretenses,” Whitten replied following an EDA board meeting three months ago.

Whitten’s response echoed the above-referenced, ignored and even vilified warnings three years earlier that something appeared amiss in the EDA’s representations about ITFederal.

So “warranted continued confidence” may be a stretch, at least as it applies to elected Town officials over the past three to five years.

Nonetheless it appears Town officials may avoid the embarrassment of criminal charges, not to mention a high degree of public anger, for their long pattern of failed due diligence regarding oversight in their dealings with the EDA.

Why?

The answer we believe is two pronged legally: first, a statue of limitations on misdemeanor offenses; and second what we would contend was an unnecessary relinquishment of the Town’s authority to appoint two of the seven EDA board members based on the EDA’s fair funding formula split on Town-County investment in EDA operations.

As for a potential third prong in the Town’s escaping the extreme level of public scrutiny and recall petitioning aimed the County’s way, a primary social media purveyor of that public anger has not threatened to sue the Town for millions of dollars, so a public shaming there may have less interest.

But back on the legal side, note that the three indictments filed on the 14 County and EDA officials on September 20 for which they were booked on September 24 and 25, all involved EDA transactions between September and December 2018. Those charges involve only $309,000 of the allegedly misdirected or embezzled $21.3 million being sought for recovery by the EDA in civil litigation.

What about liability for a lack of due diligent oversight during the movement of the other $20.99 million, particularly that $10 million ITFederal loan the EDA now claims was acquired under false pretenses?

There is likely to be none – because misfeasance, nonfeasance and even malfeasance in the conduct of public office are misdemeanor criminal offenses. And there is a one-year statute of limitations on misdemeanor offenses. Also in the September to December 2018 timeframe, the Front Royal Town Council did not have appointment authority of EDA board members.

That is because when the County assumed responsibility for the Town’s 34% portion of the EDA’s annual operating budget in 2012, the Town Council allowed its appointment authority of two of the seven EDA board members to be withdrawn.

Was it a necessary condition? – We would contend not.

Because that County assumption of full annual operational funding from the previous 66%-34% County-Town split was made as part of the long and ongoing negotiations on two fronts: double taxation of Town citizens on certain services provided countywide; and compensation to the Town for its extension of central water-sewer utilities into the North Commercial-Industrial Corridor outside the town limits without annexation.

North Corridor commercial development was enabled by the Town’s extension of central water sewer outside the town limits without annexation. Many believe the Town continues to suffer from lost commercial tax revenue after a judicial striking down of agreed upon PILOT fees tied to utility bills as the Town’s major compensation for that lost tax revenue. Photo Roger Bianchini/Courtesy CassAviation

So if the County is essentially saying either, “We are going to stop the double taxation of Town citizens for countywide services” or “We owe you more compensation for your lost commercial tax revenue due in large part to a Town-County North Corridor compensation arrangement struck down by a Circuit Court judge, and this is part of how we’ll do it,” why would the Town Council agree to withdraw or reduce its past oversight of EDA operations it remained deeply involved in?

Whatever the reason, in 2012 the Town Council did agree to relinquish its EDA board appointment authority, and thus direct supervisory authority over EDA operations. In fact, that relinquishment is referenced in motions filings surrounding the EDA’s claim of sovereign immunity in response to the Town’s $15 million civil action against it.

“That the Town of Front Royal voluntarily waived its right to control the EDA, contrary to the statutory mandate, does not create an actionable fiduciary duty to (the Town’s) benefit,” EDA attorneys wrote in reply to the Town’s opposition filing on the EDA claim of institutional sovereign immunity.

However those arguments play out at a November 8 motions hearing and whether that “voluntary” waiver of its EDA oversight right was a bad decision or not, it has paid off for Town officials in an unexpected way.

Because by allowing the County to assume full EDA board appointment authority, that 2012 Council may have saved its 2015 to 2018 successors from legal liability for the absence of Council’s own due diligence in its oversight of its EDA affairs. And while like the County and EDA officials who were indicted, that misdemeanor liability would have only extended back a year and involve an estimated $309,000, it was a long-term failing the Town itself alleges led to the misdirection of up to $15 million in Town assets.

Regardless, unlike County and EDA officials, in the absence of direct authority to limit the EDA executive director’s conduct of her office over those last four months of 2018, the Front Royal Town Council appears poised to skate home free of any legal liability for its own lapses of judgment regarding its business dealings with the EDA in recent years.

And without “smoking gun” evidence of payoffs to look the other way or shared profiteering from the alleged EDA financial fraud under legal and civil scrutiny, it would appear the worst offense those not indicted for illegally moving or receiving EDA assets can be charged with is failed due diligent oversight, and that within that one-year misdemeanor statute of limitations. And for the above cited reasons it would appear that such charges could only come on the County and EDA sides of the equation, as it did on September 24.

So more than any proactive due diligence by elected Town officials generating “continued confidence”, legally on the failed municipal oversight front you might say it just pays to be lucky timing wise; not to mention have a voluntary withdrawal of EDA board appointment authority in your pocket. I guess you could also say that County generated initiative to acquire additional control of EDA board appointments for its added operational financial contribution kind of backfired long term – because misery loves company, right?

Criminal and non-criminal dereliction of public duty: Where might they apply in the EDA financial scandal?

Grand Jury indicts 14 County and EDA officials for lack of EDA oversight

Council divided on move toward second, Town-controlled EDA

 

Defense attorneys move to quash grand jury misdemeanor indictments

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The Warren County EDA faces 2022 with optimism while bidding farewell to one board member and seeking administrative staff replacements

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After an hour-and-a-half closed session to discuss a variety of topics, including disposition of three cited properties, the civil litigation against Jennifer McDonald, refinancing of a First Bank & Trust loan, and personnel matters involving two EDA Board members, the Warren County Economic Development Authority received Executive, Finance, and Asset Committee reports; acknowledgment of the County Administrator’s Report included in the packet; and several old and new business matters.

That “Old Business” included updates on the development of the EDA Strategic Plan and Search Committee work in finding permanent replacements for departed Executive Director Doug Parsons and Administrative Assistant Gretchen Henderson. The 9 a.m. Friday morning (Jan. 14) meeting concluded at 11:15 a.m. after a review of potential reallocation of Budget Line Items in its lone “New Business” topic.

A head’s up on one of the closed session personnel matters may have been given in open session when during his Executive Committee report, EDA Board Chairman Jeff Browne acknowledged the pending departure of Tom Pattison at the end of the month as his four-year term comes to a close. Pattison’s retirement leaves the EDA Board of Directors two members short. It was observed that is especially problematic with the board chairman, among other members, juggling what would normally be staff responsibilities to help fill the gap as replacements for departed Executive Director Doug Parsons and Administrative Assistant Gretchen Henderson are sought.

County Administrator Ed Daley joined Browne and his board in bidding Pattison a fond farewell and thanks for his work in helping the realigned EDA Board get adjusted to the evolving, post-financial scandal landscape they were entering in early to mid-2019. Daley was part of that board as chairman, along with current members Browne and Greg Harold. Daley pointed out Pattison had arrived on the board just a few months prior to the influx of new members during the post-financial scandal turnover.


Meeting virtually under state guidelines to combat exploding Omicron COVID variant numbers, WC EDA Board Chairman Jeff Browne hosted virtually against an impressive graphic backdrop. The EDA board and county administrator bid farewell to retiring member Tom Pattison, below, leaving at month’s end as his four-year term expires. Royal Examiner Photos by Roger Bianchini

“He was a terrific asset … you’ll be sorely missed. We appreciate everything you’ve done on our behalf and the County. So, thank you,” Browne said of Pattison’s role in getting the new board on track over the past 3-1/2 years in the wake of questions about EDA operations and contractual arrangements under the leadership of former Executive Director Jennifer McDonald.

“Thank you for your kind comments,” Pattison responded, adding, “And I’d like to say that I’ve certainly been pleased to serve with such a fine board, conscientious and well-qualified, as well as the administration when we had (Doug) Parsons and others. I’ve also enjoyed working with the County and County Administration, and also with Sharon and her expertise and advice over the years (EDA attorney Sharon Pandak). So, I leave thinking the board is in good hands.”

However, Pattison wasn’t resting on his laurels, noting that he had some comments on staff recruiting strategies when the Search Committee Update portion of the meeting arrived under Old Business. Currently, the EDA is functioning with county staff filling the two EDA administrative staff positions on a part-time basis as permanent replacements are being sought after Parsons and Henderson left for other career opportunities, Parsons with the Fauquier County EDA and Henderson with the Northwest Regional Commission.

And following Daley’s acknowledgment of his submission of the County Administrator’s Report and Browne’s noting that once again there was no Town Manager’s Report, the Search Committee Update discussion was broached. Pattison told his colleagues that the county human resources department had reported that there have been “a paucity of applications” for the executive director’s position in particular. Discussion indicated one factor could be confusion over who the director would be answerable to.

Later during the discussion County Administrator Daley noted that the initial advertisement for the position was drawn up while the County and Town were still talking about a joint effort in reorganizing the half-century-old joint County-Town EDA. But as the subsequent town council decision, under the guidance of then-Interim Town Manager Matt Tederick, to litigate against the EDA for real or imagined losses, as opposed to engaging in offered “good faith negotiations” to establish exactly what was owed to whom from the financial scandal; not to mention the continued absence of a monthly staff report on Town efforts toward economic development, that is obviously no longer the case.

Pattison suggested removing confusion in that regard, along with new, broader sources in which to advertise the vacant positions moving forward. “One question for the person looking at it, is ‘exactly who am I going to answer to?’ I think it should be clear that it’s going to be to Ed (County Administrator Daley) and the board of supervisors … and it doesn’t make sense that they’d have to answer to the Front Royal EDA personnel.”

Daley concurred, telling the EDA board, “… that will be clarified that we will work with their (the Town) EDA, but will not be making reports to the town council or their EDA or anything like that.”

Pattison also suggested the list of qualifications be narrowed somewhat, with an emphasis on the marketing of properties, a current focus of the EDA in the wake of the McDonald executive tenure. That is due to some questionable real estate moves dating to McDonald’s executive directorship when it is suggested real estate transactions may have been used to cloak alleged misdirection of EDA assets.

Click here for the WC EDA press release “Summary of the WC EDA meeting of January 14” for additional information.

 

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Did Town Council’s December 1 ‘Special Closed Meeting’ violate multiple FOIA laws?

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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.

File photos during a previous Front Royal Town Council Closed Session in Town Hall. On December 1, 2021, council could not use the second floor meeting room due to a previously scheduled planning commission meeting, so moved to the first-floor Finance Dpt. section of the building, which was totally locked to public access for at least a portion of that meeting. Royal Examiner File Photos by Roger Bianchini

“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.

Photo of minutes of Dec. 1 Town Council ‘Special Closed Meeting’ approved by council on Dec. 13. The only open portions of the meeting were the motions to go into closed session, and coming out certifying that only topics cited in first motion were discussed behind closed doors. But what active litigation, as Royal Examiner has been told it was, involving what ‘former employee’ was discussed? The Town will not specify, despite FOIA law precedents pointing toward more than vague litigation references for filed court cases. Note, the meeting time was announced the previous day as 6:30 p.m.

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?

File photos from a council meeting and work session before Council Clerk Jennifer Berry, above right’s, position was eliminated by downsizing of town staff during interim town managership of Matt Tederick, and prior to her filing a federal lawsuit citing alleged sexual harassment by former councilman and vice-mayor Bill Sealock. Berry also alleged then Councilman Chris Holloway, above left, among others, attempted to get her to withdraw an internal complaint about the alleged behavior. According to her suit’s timeline it appeared the full council was aware of Berry’s allegations against the vice mayor by the time of these January 2020 meetings.

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.

Town Manager Steven Hicks, center, holds council’s attention at an earlier 2021 work session in town hall’s second-floor meeting room where ‘To lock or not to lock the outside access doors’ was not the Shakespearean question at hand.

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.

Could answers to questions about the subject and purpose of town council’s Dec. 1 ‘Special Closed Meeting’ be mandated by a local judge? Perhaps, though it appears the Va. Supreme Court has already weighed in on the issue regarding filed litigation requiring more “subject” and “purpose” specificity than unfiled to convene into closed session.

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EDA in Focus

Warren County EDA reaches bank agreement on McDonald parcel, moves C-CAP rental forward among other actions in final meeting of 2021

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The Board of Directors of the Front Royal and Warren County Economic Development Authority (EDA) held the combined November and December meeting via Zoom. All Board members attended the meeting.

The Board adopted two resolutions. One resolution to approve C-CAP using Suite C located at the EDA office building to store food for distribution. The use of Suite C is at no cost to the organization while it transitions to a lease in Suite B and C-CAP will provide evidence of an insurance policy to cover the use of Suite C. The EDA and C-CAP will negotiate the terms of a lease on Suite B and possibly Suite C at the Kendrick office location at an agreed rental rate.

The second resolution authorizes the EDA Chair and Treasurer to finalize details of an agreement with Atlantic Union Bank where it gives up its claim in the Jennifer McDonald bankruptcy and the EDA will release its claim on the property formerly owned by “Little Rugratz” on Virginia Avenue. The existing bank loan is more than the value of the property and the release of the EDA claim allows the bank to sell the property. In return, by the bank releasing its claim in the bankruptcy, the EDA can recover a higher percentage of the recovery from the McDonald bankruptcy and save money in attorneys’ fees.

The Board is working with Public Works to address the maintenance issues at the Kendrick Lane building including HVAC repairs and installation of water shut-off valves.


The EDA and County are working on soliciting bids for appraising all the EDA properties. The first priority is the Baugh Drive building.

Chair Jeff Browne updated the board on Nature’s Touch and the VDOT grant. Scott Jenkins stated all the marketing material for the Commonwealth is updated and was approved by VEDP (Virginia Economic Development Partnership).

Greg Harold presented the final draft of three Standard Operating Procedures (SOP) that will be used as guides for EDA and prospective purchasers of EDA property. He stated the documents were not “static”, but are “living” documents that will be modified as needed. The three SOPs approved are Letters of Intent, Contract Management, and Property Disposition Due Diligence. The documents will be posted on the website by December 15.

The EDA and Warren County are working on a Memorandum of Understanding (MOU) to govern the transition of EDA’s staff moving to the County payroll and EDA’s role in future economic development in the county. One change beginning immediately is the County will permanently take over receiving and coding EDA bills prior to the EDA Chair and Treasurer approving the expenses.

The EDA Board approved the meeting schedule for 2022 and future meetings will be in person. The next EDA meeting will be on Friday, January 14th at 9 a.m. The location will be posted on the website as well as the remaining dates for 2022.

(From an EDA Press Release of December 5th)

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Crime/Court

Little civil consequence of more criminal prosecution delays in EDA case

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Contacted about the new dates in late 2022 of trials in the now federal prosecutor-handled criminal indictments against former Front Royal-Warren County Economic Development Authority (EDA) Executive Director Jennifer McDonald, current EDA Board of Directors Chairman Jeff Browne said while it has little, if any, impact on the EDA’s civil litigation seeking recovery of assets, he understands public frustration from continued delays on the criminal side of the EDA financial scandal.

“I don’t believe the delay in the criminal case impacts our civil case. We have no control over the criminal case, but it is frustrating that Warren County residents must wait so long for justice to be served. I understand the reasons for the delay, but it still is frustrating,” Browne told Royal Examiner.

The reason for the delay continues to be, as it has been from the outset for the most part, the volume of evidentiary documentation in the case, as well as the introduction of new attorneys into the legal equation who must absorb the information in that documentation estimated at well over a million pages.

File photo of Jennifer McDonald booked in August 2019 during state criminal prosecution process. That was her second arrest related to the local/state criminal investigation of EDA finances during her executive director leadership of the EDA. Royal Examiner File Photos


Most recently, federal Judge Elizabeth Dillon granted McDonald’s newest attorney, court-appointed Andrea Harris’s request for a continuance of McDonald’s criminal trials slated for the first week of this month. The federal prosecutor from the Western District of Virginia did not object to the continuance. Consequently, new trial dates between October 11 and November 18, 2022, are now on federal docket. Since the delay came at the request of the defense, speedy trial guidelines will not come into play.

As Royal Examiner previously reported, on August 31 McDonald was re-arrested on a 34-count indictment handed down by the Western District of Virginia Federal Prosecutor’s Office in Harrisonburg.

On April 16, 2019, FBI and Va. State Police jointly seized material from EDA offices, including the former executive director’s office computer which had been locked down from outside access since Dec. 20, 2018.

Of those 34 counts, 16 were for money laundering, 10 for bank fraud, 7 for wire fraud, and 1 count of aggravated identity theft regarding someone identified as “T.T.” – our best guess representing ITFederal principal Truc “Curt” Tran. The 40-paragraph True Bill elaborating on the charges to a Harrisonburg Grand Jury is dated August 25, and signed by then-Acting U.S. Attorney Daniel P. Bubar. McDonald was once again released on bond.

Dan Whitten, left, Greg Drescher, back to camera, former county attorney and EDA Board chairman respectively, as well as Tim Grant, seated at computer, lock down McDonald’s office and computer as a potential crime scene in the wake of her Dec. 20, 2018, emailed resignation in the wake of mounting closed session scrutiny by her board. Below, the same office following the April 16, 2019, FBI-led seizure of materials from the EDA offices.

The charges and outline of the case in support of them echo earlier criminal indictments filed at the state level before the State Special Prosecutor’s Office in Harrisonburg turned the case over to federal authorities in late 2019. The state special prosecutor had dropped the indictments it had filed to avoid speedy trial issues due to the volume of evidentiary material – estimated at 800,000 to over a million pages at the time. Failure to meet speedy trial deadlines could have led to defense motions for dismissal of charges on the criminal side of the EDA financial scandal case.

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EDA in Focus

EDA emerges from lengthy Closed Session to consider assistance to Angel Tree Program and C-CAP winter food storage

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(Editor’s note: The Salvation Army notified Royal Examiner that their holiday toy collection/distribution program is known as Angel Tree, as opposed to the Marine Corps Toys for Tots effort. We in turn notified the EDA Board Chairman and received permission to make the correction to this press release.)

The EDA Board of Directors met today for their regular monthly meeting. All board members were present along with legal counsel. The Board went into closed session for approximately two and half hours to discuss transition, personnel, loan restructure, and disposition of property. The Board returned to open session at approximately 11:30.

The Board discussed the transition and how the county and the EDA were working well together. Taryn Logan, Assistant County Administrator, is also the Interim EDA Executive Director working on new prospects and marketing of EDA property. Ed Daley, County Administrator will work with the EDA on current projects. The County and EDA are actively recruiting a new Executive Director and administrative assistant. Jeff Browne thanked board members for stepping up to keep the EDA operation running smoothly.

Jeff Browne discussed the use of a portion the EDA administrative building through December 22nd for the Salvation Army Angel Tree holiday toy collection and distribution campaign. The EDA will also assist C-CAP in finding proper storage for needed food through the winter.


Jeff Browne and Scott Jenkins discussed the use of interns beginning in January to assist with EDA research and future projects. Scott Jenkins reviewed the “job description”. Taryn Logan stated the use of interns by the county has been a very successful venture in the past. Ed Daley, County Administrator, also supported the proposed program.

Marjorie Martin (Jorie) will assume the duties to update the website working with Queen Consulting. Meeting dates, and updated site information will posted.

The Board is working with vendors to clean the air conditioning ducts in the EDA administration building.

Next EDA Board Meeting: Combined meeting for November and December, December 3, 2021: The meeting will be held via zoom at 9:00 AM

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EDA in Focus

County Supervisors change November meeting date – stay mum on Closed Session EDA litigation discussion

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The only open session action taking by the Warren County Board of Supervisors at a Special Meeting of Tuesday, October 26, was authorization to change the date of a November Supervisors meeting from the 16th to the 18th. That item was a late addition to the agenda made and acted on prior to a scheduled closed session.

The bulk of the 5 p.m. meeting, about an hour-and-a-quarter, was taken up by a Closed/Executive Session to discuss Economic Development Authority litigation. As Royal Examiner readers know, that is an oft-behind closed doors topic over the last two-plus years in the wake of the $26-million to $62 million FR-WC EDA financial scandal that began unravelling in mid-2018. No announcement or action regarding that litigation was offered during the brief open session to adjournment shortly after 6:20 p.m.

As has been previously reported, the EDA financial scandal involves civil and criminal cases, the latter now handled at the federal level by the U.S. Attorney’s Office in the Western District of Virginia headquartered in Harrisonburg. Before criminal indictments were dropped by the Special Prosecutor at the state level due to speedy trial concerns surrounding the mountain of documented evidence, estimated at over a million pages, there were as many as 23 co-defendants alleged as co-conspirators of former EDA Executive Director Jennifer McDonald. The federal prosecutor launched action on August 31, filing a 34-count indictment against McDonald, including 16 counts of money laundering, 10 for bank fraud, 7 for wire fraud, and 1 count of aggravated identity theft regarding someone identified as “T.T.” (ITFederal principal Truc Tran perhaps?)

In related civil litigation, McDonald and the EDA reached an agreement in which $9-million-dollars of assets were ruled out of McDonald’s bankruptcy court filing as owed to the EDA, though without any admission of fault by McDonald. As part of that agreement the EDA recently announced assumption of ownership of McDonald Real Estate LLC MoveOn8’s undeveloped 41-acre Happy Creek parcel valued at over a million dollars.


The EDA and Town of Front Royal are also engaged in dueling civil countersuits initiated by the Town, claiming disputed lost assets related to the financial scandal. During the tenure of Interim Town Manager Matt Tederick, other than then-Mayor Eugene Tewalt, the town council chose to ignore EDA offers to sit down in a non-litigious, good faith effort to determine exactly what was owed to the Town related to the alleged misdirected EDA assets involved in Town and County capital improvement and economic development projects financed through the EDA. The Town has since initiated an effort to create its own unilateral Front Royal EDA (FREDA) operating independently of the over half-century-old Town-County EDA, which technically the Town is still a legal, if now silent, partner in.

That independent EDA effort has become a political hot potato in the coming Town Special Election to fill resigned member Jacob Meza’s seat. In recent years the County had fully funded EDA operational costs, with each municipality covering its own debt service related to EDA financing of projects. Independent conservative council candidate Bruce Rappaport has made the unilateral Front Royal EDA a major target of his campaign, citing it as a waste of town taxpayer money and destructive wrench in the cog of Town-County relations.

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