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Town closed session personnel discussion motions may violate FOIA law on ‘subject’ disclosure

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Executive Director of the Virginia Freedom of Information (FOIA) Council Alan Gernhardt says his agency is of the opinion that the closed session motions related to personnel issues made by the Front Royal Town Council on January 27 and February 3, are legally challengeable by State FOIA statutes for full disclosure of the exempted purposes allowing that discussion to occur behind doors closed to the public. Those motions were read into the public record by Lori Cockrell and Jacob Meza, respectively, and apparently reflect language long used by the town council.

A check of Royal Examiner video of the January 27 and February 3 closed session motions verified that the personnel portions were read as printed on the agenda cover sheets: “I move that Council convene and go into Closed Meeting for the following purposes: … (other topics regarding pending legal or real estate transactions specified) “Discussion and consideration of assignment, appointment, promotion, performance, demotion, salaries, disciplining, or resignation of specific public officers, appointees, or employees of any public body, pursuant to Section 2.2-3711. A. 1. of the Code of Virginia.”

At issue for the FOIA Council is the vagueness of the reference to “employees of any public body”.

There was a FOIA and Ethics seminar at the Va. Inland Port on Dec. 9. It was attended by new members of the WC Board of Supervisors and EDA Board and staff, but no Town Council or staff. – Well, the EDA hosted it … Royal Examiner File Photos by Roger Bianchini


What attracted Royal Examiner’s attention to this wording was a closed session motion regarding personnel matters made by the Warren County Board of Supervisors on February 4. Following language identical to the Town motion regarding “the assignment, appointment, promotion, performance, demotion, salaries, and resignation of a specific public officer of the public body;” was added, “I further move that the discussion be limited to the Community Policy Management Team.”

The absence of that qualifying portion in the Town motions led us to call Director Gernhardt of the Virginia FOIA Council in Richmond. He explained that such motions have three essential requirements by FOIA law: to identify a subject; a purpose; and the State Code exemption allowing the public body discussion to take place outside the public purview, behind closed doors.

Gernhardt referenced State Code Section 2.2 – 3712 in support of a the FOIA Council contention that such a vague designation as “employees of any public body” does not do enough to satisfy identification of the “subject” of that personnel discussion.

While acknowledging that FOIA law allows excessive detail on specific personnel situations to be excluded to protect personnel interests and privacy, he referenced past Attorney General (AG) Opinions and case law to support the FOIA Council opinion that an excessively vague description of the personnel “subject” as worded in the Town of Front Royal motions do not comply with FOIA requirements to justify adjourning to closed session for the cited personnel discussion.

To litigate or not to litigate, that seems to be the question quite often lately.

The FOIA Council is an instructional and advisory body on FOIA law and parameters for state municipal and economic development officials, as well as a resource for the media and other citizens.

Its perspective on “subject” disclosure is explained on their website, regarding previous inquiries on similar situations in other jurisdictions.

“As previously opined by this office, a motion to convene a closed meeting must contain all three elements (subject, purpose, and citation) in order to comply with FOIA; a motion that lacks any of these elements is insufficient under the law. We have previously observed that there is often confusion in differentiating between the subject and the purpose of a closed meeting. Conceptually, it may be helpful to think of the subject as what the meeting is about, while the purpose is why the meeting is to be held.

“This office has previously opined that when identifying the subject of a closed meeting, the subject need not be so specific as to defeat the reason for going into closed session, but should at least provide the public with general information as to object of the discussion,” the FOIA Council states.

Look at it this way: acceptable “subject” disclosure could be the “Illegal Ancient Aliens Department”; acceptable purpose would be “the assignment, appointment, promotion, performance, demotion, salaries, and resignation” thereof; while acceptable withholding of information would be “allegations of alien slave trade trafficking within the Illegal Ancient Aliens Department”.

However, Town Attorney Doug Napier said many attorneys working employment or municipal law have a differing opinion on exactly where Virginia law, case histories and past AG’s opinions come down on the issue.

Town Attorney Doug Napier says FOIA law is a multi-dimensional minefield of potential litigation if you get it wrong.

“If a motion is worded in such a way as to give a person’s identity away, I’d say you not do it … It is a gray area of law and a balancing act – you want the public to know as much as possible, but if a personal identity is involved you must be careful, it’s tough,” Napier admitted, adding that were a departmental identity included that was a one-person department, naming the department would essentially identify the person. Then if that person was terminated the following day, the public perception would be that person “must have done something wrong”.

Napier noted that he had voluntarily “conflicted” out of advising the town council on the recent budget-related personnel terminations, noting, “I wanted to be taken out of the loop, I work with some of these people every day.” He said council contracted an attorney he did not name who “specializes in employment law – so I would assume these things were done by the book.”

That may depend on whose book was being read.

Contacted about the closed session motions, Interim Town Manager Matt Tederick said he believed they had always been worded that way, certainly since he came on board as interim mayor in late May 2019 following the resignation of Hollis Tharpe.

“No one is trying to do anything inappropriate – we’re trying to do things by the book,” he said, observing that the Town’s FOIA personnel discussion motion wording originated with Town Attorney Napier and predated recent, controversial personnel developments tied to his FY 2021 Town Budget proposal.

‘We’re trying to do things by the book,’ Interim Town Manager Tederick says – the remaining question is whose book?

However as observed by Napier above, what the Virginia FOIA Advisory Council sees as “by the book” and how some municipal attorneys or their bosses may “read the book” are often at odds.
From the FOIA Council’s perspective “employees of any public body” does not meet the FOIA requirement for specificity as to the “subject” of a closed meeting. Mr. Napier and other municipal attorneys may disagree or chose to err on the side of caution to avoid possible employee litigation for revealing confidential personnel records.

However, as FOIA Council Executive Director Gernhardt told us, litigation sometimes comes from the other side – the public complaining that required FOIA information to justify going behind closed doors is being withheld by elected officials and their staff.

But if the departmental staff or staffs discussed in closed session January 27 and February 3 are unknown, what is known are the staff repercussions in proximity to those dates.

Two days after the January 27 closed session personnel discussion, Interim Town Manager Tederick has publicly disclosed a series of conversations informing Planning Director Jeremy Camp, Community Development Director Felicia Hart, Town Engineer Robert Brown, Council Clerk Jennifer Berry and Planning Department staffer Matt Farace that their services were no longer needed and their terminations were imminent, if not immediate.

Prior to the February 3 closed session, Tederick presented an FY 2021 Budget to council recommending no staff salaries for the Tourism Department in the coming fiscal year that begins July 1.

If Mr. Tederick’s public statements on the reasons for the recommended terminations and future staffing cuts being tied solely to budgetary concerns and a desire to reduce Town operational expenses is taken at face value, it is hard to see Napier’s caution on violating personnel privacy statutes as coming into play on either date in question. Unless of course those decisions had already been made and the personnel matter of the 27th did not relate to those looming terminations.

And were that true, it leads us to the same FOIA compliance question on whatever date those terminations were discussed in closed session, assuming they were. – It is hard to know when they were discussed since the Town closed session motions do not specify the personnel subject to be discussed, which is at the heart of the issue.

Town Council in open work session mode on Jan. 27, prior to adjourning to closed session to discuss personnel, among other things. Council Clerk Jennifer Berry on the job at back left, was not invited to stay for that discussion.

So, if intentionally or unintentionally, motions to discuss recommended staff terminations behind closed doors were made concealing FOIA-required information whenever those discussions occurred, where does that leave the Town, those employees, as well as town citizens angered by the action and perceived backwards process behind it?

The short answer is that would be up to a judge were a legal challenge of the adjournment to closed session regarding personnel matters on either of the above or any other dates, to be upheld by the courts.

“The public body must still identify the subject in order to make a proper motion to convene a closed meeting. Determining whether any particular motion meets the statutory requirements depends on the facts of each situation and requires a case-by-case analysis,” the FOIA Council notes in its website discussion of previous cases.

Consequences?
We asked Gernhardt about possible consequences of citizen litigation challenging the closed session discussion of the budget-related terminations or any matter found to have been adjourned to without proper FOIA disclosure.

Conceivably, Gernhardt told us the judge could rule the closed meeting or portions of it did not occur and any consequent votes taken are declared void.
Situations have occurred where the judge ordered depositions on the closed meeting’s content from participants and then made those depositions a public record of the illegally convened closed session.

Should plaintiffs prevail, judges have ordered the municipality to pay the plaintiff’s legal expenses. And in some cases, judges have imposed civil penalties of $2,000 to $5,000, ordering the municipality to pay those amounts into the State Literary Fund.

So, it appears the payoff would largely be one of principal and directing future content of Town closed session motions; possibly making the content of a closed meeting ruled illegally convened a matter of public record, as would be any vote or council consensus voiced behind closed doors on such things as terminations.

To litigate or not to … Will anyone choose to legally challenge the Town’s interpretation of FOIA law as it applies to identifying the ‘subject’ of closed meeting personnel discussions?

Tourism, the Visitors Center, staff futures and outsourcing – what does the present and future hold?

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Joint Town Planning – Council Meeting kicks off Comprehensive Plan rewrite push

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The Front Royal Planning Commission did not consider any new permit proposals this month, and instead met October 20 with the Town Council in a Leadership Forum to hear from the consultant team that will help the Town with a major rewrite of its Comprehensive Plan. The current plan dates from 1998. In that version of the Comprehensive Plan, the Town sought to address the problem of an increasing number of community residents who had to commute to the Washington DC metropolitan area leaving a bedroom community without a strong economic base or community character. The plan also identified the loss of the rural character of the area by residential developments in rural areas or mountain development as slowly robbing town residents of the public values contributed by surrounding farms and natural areas. Many of the themes and emphasis areas in the old plan are even more relevant in 2021.

Summit Design and Engineering, the firm that the town has tapped to provide expertise and staff to conduct the rewrite, provided an overview of the schedule and areas of concentration for the joint session, as they had in a one-on-one meeting with council the previous day. Ann Darby, the Summit Design representative, explained that the Comprehensive Plan is a guiding document that envisions what the future of a community looks like and outlines steps it takes to get there. A particularly important point is that although the plan itself does not have the force of law, it should lead to changes in the official zoning map and the Zoning and Subdivision ordinances that bring legal weight to the adopted guidelines.

Summit Design and Engineering representative Ann Darby, left, and Town Planning Director Lauren Kopishke address the Joint Leadership Forum of the Town Council and Planning Commission under questioning from Commission members.

Town Planning Director Lauren Kopishke outlined the results of a Town Council session held on October 19 where council members identified their vision for the town. That vision included:


  • An abundance of retail options
  • A walkable community
  • Riverfront Development and Access
  • Preserve and enhance Downtown
  • Natural Resources
  • Small town charm and architecture
  • Community Appearance
  • Lodging Options
  • Public Transit options
  • Small area planning for key areas.

During the October 19 meeting, Council also identified areas that the members felt should be revisited during the Comprehensive Plan rewrite:

  • A Road Diet, described as a review of the roadways in the town and how they can be made appropriate to the traffic levels
  • Expansion of the entrance corridors
  • Minimization of trip time for basic necessities
  • Location of Industrial Zoning
  • Desirable vs. undesirable uses
  • Traffic Concerns
    • Congestion
    • Bike/Pedestrian safety
    • Public Transport expansion

The vision and goals identified during the process of rewriting the Comprehensive Plan are really only the beginning of the process. A useful Comprehensive Plan is the product of, not only the team assembled by the Town with participation of a consultant, council itself, and the Planning Commission, but the largest and most challenging part – public participation.

The traditional permit process used for individual projects or permit requests includes advertisements in the neighborhoods affected by the granting of a use permit, public hearings, and council approval, but it was noted the Comprehensive Plan needs much more. To properly address the small-town character, economic, environmental, and housing sustainability, tourism, mobility and accessibility, public health and safety, responsive and accountable governance, and public services, the plan needs input from citizens, businesses, and even visitors, in addition to the planning experts and government staff. The Town Planning Department will be reaching out to the public with a variety of tools to gather public input. The team will use public input sessions, an interactive website, online and paper surveys, comment sessions for draft documents, and vision statements to reach the widest population of those citizens, business owners, and visitors who will be impacted by the decisions made in the review and rewrite.

Because the plan must be grounded in current reality, the team intends to spend the initial months of the process gathering information on existing conditions. It must take account of what is working, and not working, Darby said. The plan will be ultimately organized around 11 general areas:

  • Community Appearance
  • Transportation
  • Land Use
  • Economic Development
  • Capital Improvements
  • Tourism
  • Housing
  • Parks & Open Space, Development Areas
  • Goals, Vision, and Future

The benefits of both the Comprehensive Plan and the ensuing Subdivision and Zoning Ordinances are for both citizens and businesses – Companies want to locate in places where their employees would want to live, and citizens want an active local economy for employment and supply for their everyday needs. A good plan builds realistic expectations, better transparency, and a healthier community. Work is expected to continue on the Comprehensive Plan into February of 2023.

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EDA in Focus

‘Ghosts of EDA Loans Past’ come back to haunt county supervisors

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The most interesting part of Tuesday evening’s Warren County Board of Supervisors meeting was likely behind closed doors after the board adjourned to Closed/Executive Session for a legal-based answer to North River Supervisor Delores Oates question as to what benefit to the County and its taxpayers there was in approval of a Resolution admitting a “moral obligation” to continue to pay the debt service on bank loans made by the EDA during its developing financial scandal, circa 2016 or so. There was one of three loans at issue of particular interest – the $10-million-dollar loan to Truc “Curt” Tran’s ITFederal company poised to jumpstart commercial redevelopment at the 149-acre portion of the former Avtex Superfund site known as the Royal Phoenix Business Park.

North River Supervisor Delores Oates particularly wondered why it remains in the County’s interest to continue covering debt service on the Town/EDA-sponsored ITFederal loan. Anxious to see commercial redevelopment begin on a portion of the former Avtex Superfund site in town, the Front Royal Town Council made a one-month, which grew to three-months, ‘bridge loan’ of $10-million to the ITFederal project to illustrate Town support of that project to a skeptical bank targeted to finance the project. Below, five-plus years later an unoccupied, un-permitted building constructed at an estimated cost of $2 million or less memorializes the entire debacle. Further below, I guess the building looks kind of like what ITFederal presented back in 2016 – at least the first floor. Royal Examiner Photos by Roger Bianchini

Of particular interest, because the “moral obligation” for that loan was initially believed covered by the Town of Front Royal, whose elected officials agreed to provide a $10-million-dollar “bridge loan” requested by then EDA Executive Director Jennifer McDonald to indicate to First Bank and Trust that “the community” stood behind the loan and proposed project it supported. That request for and Town show of financial support for the ITFed project came despite the fact the company showed virtually no assets other than the three acres at the Royal Phoenix/Avtex site valued at slightly over $2-million-dollars that was “gifted” to the company by the EDA behind closed doors for one dollar.

A clue to what the county supervisors heard over about 15 minutes in Closed Session may have been offered by the board’s action out of it. After some hesitancy in response to the Chair’s call for a motion on the Resolution, Oates’ motion for approval of the “EDA First Bank and Trust Support Agreement”, seconded by Walt Mabe, passed by a unanimous roll call vote. The vote commits the County to continue to absorb those “moral obligation” payments through the Fiscal Year 2021-22 at an estimated cost of $214,000.


In open session, responding to questions about the Resolution in support of the “EDA First Bank and Trust Support Agreement”, County Administrator Ed Daley mentioned consolidation of three loans, including the above-mentioned ITFederal loan (at $9,551,500), as well as a First Bank and Trust Line of Credit ($8,691,600), and a First Bank of Strasburg loan ($3,450,000). Contacted later, Daley cited one condition that would bring the EDA’s payments to the bank on the ITFederal loan in line with what ITFederal pays the EDA monthly at about $42,000. Before the EDA payments fluctuated to more or less than the ITFed payments, sometimes as much as $7,000 a month more.

After County Administrator Ed Daley, left, summarized the proposed ‘First Bank and Trust Support Agreement’ and Supervisor Oates asked ‘Why?’ the County should continue to assume moral obligation payments it may not be responsible for, Interim County Attorney Jason Ham, right, suggested a Closed Session might be most appropriate to answer that question.

Despite the commitment to an estimated $214,000 in payments through this fiscal year, the board’s unanimous vote in support of its moral obligation payments likely reflects negative consequences were the County to bail on covering an EDA debt mid-fiscal year. But again, the agreement is only to the end of the current fiscal year, June 30, 2022. What might the future of “moral obligations” related to the “Ghost of EDA Loans Past” bring in FY-2022-23? – Stay tuned for another seasonal episode of “A Front Royal-Warren County EDA Carol”.

Thermal Shelter bathrooms

County Administrator Daley was also prominent in responding to another matter raised by three speakers during Public Comments about things, not on the meeting agenda. That was the elimination of two bathrooms in the Health and Human Services Complex at the old 15th Street middle school utilized by the County and involved churches and civic organizations to house the community’s homeless indoors at night during the winter. Opening that discussion was First Baptist Church Pastor Christy McMillin-Goodwin, followed by Aneita Bryant and Jim Bunce.

First Baptist Church Pastor Christy McMillin-Goodwin opened Public Comments discussion of how communications broke down between involved Thermal Shelter parties on the removal and delayed replacement of indoor bathrooms nearest the winter homeless shelter.

That trio said an alternate plan for mobile outdoor restrooms was unadvisable due to security and additional personnel to monitor out-of-building night trips, as well as potential severe weather issues. Noting a replacement plan that would not have new indoor facilities in place in time for this winter’s thermal shelter setup, these speakers wondered how the removal plan had been initiated without notice to those involved in helping the County operate the thermal shelter. Bryant suggested allowing access to the next closest indoor facilities.

In responding, Daley said he had been at point for the County in initiating the bathroom removal due to failing pipes that caused toilet backup issues. He said he had envisioned a much quicker turnaround in replacing the removed indoor facilities in that section of the building than ended up being the case. He promised to work proactively with those involved to see that an adequate alternate overnight option was available when the thermal shelter opens as winter arrives.

Public Hearings

Also Tuesday following public hearings, the board unanimously approved three Conditional Use Permit applications, two for short-term tourist rentals and one for a private use campground. Following application summaries by Planning Department Deputy Director Matt Wendling the first two CUP applications, Charles and Lou Ann Dotson’s for the Private Use Campground on their property on Burma Road in the Man-Da-Lay Subdivision; and Jacob W. Lott Jr. and Sandra J. Kiepfer for a short-term tourist rental on their 1.6-acre lot on Little Indian Road in the Blue Mountain Subdivision in Linden went to a vote with no public hearing speakers. Wendling did note that a letter from the chairman of the Blue Mountain Property Owners Association had been received, expressing “no problem” with Lott and Kiepfer’s short-term tourist rental application.

Up last were Nicole and Sean McMinn with a short-term tourist rental permit application for their 2.42-acre property on Sagar Drive in the Highland Estates Subdivision in the Fork District. Again, there were no public speakers after the applicants responded to the board chair’s offer to summarize their request. The D.C.-based couple told the board they had run into little opposition from neighbors, and what opposition there had been from neighbors was not from those closest, but with property over a thousand feet from theirs.

Nicole McMinn and her husband Sean marshaled neighbor and tourism-related business support for their short-term tourist rental permit application.

And while there were no public speakers, the McMinns noted a number of letters to the board from supporters of their short-term tourist rental CUP application, which they asked to be read into the meeting record. Board Clerk Emily Ciarrocchi then read nine letters of support, including one with “25 to 30” signatures. Several of the letters, including one from the owner of the Downriver Canoe Company, noted positive impacts on tourism-related businesses from short-term renters. One letter noted, “They come; they spend; they leave”.

The board then made its final unanimous vote of approval on a motion by Archie Fox in whose district the applicant’s property lies, seconded by Walt Mabe.

Following that vote, Happy Creek Supervisor Tony Carter noted a “Bless you” included in one of the letters read by the clerk that was well-timed to a sneeze by someone present in the government center meeting room.

Approaching an election he chose not to be a part of two days after Halloween this year, Tony Carter was on a comic roll Tuesday evening suggesting politician as perhaps the scariest costume for the Oct. 31 to Nov. 2 window.

In fact, facing a future out of the public eye politically – Carter did not file to be on the ballot for reelection to his Happy Creek seat in November – Carter appeared at times Tuesday to be auditioning for Comedy Club spots during his member report and at various other times during the meeting. In fact, his coming local election, Halloween costume advice during his member report led three of his four colleagues to decline to try and “follow that act”.

See all the fun, business, and other public perspectives, including opening Public Comments speaker Michael Williams question as to whether a recent church-sponsored candidates forum in which the moderator was shown prior to the forum to have contributed to one church-associated candidate’s campaign could threaten that church’s tax-exempt status on U.S. Constitutional separation of church and state guidelines, in the County video:

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EDA in Focus

EDA gets McDonald company property as part of settlement agreement

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On Wednesday, October 20, Warren County Economic Development Authority Board of Directors Chairman Jeff Browne verified the EDA’s acquisition of the 41-acre “Happy Creek Road” parcel owned by former EDA Executive Director Jennifer McDonald’s Moveon8 real estate LLC. Acquisition of the undeveloped property assessed at just over a million dollars according to county court records is part of the $9-million-dollar no-fault settlement agreement reached between the EDA, McDonald, and the Harrisonburg Bankruptcy Court handling McDonald’s 2020 bankruptcy filing. The EDA will now be able to market the property as a developable EDA asset. It is located near the intersection of Happy Creek Road and Leach Run Parkway.

Browne said that in addition to receiving full value on the Happy Creek parcel, the EDA was in line to receive a percentage of the sale price of other McDonald assets distributed through the bankruptcy court proceeding. Exactly how close those percentages might get the EDA to the $9-million-dollar settlement figure remains to be seen. It was not immediately clear as to whether the EDA will have an outright full value claim to any other McDonald-held properties or assets.

The FBI and VSP were both involved in the April 2019 search of McDonald’s former office; below, being locked down after her resignation under mounting investigatory pressure by her board on Dec. 20, 2018. Royal Examiner File Photos by Roger Bianchini

McDonald is the central figure in the EDA financial scandal that began unravelling in mid-to-late 2018. She resigned in December 2018 under mounting pressure from her board of directors. She has been accused in civil and criminal court of utilizing her EDA position to misdirect EDA assets to her and others personal benefit. Western District of Virginia federal authorities have taken over the criminal side of the EDA case after a state special prosecutor’s office in Harrisonburg dropped criminal charges against McDonald and as many as 23 co-defendants due to speedy trial concerns as it wrestled with the volume of evidentiary material – estimated at 800,000 to over a million pages at the time. With charges against some defendants originating with the county commonwealth attorney’s office that initially handled the criminal investigation during Brian Madden’s tenure heading the department, failure to meet speedy trial timelines could have led to defense motions for dismissal of criminal charges against the defendants.


Jennifer McDonald booked during state criminal prosecution process in 2019.

On August 31, 2021, federal prosecutors made their initial move, handing down a 34-count indictment against McDonald. 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.” – ITFederal principal Truc Tran perhaps?

ITFederal principal Truc ‘Curt’ Tran on site at EDA parking lot, adjacent to his now floundering construction project, on Dec. 20, 2018, the day Jennifer McDonald resigned as executive director of EDA. Tran expressed distress at the potential of McDonald’s departure at the time. Could Tran, whose $10-million loan for the Royal Phoenix project was the largest single item listed in the initial EDA civil litigation, have now accused McDonald of ‘aggravated identity theft’ regarding EDA financial dealings with him and his company?

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At least two supervisors willing to revisit continuation of coyote bounty program in more open forum

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Seeing the continued awarding of $50 bounties for the random shooting of coyotes in Warren County following a November 10, 2020, work session presentation by County legal and animal control staff seeking an end to the practice as counterproductive to its intent of thinning coyote pack numbers, Royal Examiner recently sought information on the Board of Supervisors apparently unanimous decision to continue the bounty awards.

In early October this reporter emailed Board Chairman Cheryl Cullers with copies to the other four board members in case there was a divergent opinion on the matter that has not, to this reporter’s knowledge, been publicly discussed. The only initial reply was from the board chair: “… but there are those that don’t agree with that information,” Cullers replied of the information presented to the board on November 10, 2020, by Warren County Sheriff’s Office Animal Control Officer Laura Gomez and Assistant County Attorney Caitlin Jordan.

Typical Consent Agenda request for approval of a coyote bounty payment. This one was submitted and approved nine months after supervisors were told the program was, not only ineffective but counterproductive to the intent of thinning coyote pack numbers. Royal Examiner Photos by Roger Bianchini; Coyote Photo Public Domain

“That information” was addressed in Royal Examiner’s November 11, 2020, story “County headed to public hearings to end coyote bounty payments and expansion of loose dog prohibitions”. It included the following information: “The biggest issue with (coyote bounties) is we have documentation showing it’s not effective in any way. And removing the coyote bounty would not prevent people from still being able to protect their property and their livestock … And they’re showing in that letter that it has over a 150-year failure,” Animal Control Officer Gomez noted of the proposed ordinance amendment ending the bounty program.


“That letter” referenced by Gomez to the county supervisors on November 10, 2020, stated among other things that: “Coyote bounties have been tried throughout the United States for more than 150 years. There is not a single documented instance of a bounty

program temporarily or permanently reducing coyote populations or livestock depredation problems,” Michael L. Fies of VDGIF (Va. Department of Game and Inland Fisheries) wrote in response to a November 2016 inquiry by Bath County Animal Control officials included in Tuesday night’s agenda packet,” Royal Examiner reported at the time.

WCSO Animal Control Officer Laura Gomez told the supervisors on Nov. 10, 2020, that 150 years of data indicates bounties have not helped reduce coyote numbers anywhere, at any time; and in fact, have the opposite impact of increasing female coyote reproductive cycles.

And it was not simply the abandonment of bounties, but the implementation of what was called more “successful targeted control” programs in place of bounties, suggested at the state level that was brought to the supervisors late last year:

“Since coyote bounties are ineffective, our Department has consistently recommended against these programs in favor of targeted control efforts around farms with a history of coyote damage. This approach has been successfully used by USDA Wildlife Services to reduce livestock losses in other portions of the state,” VDGIF’s Fies wrote in the above-referenced 2016 letter to Bath County officials presented to Warren County’s elected officials by animal control and legal staffs in late 2020.

It might be noted that this reporter’s headline on the referenced story on that November 10, 2020, presentation on coyote bounty programs contained one glaring inaccuracy – “County headed to public hearings to end coyote bounty payments (and a related animal control issue on dogs running loose in the county). For no public hearing was there to be, nor to this reporter’s knowledge, any open work session or meeting discussion by the board of the information it was presented with by county staff on November 10, 2020, nor of any expressed citizen disagreement with that information.

Rather, on January 5, 2021, coyote bounties were presented for continuation as part of the Consent Agenda for matters considered “routine business” not requiring public discussion or scrutiny by the board prior to a vote of approval. And while other Consent Agenda items were pulled for discussion that evening, continuing the coyote bounty program was not one of them.

But that could be poised to change. Contacted about the approval process, first Board Chairman Cullers expressed a willingness to revisit the issue. “I would be glad to have a future discussion on this issue. I understand the side that feels it is not effective, but there are those that don’t agree with that information. Again I will be glad to readdress the issue,” Cullers replied to this reporter’s emailed inquiry about the initial approval process.

WC Board Chair Cheryl Cullers has expressed a willingness to revisit the bounty issue in a more public forum. But where do her colleagues, pictured below at the Nov. 10, 2020, work session discussion of the coyote bounty program, stand on the issue?

And “readdress” would seem a wise course for this board majority. Because that initial approval process, essentially done out of the public eye, other than the vote to continue it without a public hearing or public discussion other than one meeting public comment favoring continuation of the bounties that Cullers cited, seems to run contrary to the process of a board majority carried into office over a year and a half ago on campaign promises of ending political “business as usual” out of the public eye – a process cited as contributing to the EDA financial scandal the county is still recovering from.

In fact, we reached out a second time to North River Supervisor Delores Oates following her comment at the October 5 Board of Supervisors meeting to County Administrator Ed Daley regarding the effectiveness of air purification machines the County is pondering the purchase of for use in county government buildings. – “We want facts, not opinions,” Oates told Daley of a final decision on the air purification device purchase for Warren County Government buildings.

Supervisor Oates stands by her ‘facts, not opinions’ statement and added her willingness to revisit the coyote bounty issue. She pointed to other issues like COVID pandemic ramifications and the County’s IT security breach as distracting the board from further exploration of alternatives to the coyote bounty system.

And yes, facts, as they are available, would be valuable in ascertaining the effectiveness of the air purification machines in limiting the spread of contagious viral or other airborne illnesses. But why not the same standard of “facts, not opinions” in the decision to continue a coyote bounty program found locally, state-wide, and nationally to be counterproductive to its intent of thinning coyote packs anywhere over 150 years of experience?

And Oates too expressed a willingness to revisit the issue prior to publication.

“I would be happy to discuss. If memory serves me correctly, there were no alternatives offered to control the population of coyotes at that presentation. I believe we postponed a decision to learn more about what options were available to reduce the coyote population,” Oates responded to our email inquiry.

“I stand on my facts, not opinions statement,” she added, pointing to myriad other issues the County has faced in the past year: “On this topic, we didn’t revisit as I suspect many other issues have taken precedent. With COVID and the IT breach, the coyote topic didn’t seem urgent. I am not opposed to revisiting the alternatives to bounties in the near term,” Oates wrote Royal Examiner, adding, “Perhaps we needed to understand what targeted control meant. I will be honest it’s been almost a year since we heard the presentation. We wanted to understand what the cost was to farmers with a targeted control approach. I know there were lingering questions which is why we just didn’t eliminate the program.”

And with a perhaps building board consensus, it appears the county supervisors may be revisiting the coyote bounty issue, and exploring alternatives such as those referenced “targeted control efforts around farms with a history of coyote damage” that Virginia Department of Game and Inland Fisheries Michael L. Fies referenced in his 2016 letter on the subject to Bath County officials. As we told Supervisors Cullers and Oates during our discussion, it seems counterintuitive to continue to pay people in a bounty program cited by wildlife professionals as not only ineffective but achieving the opposite effect of often increasing coyote numbers, rather than reducing them.

And if there are citizens who disagree with those conclusions of wildlife professionals, it would be nice to publicly hear what facts, if any, those disagreements are based upon.

See the full November 10, 2020, presentation and discussion in the linked Warren County Work Session video Nov 10, 2020 Board of Supervisors Work Session – Warren County, VA (swagit.com):

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Local Government

County Planning Commission reviews Fire Department Capital Improvement Plan, also faces upsurge in permit activity

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The Warren County Planning Commission met on October 13 in a work session to review a Capital Improvement Plan submission for 2021-2025 for the County Fire and Emergency Services Department. Chief James Bonzano told the Commission that calls for service for 2020, the last complete year, increased by over 3%, continuing a trend that began in 2013. This increase impacts response times, budget costs, and equipment availability, he explained. Calls were split between Fire, at 14%, and EMS (Emergency Medical Service), at 86%. EMS vehicles are called out more than 4 times as often as fire apparatus, have longer runs, and as a result, wear out that much sooner.

The National Standards for fire department equipment govern when it should be placed on the reserve list or removed from service. According to Chief Bonzano, the current fleet has 18 units of its 65 that are over 15 years old, and two over 25 years. In Warren County, there is currently no capacity to place vehicles in reserve. The chief also identified facility improvements needed, live-fire training, and firefighter cancer prevention as priorities in the submission. The Chief oversees a nearly $6 million annual combined budget.

Several commissioners suggested ways to extend budgets by alternative financing or leasing. The Chief acknowledged he is looking into these mechanisms but cautioned that many of them assume a fleet that allows for residual values when turning in a vehicle at the end of the lease. Much of the current fleet is far past the age where it would have any residual value as used equipment. The Fire/EMS Department is also pressed for volunteers – not only operational but associates – helpers of all kinds, including fundraisers. The Fire and Rescue Services capital investment submission will now be fed into the County’s budget process.

Fire Chief James Bonzano II, left, and Fire Marshal Gerry Maiatico explain the Fire and Rescue Department’s Capital Improvement request to the County Planning Commission. The Department faces funding challenges as the workload grows.


 

The regular Planning Commission meeting followed immediately after the work session, and the commission considered two Conditional Use permits (CUP) requests.

Terra Site Constructors, LLC, is requesting a Conditional Use Permit for a contractor storage yard at 6986 Winchester Road in the North River Magisterial District. The property is zoned Industrial (I). Planning Director Joe Petty reviewed the recommendations for approval of the request for the commission members. There were no public comments on the proposal, so Commission Chairman Robert Myers closed the public hearing. The site will primarily be used for the temporary storage of heavy equipment. After a brief discussion, the commission voted unanimously to recommend approval of the permit. The request will now go to the Board of Supervisors for approval.

Jake Johnson, representing Terra Site Constructors LLC, takes questions from the County Planning Commission. Terra Site Constructors seeks to locate a storage yard on Winchester Road.

 

Gordon Lee Birkhimer has requested a Conditional Use Permit for a short-term tourist rental for his property at 52 Forest View Drive, an Agriculturally zoned property in the Fork Magisterial District. Mr. Birkhimer is planning a sailboat trip around the world and expects to be absent for up to two years. He has engaged a professional management firm to oversee the rental activity, and a local citizen to do maintenance and upkeep.

When Chairman Jones opened the floor for public comment, Pamela Rhodes addressed the commissioners and outlined her opposition to the permit. As a 30-year resident of the neighborhood, she expressed the opinion that the applicant would have no control over what kind of people would be renting the property and as an absent property owner would not care. She was opposed to long or short-term rental for the property. In addition, one neighboring property owner, Phyllis Wright, had written to the planning department and opposed the permit being issued. Her concerns were for personal safety, fire danger, and the potential for crime.

Resident Pamela Rhodes explains her opposition to a short-term tourist rental in the Massanutten Farms Subdivision.

 

Once the Public hearing was closed, Vice Chairman Hugh Henry commented that the community’s experience with short-term tourist rentals has been very good – an asset in a neighborhood, particularly since strict rules govern the issuance of a permit. Tourist rentals must be well maintained or guests won’t rent them. A long-term renter is a much greater risk, since a property owner can rent his property to anyone he chooses, and neighbors have no recourse. Management companies do generally perform background checks, and a written set of guidelines in the property management plan assure that guests know what the rules are.

Given the growing experience with the issuance of short-term tourist rental CUPs and the concerns of neighbors, Vice Chairman Henry asked the applicant if he would agree to two additional conditions: A prohibition against the use of ATVs on the property or roads around it, and a prohibition on discharging firearms. The applicant agreed. The commission then voted unanimously to recommend approval. The request will now go to the Board of Supervisors for approval.

The commission faces a steep climb at its November meeting with 10 CUP requests for a variety of uses, including short-term tourist rentals, a cluster housing development, an Outdoor Recreation Operation, two Rural Events Facilities, a gunsmithing service, and a campground, as well as two proposed Text Amendment changes to the Warren County Code Chapter 180. Commissioners approved authorizations to advertise all these requests.

Planning Director Joe Petty told the commission that the Comprehensive Plan review work sessions will resume in January, and he thanked the commissioners for their time and work so far on the new plan. Meantime, the Planning Department will be meeting with the contracting firm that is helping with the rewrite to prepare for the next steps.

Chairman Myers then adjourned the meeting.

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Local Government

County seeks Town to jointly explore regional water alliance

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While the Front Royal Town Council was failing to gather a quorum to conduct its work session slated to follow a 6 p.m. Finance and Audit Committee meeting at Town Hall, across town at the Warren County Government Center several town officials including Assistant Town Manager Kathleen Leidich and Public Works Director Robbie Boyer, were present to hear a presentation by the Frederick Water Authority to a work session of the Warren County Board of Supervisors.

Board Chair Cheryl Cullers noted the invitation extended to, not only town staff, but its elected officials at last month’s Liaison Committee meeting, to hear the presentation on what appears to be a state-and-federal government promoted move toward regional water authorities.

“I’m not trying to tell the Town what to do – I want them to be a part of this,” Cullers said of a cooperative move into an altered water-sewer utility relationship that could be of mutual benefit to both municipalities, particularly over the long haul of future development on the county’s north side.

Warren County Board Chair Cheryl Cullers made it clear she hopes the County and Town move forward together to explore participation in a regional water authority. Royal Examiner Photos by Roger Bianchini


Cullers noted that several council members have stated the intention of watching the County video of the presentation in playing catch up. And what town officials did or will hear is very interesting as to long-range planning for regional growth and provision of cost-efficient water and sewer service. For while the Town of Front Royal has its own central water-sewer utility, it is dealing with what was termed “100-year-old infrastructure” in some areas and a limited and now oft-threatened by solid waste-fueled destructive algae blooms, water supply, the Shenandoah River. The Frederick Water Authority on the other hand is in the midst of creating new infrastructure for what appears to be a massive underground water source, while entertaining a change in its structural documentation to extend its reach beyond the boundaries of Frederick County and the City of Winchester to adjacent counties including Warren and Clarke.

Frederick Water Authority Executive Director Eric Lawrence told county officials that the Frederick County Board of Directors was positive in reception of exploring the idea of expanding the water authority into a regional operation across county lines. As illustrated in power point below, Lawrence noted the Frederick Water Authority’s access to 4 billion gallons of water, enough reserve for a year of use by its current customer base.

Executive Director Eric Lawrence outlined the Frederick Water Authority’s existing parameters, structure and infrastructure. That structure includes independence from the Frederick County government, though it is a relationship that currently includes the Frederick County Supervisors appointing the water authority’s board of directors. Lawrence noted that like municipal utilities, the Frederick Water Authority is a non-profit operation with its fees going back into the supporting infrastructure. A cost-comparison showed favorable numbers on average residential charges in the region. And Lawrence noted that potential expansion into adjacent counties, further expanding the customer base would poise the operation to continue to offer excellent rates with a massive water supply with redundancy and backup within that water supply base.

Warren County, along with Clarke County, has expressed interest in a regional water authority based out of the existing Frederick Water Authority. And thus far Frederick County’s response has been positive, Lawrence told the Warren supervisors. Below, long-tenured Happy Creek Supervisor Tony Carter, maroon shirt upper right, pointed to aspects of the Rt. 522/340 North Corridor Agreement that might prevent Warren’s participation in a regional water utility authority without the agreement of the town government.

However, Happy Creek Supervisor Tony Carter pointed to an old written aspect of the Route 522 North Corridor Agreement that saw the Town of Front Royal extend its central water-sewer utility into Warren County’s Route 340/522 North Corridor to facilitate industrial and commercial tax-base expansion in the county’s northside. That “Sanitation Authority” aspect of the Corridor Agreement could seem to legally prohibit shopping for better water-sewer utility rates by Warren County on its northside. However, were the Town to agree to throw into the regional water concept with Warren County, seeing benefits to its own future operations and expenses, such a legal blockage could evaporate.

North River Supervisor Delores Oates noted recent experience had shown that working at odds with each other was in neither the County, nor Town’s best interest.

“I’m just saying that it’s easier to say than to do,” Carter said of a joint move of the Town and County governments toward a regional water authority that could create a major realignment of how the Town’s water-sewer utility operates.

North River Supervisor Delores Oates said a joint County-Town exploration of participating in an expanded, regional Frederick Water Authority seemed a logical path forward. Below, Carter said he was just noting that sometimes talking municipal cooperation was easier than achieving it.

See details of the Frederick Water Authority operations and future potential in an expanding regional format, along with its implications on utility costs on both sides of the town-county line, in the first hour-and-six-minute power point presentation and Q&A in the County work session video.

A cost comparison of current residential utility rates in the region.

Following that regional water authority presentation and discussion the board adjourned to Closed/Executive Session to discuss EDA litigation and related matters including recovery of EDA assets. And on the back end of that hour-and-fifteen-minute Closed Session, see a detailed presentation on the operations, costs and revenue streams of the County’s Parks and Recreation Department; followed by County Administrator Ed Daley’s summary of options on Compensation Board Bonus pay related to COVID pandemic operations and County payments to non-Comp Board covered employees.

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11:00 am Fall Farm Days: History of Sky M... @ Sky Meadows State Park
Fall Farm Days: History of Sky M... @ Sky Meadows State Park
Oct 23 @ 11:00 am – 5:00 pm
Fall Farm Days: History of Sky Meadows @ Sky Meadows State Park
Historic Area.  During Fall Farm Days History Weekend, step back in time and see history come to life. Stroll through the Historic Area buildings, interact with our living historians and discover our links to historic[...]
11:00 am The Farmer’s Forge @ Sky Meadows State Park
The Farmer’s Forge @ Sky Meadows State Park
Oct 23 @ 11:00 am – 5:00 pm
The Farmer’s Forge @ Sky Meadows State Park
Blacksmith Shop in the Historic Area. The forge is fired up and the blacksmiths are hard at work in the Historic Area. Members of the Blacksmith Guild of the Potomac have set up shop and[...]
1:00 pm Paint Class for Kids Ages 8 and up @ Strokes of Creativity
Paint Class for Kids Ages 8 and up @ Strokes of Creativity
Oct 23 @ 1:00 pm – 2:30 pm
Paint Class for Kids Ages 8 and up @ Strokes of Creativity
This is a painting class for children 8 years old and up. Tickets: CLICK HERE Tickets are available through Square Up, or can be paid in person at Strokes of Creativity. Date: Saturday, October 23,[...]
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11:00 am Fall Farm Days: History of Sky M... @ Sky Meadows State Park
Fall Farm Days: History of Sky M... @ Sky Meadows State Park
Oct 24 @ 11:00 am – 5:00 pm
Fall Farm Days: History of Sky Meadows @ Sky Meadows State Park
Historic Area.  During Fall Farm Days History Weekend, step back in time and see history come to life. Stroll through the Historic Area buildings, interact with our living historians and discover our links to historic[...]
11:00 am The Farmer’s Forge @ Sky Meadows State Park
The Farmer’s Forge @ Sky Meadows State Park
Oct 24 @ 11:00 am – 5:00 pm
The Farmer’s Forge @ Sky Meadows State Park
Blacksmith Shop in the Historic Area. The forge is fired up and the blacksmiths are hard at work in the Historic Area. Members of the Blacksmith Guild of the Potomac have set up shop and[...]
6:30 pm Benefit Concert for Front Royal ... @ Riverton Church
Benefit Concert for Front Royal ... @ Riverton Church
Oct 24 @ 6:30 pm – 8:00 pm
Benefit Concert for Front Royal Police @ Riverton Church
Riverton Church is hosting a benefit concert featuring the Mr. Ron Dye (director) and the Riverton Church Symphonic Wind Orchestra as well as Yesterday Swing Orchestra. Free Admission: Offering taken to benefit the Front Royal[...]
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25
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11:00 am Art Class for K-1st @ Strokes of Creativity
Art Class for K-1st @ Strokes of Creativity
Oct 25 @ 11:00 am – 12:00 pm
Art Class for K-1st @ Strokes of Creativity
This class is for Kindergarten and First Grade. Perfect for home schoolers. Recommended ages: Ages 5 and 6 Tickets: CLICK HERE Tickets are available through Square Up, or can be paid in person at Strokes[...]
1:00 pm Art Class for 2nd & 3rd @ Strokes of Creativity
Art Class for 2nd & 3rd @ Strokes of Creativity
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10:00 am Senior Painting Class with Dottie @ Strokes of Creativity
Senior Painting Class with Dottie @ Strokes of Creativity
Oct 28 @ 10:00 am – 12:00 pm
Senior Painting Class with Dottie @ Strokes of Creativity
Senior Painting Class with Dottie at Strokes of Creativity. Tickets: CLICK HERE Cost: $80 for 6 weeks Dates: Thursdays – Oct 21, Oct 28, Nov 4, Nov 11, Nov 18, Dec 4 Time: 10 am[...]
1:00 pm Art Class for 4th & 5th @ Strokes of Creativity
Art Class for 4th & 5th @ Strokes of Creativity
Oct 28 @ 1:00 pm – 2:00 pm
Art Class for 4th & 5th @ Strokes of Creativity
This class is for Grades 4th and 5th. Perfect for home schoolers. Recommended ages: 9 and 10 years old Tickets: CLICK HERE Tickets are available through Square Up, or can be paid in person at[...]