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0001 1 VIRGINIA: 2 IN THE
CIRCUIT COURT OF THE CITY OF FREDERICKSBURG 3 4 - - - -
- - - - - - - - - - - - - - X 5 Gordon
Shelton, et al, Petitioners, : CH. No. 6 -vs- : CH-2-428 7 Bill Beck,
individually, as well : As in his capacity
as Mayor of the 8 City of
Fredericksburg, Va., et al, : 9 Respondents.
:
10 - - - - - - - - - - - - -
- - - - - X 11 12 VOLUME
I 13 14 EXCERPT
of the trial in the above- 15 entitled matter, when heard
on December 13, 2002, 16 at 9:00 a.m., before the
Honorable John W. Scott, 17 Jr., Judge. 18 19 20 21 0002 1 WHEN
THERE WERE PRESENT 2 ON
BEHALF OF THE RESPECTIVE PARTIES: 3 4 ON BEHALF
OF PETITIONERS: Gordon Shelton, 5 Anthony
Jenkins; Patrick Timpone: 6 7 Mr.
David Z. Kaufman, Esquire 8 KAUFMAN
LAW OFFICE 9 10625
Jones Street, Suite 201A 10 Fairfax,
Virginia 22030 11 (703)764-9080 12 13 Mr.
Michael Barnsback, Esquire 14 DIMURO,
GINSBURG & MOOK, P.C. 15 908
King Street, Suite 200 16 Alexandria,
Virginia 22314 17 (703)
684-4333 18 19 20 21 0003 1 ON BEHALF
OF RESPONDENTS: Bill Beck, Scott Howson, 2 Dr. Thomas
Fortune, and Matthew Kelly: 3 4 Mr.
Howard Stahl, Esquire 5 Mr.
John F. O'Connor, Esquire 6 STEPTOE & JOHNSON,
L.L.P. 7 1330
Connecticut Avenue, N.W. 8 Washington,
D. C. 20036 9 (202-249-8095) 10 11 12 ON
BEHALF OF RESPONDENT WILLIAM WITHERS, JR: 13 Mr.
William M. Sokol, Esquire 14 SOKOL & JONES 15 904
Princess Anne Street, Suite 101 16 Fredericksburg,
Virginia 22401 17 (540)899-8077 18 19 The
parties respectively. 20 21 0004 1 C
O N T E N T S - - - - - - - -
- - - - - - - - - - - - - - - - - - 2 3 Witness: Page 4 5 Mayor
Bill Beck 6 Direct
Examination by Mr. Barnsback 100 7 Cross Examination
by Mr. Stahl 131 8 Redirect
Examination by Mr. Barnsback 140 9 10 Vice-Mayor
Scott Howson 11 Direct Examination by Mr.
Barnsback 145 12 Cross Examination by Mr.
Stahl 163 13 Redirect Examination by Mr.
Barnsback 181 14 15 Councilman
Matthew Kelly 16 Direct Examination by Mr.
Barnsback 193 17 18 Sharon
D. Nelson 19 Voir Dire Examination by
Mr. Kaufman 218 20 21 (cont'd) 0005 1 WITNESS: PAGE 2 3 Mayor
Bill Beck, recalled 4 Direct
Examination by Mr. Kaufman 233 5 Cross Examination
by Mr. Stahl 262 6 Redirect
Examination by Mr. Kaufman 274 7 8 Vice-mayor
Scott Howson, recalled 9 Direct
Examination by Mr. Kaufman 281 10 Cross Examination by Mr.
Stahl 293 11 12 Petitioners
Rest 296 13 14 Councilman
Matthew Kelly 15 Direct Examination by Mr.
O'Connor 298 16 17 18 19 20 21 0006 1 E
X H I B I T S - - - - - - - -
- - - - - - - - - - - - - - - - - - 2 Page 3 Petitioners'
Exhibit One (Fitzgerald e-mail) 145 4 5 Petitioners'
Exhibit Two (Pates' letter) 249 6 7 Petitioners'
Exhibit Three (1-page document) 281 8 9 Petitioners'
Exhibit Four (document/Electronic
Communication) 288 10 11 Respondents' Exhibit One (2-page email from
Scott Howson) 167 12 13 14 15 16 17 18 19 20 21 0007 1 THE
COURT: One moment, 2 gentlemen. 3 We
are going to begin 4 this
morning's proceeding by considering 5 the
motion to dismiss filed by Mr. 6 Withers. So,
initially the hearing will 7 involve
only Shelton vs. Withers. 8 Mr.
Sokol, we have read 9 your
pleading. Would you like to 10 present
any additional argument or 11 testimony
in reference to your motion? 12 MR.
SOKOL: Yes, Your Honor. 13 May
I? 14 Since
there is no lectern 15 in
the courtroom, I would prefer to be 16 facing
Your Honor, if I could. 17 If
Your Honor please, we 18 have
no testimony to offer in the 19 support
of the motion to dismiss. We 20 take
the position that e-mails exhibited 21 stand
for the case either going up or 0008 1 going
down, and I'm not going to present 2 any
argument this morning with respect 3 to
the issue whether or not there was a 4 meeting. We
take the position there was 5 no
meeting, that there was no assembl- 6 age;
that there has been no violation by 7 any
party under the Virginia Freedom of 8 Information
Act. I'm going to leave 9 that
to the responsibility of the other 10 respondents,
but I would like to address 11 in
support of the motion to dismiss 12 whether
or not Mr. Withers was a parti- 13 cipant
in anything, and in support 14 thereof
I would just refer to the three 15 counts
contained -- the three surviving 16 counts. Mr.
Withers is not included in 17 the
count on an alleged Charlotte Street 18 meeting,
but just making reference to 19 the
three counts there that are called 20 e-mail
counts I take it what we are 21 talking
about is e-mail and the exchange 0009 1 of
e-mail. 2 Count
number 11; the 3 so-called
meeting on Committee Assign- 4 ments. Paragraph
numbered 99, I think 5 there
are two key words there, Your 6 Honor. One
word is exchanged. It says 7 during
the certain period a series of 8 e-mails
were exchanged between the 9 defendants. The
simple definition of 10 exchange
in any dictionary is give and 11 receive. 12 The
evidence shows by the 13 exhibits
presented that, after much 14 discovery,
all parties, the City through 15 its
staff, presenting this book of 16 exhibits. It
must be this -- well, this 17 large.
(Mr. Sokol demonstrating). It is 18 not
an exhibit that contains any e-mail 19 with
respect to Committee Assignments 20 sent
by Mr. Withers. So on that basis 21 alone,
the count fails because the 0010 1 petitioner
cannot prove, no matter what 2 kind
of testimonial evidence he may 3 think
he can produce or they may pro- 4 duce,
there is an absolute absence of 5 any
proof of an exchange; an exchange 6 inclusive
of the rendition or the send- 7 ing
of an e-mail by Mr. Withers with 8 respect
to Committee Assignments. 9 The
word discuss, 10 paragraph
number nine; e-mails exchanged 11 between
the defendants discussing. I 12 think
the plain definition of discussing 13 is
an affirmative participation. I have 14 something
to say germane to the subject 15 that
you wish to discuss. The proof is 16 that
e-mails were sent somewhere, sent 17 to
Mr. Withers. When Mr. Withers 18 received
them is problematic; when he 19 may
or may not have read them is 20 problematic. What
is not problematic is 21 that
he didn't discuss anything with 0011 1 anybody. He
didn't even say by e-mail, 2 thanks
for the e-mail that informs me. 3 He
said nothing. There is no e-mail in 4 this
file this wide where Mr. Withers 5 discussed
any matter involving Committee 6 Assignments. 7 There
is a rather 8 delicious
irony here, and that is the 9 Committee
Assignments that Mr. Withers 10 would
have liked -- I believe it is the 11 RADCO
and the Jail -- he didn't get. 12 That's
one other. 13 And
the only piece of 14 evidence
-- and it is not evidence, it 15 is
a point of information -- that 16 apparently
there was a telephone call 17 from
Mr. Withers to Mr. Beck, although 18 it
is not shown in the e-mails, where he 19 said
so-and-so can't -- he didn't even 20 say
so-and-so. He said to be on the 21 Library
Board you must be a resident of 0012 1 the
jurisdiction, which is a point of 2 information
and maybe of some utility, I 3 take
it it is, to the recipient. But 4 for
this, which is not an e-mail, which 5 is
not a meeting, the Petitioners would 6 charge
him with a willful violation of 7 FOIA
subject to a fine of a willful act? 8 This
doesn't even involve any subject 9 matter
other than a point of informa- 10 tion,
and it is not an e-mail and it's 11 only
to one person. 12 So
this count, there is 13 nothing
by way of any of the proof that 14 has
been offered through these exhibits, 15 which
would place Mr. Withers anywhere 16 in
the vicinity of harm's way by way of 17 a
willful violation of anything. 18 I
think there is also a 19 third
word; the word used in Your 20 Honor's
opinion you issued in ruling on 21 the
demurrers, when you said it comes to 0013 1 how
the e-mails are used. Well, use 2 implies
something affirmative, using 3 something
to engage in a course of 4 activity
or conduct. There is no proof 5 that
Mr. Withers used any e-mails at any 6 time. 7 And,
Your Honor, I could 8 make
the same argument, and I will with- 9 out
being so wordy, on the counts on C-V 10 Zoning. Was
there an exchange? Nothing 11 in
this box sent by Mr. Withers. Was 12 there
a discussion? Nothing in this box 13 where
Mr. Withers engaged in a discus- 14 sion. It
is problematic whether or not 15 Mr.
Withers even received and considered 16 information
because he did nothing and 17 there
was no reason for him to do 18 anything. 19 People
were sending him 20 things,
along with others, and there is 21 no
evidence that anything was done that 0014 1 had
any influence over any matter 2 relative
to Mr. Withers. 3 By
way of proffer on my 4 part,
Mr. Withers was looking to City 5 Staff
for assistance, not from any 6 outside
source. 7 Now
the last of these 17 8 counts
that were initially filed where 9 Mr.
Withers was made a defendant, the 10 last
has to do with historic preserva- 11 tion. And,
Your Honor, once again there 12 is
no exchange, there is no sending, 13 there
is no discussion, there is no 14 participation. Through
all this raft of 15 material,
through all the sometimes 16 seemingly
interminable depositions, all 17 this
distilled, with respect to Mr. 18 Withers,
is that he is a public 19 official,
that he and his wife have a 20 personal
computer; and I take it 21 intrinsic
to a personal computer is an 0015 1 e-mail
capacity, and that is it, Your 2 Honor. That
is it. As to be charged 3 with
a willful violation, and I will get 4 into
that later I expect, but looking at 5 these
three counts there is nothing, 6 nothing
beyond the e-mails, which would 7 support
the allegations as set forth in 8 these
three counts. 9 And
I ask, therefore, the 10 motion
to dismiss -- and I think one 11 reason
Your Honor, if I may presume to 12 say,
waited these several months to act 13 was
because Mr. Kaufman made a represen- 14 tation
that the discovery might produce 15 something
or he thought that it would, 16 that
would bring Mr. Withers into the 17 arena
of a participant in anything. 18 THE
COURT: That's correct, 19 Mr.
Sokol. 20 MR.
SOKOL: And Mr. Kaufman 21 came
forward with other e-mails that he 0016 1 supplemented. Those
e-mails did not 2 have
any fingerprints of Mr. Withers on 3 them
whatsoever under the three words 4 that
I used: Exchange, discussion, or 5 use. And
I, therefore, ask mercifully 6 at
this point that the motion to dismiss 7 be
granted and he no longer be a party 8 respondent. 9 THE
COURT: Mr. Kaufman. 10 MR.
KAUFMAN: I'm impressed 11 with
Mr. Sokol's rhetoric, but there are 12 a
few facts that are missing from his 13 presentation. 14 In
the first place, and 15 we
know this from Mr. Withers' deposi- 16 tion,
is that at some point during the 17 orientation
he was provided the FOIA 18 packet
that they are required by law to 19 be
given. And he doesn't really 20 remember
a whole lot about it, but he 21 does
remember he is not suppose to get 0017 1 together
with three or more people and 2 discuss
business. And I forget exactly 3 whether
he said get together or meet 4 with,
but something to that effect. 5 Second,
Mr. Withers said 6 in
his deposition he checks his e-mail 7 about
twice a week; and when his wife 8 goes
on much more frequently, when she 9 sees
he has gotten something she tells 10 him
about it and then he goes and checks 11 for
himself. So he should know, and 12 under
FOIA he is suppose to know that 13 you
are not suppose to get together and 14 talk
with people about City business 15 privately. 16 Now
as for Count 1, the 17 first
of the counts, Committee Assign- 18 ments,
specifically there is an e-mail 19 sequence,
it's nine or ten e-mails, 20 beginning
around the 2nd of July -- 2nd 21 or
3rd, I don't remember exactly -- and 0018 1 ending
on the 8th, involving who is 2 going
to be on the Library Board. 3 THE
COURT: I guess that has 4 to
do with the discussion in reference 5 to
Mr. Cameron? 6 MR.
KAUFMAN: Yes, sir. 7 THE
COURT: All right. 8 MR.
KAUFMAN: And there was a 9 lot
of discussion on that and actually 10 people
were posting -- in the e-mails 11 they
were saying who their vote was for 12 and
so on and so forth, like that. And 13 in
the course of that discussion Mr. 14 Withers
is getting a lot of these, and 15 right
at the end of that discussion 16 Mr.
Beck posts a message, Billy call me, 17 meaning
Mr. Withers. And there is a 18 jurisdictional
problem for Mr. Cameron, 19 he
doesn't live in the right area, and 20 that
ended it. And Mr. Withers said, 21 well,
Mr. Cameron didn't get the job. 0019 1 He
was, clearly, reading what he was 2 getting
and he acted on it. He used the 3 information;
he provided them with 4 information. Now,
admittedly, he didn't 5 provide
it by e-mail but he sure, lord, 6 was
reading those e-mails because he 7 acted
on it. 8 Now,
we contend, at least 9 in
part, that just as one can sit at a 10 City
Council meeting and not say any- 11 thing,
one can sit at an exchange of 12 e-mails
reading everything avidly, 13 digesting
information, and using the 14 information
without ever having to send 15 an
e-mail, we contend; and, therefore, 16 we
would oppose Mr. Withers being dis- 17 missed
as to the Committee Assignment 18 count
because he clearly participated. 19 He
read it, he absorbed it; he acted on 20 it
in some manner. And Mr. Cameron, who 21 had
three votes in the exchange right up 0020 1 front,
was never offered the position. 2 That's
participation. 3 As
for the C-V Zoning 4 count,
Mr. Withers admitted in his depo- 5 sition,
while he wasn't super interested 6 in
it, he did read everything and he did 7 review
-- I think that we will produce 8 it
separately, but there was a letter 9 that
was finally sent on the 7th -- 10 dated
the 6th of August and sent on the 11 7th
of August by Mr. Kelly, and that 12 draft
of that letter was circulated 13 around. 14 THE
COURT: You're talking 15 about
the letter sent to Virginia Tech? 16 MR.
KAUFMAN: Mr. Chandler. 17 THE
COURT: Yes; at Virginia 18 Tech. 19 MR.
KAUFMAN: That's right. 20 And
Mr. Withers admitted in his depo- 21 sition
that he had read it and he had 0021 1 reviewed
it. He found it interesting 2 and
presumably informative, but he 3 didn't
comment on it because, as he 4 said,
it was not something that really 5 had
him motivated to comment or anything 6 like
that. And he said the C-V Zoning 7 issue
is still before the Council. 8 Well,
if he read the stuff and it 9 informed
him, he participated in the 10 meeting. You're
participating in this 11 hearing,
Your Honor. You're not saying 12 anything;
you're making me talk. 13 THE
COURT: We will talk about 14 that
momentarily. 15 MR.
KAUFMAN: But, nonethe- 16 less,
one can sit in a meeting and not 17 say
a whole lot and still learn stuff 18 and
participate in the meeting by 19 learning. 20 There
is also some 21 internal
evidence in another e-mail 0022 1 where
there is a P.S. appended at the 2 bottom
by -- I think it was Mr. Kelly, 3 suggesting,
you know, that Tom, Billy -- 4 Tom,
presumably, being Mr. Fortune and 5 Billy
presumably being Mr. Withers -- 6 you
know, that the Celebrate Virginia 7 letter
is about to go out and give me 8 your
comments right away. Clearly, 9 people
knew that he was going to read 10 these
things and be informed. 11 By
the way, as a side 12 note
-- I almost forgot -- there is a 13 separate
aside in the Committee e-mails 14 in
which Mr. Beck sends a private e-mail 15 to
Mr. Withers saying essentially, hey, 16 review
who we want on these committees 17 here
and give me a call before the 18 meeting. Now,
that was, I think, July 19 7th;
and, of course, the Council meeting 20 when
everything was done was on the 9th. 21 But
back to Celebrate 0023 1 Virginia,
that's an ongoing process 2 about
which Mr. Withers informed himself 3 and
helped formulate the questions to be 4 asked. 5 Did
he help formulate 6 them
by taking an action? No. He read 7 them
and was informed by what people 8 were
saying and how they were framing 9 the
questions, and once the answers came 10 back
he was informed of the answers, you 11 know,
but the important part is the 12 framing
of the questions. It is well 13 known
that a lot of times the answer 14 will
depend on what the question is and 15 what
the premises are. And oh, by the 16 way,
Mr. Withers did admit in his 17 deposition
that he had seen Mr. Kelly's 18 forwarding
of Mr. Pates' private 19 response
about the e-mail letter and 20 Mr.
Pates' comments and suggestions for 21 them,
you know, before it went out. So, 0024 1 silent
acquiescence? Going and sitting 2 and
not saying anything but absorbing 3 and
learning, that is a participation. 4 One
can't simply sit there and be alone 5 and
yet be informed and not be said to 6 participate. 7 As
for the third of the 8 e-mail
counts there, the one on the 9 historic
preservation committee, all 10 that
work was done in about a ten-day 11 period
prior to August 13. August 13th 12 the
Historic Preservation Committee was 13 announced. The
preceding e-mails dis- 14 cussed
the Historic Preservation 15 Committee. They
even named names as 16 representatives
for who would be on it, 17 and
Mr. Withers knew about that. He had 18 seen
these e-mails and he says in his 19 deposition,
you know, I wasn't all that 20 involved
in that but Matt Kelly was real 21 involved
and these other guys were 0025 1 really
involved. If they want to have a 2 Historic
Preservation committee, I will 3 support
them, okay, and he knew it 4 before
going in because he had gotten 5 all
this stuff and he knew what was 6 going
on. 7 And,
in fact, the 8 Historic
Preservation Committee was, in 9 fact,
created with the same people on it 10 who
were proposed in that e-mail that 11 was
circulated to the five beforehand. 12 He
participated. He knew it was coming. 13 And
when it came, he was prepared to 14 support
it. He participated. He used 15 the
knowledge. He read it, he used it; 16 he
voted on it, and it is there. 17 So,
Mr. Withers is 18 involved. I
know he didn't want to be 19 necessarily,
but he was involved. He 20 didn't
protest. He didn't say, wait a 21 minute,
we need to do this in open 0026 1 session. All
this discussion preceded 2 and
he should have known about the FOIA 3 and
FOIA requirements. He was provided 4 that
no later than June 17, and he was 5 required
to read it and become familiar 6 with
it by the very terms of the statute 7 and
he didn't. Willful blindness? 8 Whatever. 9 But
we are going to prove 10 these
things, and Mr. Withers should not 11 be
dismissed from those three counts. 12 THE
COURT: For purposes of 13 this
motion, we accept your proffer as 14 being
fact. 15 MR.
KAUFMAN: Thank you, Your 16 Honor. 17 THE
COURT: Mr. Sokol, any 18 response? 19 MR.
SOKOL: Yes, Your Honor. 20 Mr.
Withers, as Your 21 Honor
knows, was elected for the first 0027 1 time,
began service July 1; he gets 2 something
from his Mayor. He has a 3 brain
and it comes in his e-mail. Is he 4 not
going to read it sometime? By 5 Mr.
Kaufman's reckoning and by his 6 lights,
if Mr. Withers was in a theater 7 and
someone yelled fire and Mr. Withers 8 understood
what fire meant and fled the 9 church,
he somehow becomes a participant 10 in
starting the fire. My brain cannot 11 fathom
the series of premises that 12 permits
Mr. Kaufman to reach the 13 conclusion
he has. 14 He
has not addressed 15 anything,
apparently giving it no 16 respect
whatsoever, the arguments that I 17 presented
in support of the motion with 18 respect
to an exchange, with respect to 19 a
discussion, with respect to use. He 20 is
entirely averting, disregarding, and 21 instead
says that by reason of the fact 0028 1 Mr.
Withers has an e-mail capacity like 2 I
suppose all computer users have, and 3 that
he informed Mr. Beck that a member 4 of
the Library Committee must be a 5 resident
of the jurisdiction, that that 6 violated
Virginia's Freedom of Informa- 7 tion
Act. 8 I
would be interested in 9 knowing
what the formulators of the 10 committee
that put together the Act in 11 Virginia
or any other jurisdiction would 12 think
about this kind of interpretation 13 as
a willful violation by means of, 14 what,
a telephone conversation to one 15 other
person. You know, why leave Beck 16 in
the dark if he knows something about 17 the
eligibility? It was an entirely an 18 exercise
in telling Mr. Beck what the 19 requirements
were. It was an act of 20 responsibility. The
public would expect 21 Mr.
Withers to do this if he knew it. 0029 1 It's
not public business; it's informa- 2 tion. It
is appropriate information. 3 It
doesn't present the gravamen for this 4 petition. 5 Mr.
Kelly sent something 6 and
he asked for certain things; 7 respond,
do this, what do you think? 8 That
was on the C-V, I think, the 9 rezoning. What
does the evidence show 10 by
way of the e-mail? Mr. Withers did 11 nothing. He
didn't respond. But by his 12 silence,
Mr. Kaufman and his Petitioners 13 would
find responsibility under the Act. 14 And
after a while, frankly, Your Honor, 15 I
kind of lost the drift of what Mr. 16 Kaufman
was saying. 17 I
ask that you grant the 18 motion. Thank
you. 19 THE
COURT: The Court has 20 reviewed
every single e-mail that was 21 generated
after July 1, 2002. 0030 1 The
Court being familiar |
