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A judge reversed a previous court finding and ruled that Howard Spencer and the town did not violate the Virginia Freedom of Information Act in 2008.
Friday, May 3, 2013
Embattled Glen Lyn Town Manager Howard Spencer did not violate the Virginia Freedom of Information Act in 2008, a judge has ruled.
In a ruling last month, Giles County Circuit Court Judge Bobby Turk reversed a previous finding that Spencer and the town violated the act by failing to turn over a contract requested in 2008 by the Concerned Citizens of Giles County, a grass-roots watchdog group.
The group is unlikely to appeal Turk’s dismissal of the case, plaintiffs attorney John Robertson wrote in an email Thursday.
“I believe that in a situations in which there are problems with transparency in government, citizen’s groups like the CCGC are important to ensure that government is doing its job,” Robertson wrote. “I also believe that they will continue to hold their local government accountable until they can be assured that it is acting in its constituents’ best interests.”
Defense attorney Daniel Summerlin said in an interview this week that Turk dismissed the case after testimony by defense witnesses — former town secretary Pamela Dunn and NRV Magazine Publisher Phillip Vaught.
Dunn, who worked for the town during the time in question, testified that she did not recall typing up the contract. The job would have fallen to her, Summerlin said.
Vaught, who rented space nearby the town offices, said he assisted Spencer on the day in 2012 when he created the contract. Date-stamped evidence from Vaught’s cellphone was presented at trial, Summerlin said.
Summerlin said that in the end Turk ruled that the plaintiffs did not meet their burden of proof that the contract existed in 2008, and dismissed the case.
The Concerned Citizens took Spencer and the town to court last year after members said they found evidence that a 2006 contract they requested under the FOIA was withheld.
In 2008, the Concerned Citizens requested any document that had been created between the town of Glen Lyn and any individual or group about a parking garage in town. Vernon Kelley, a member of the citizens group, testified last year that the lease for the garage had not been included in the collection of documents the town turned over.
Spencer has said that the garage was leased under a verbal agreement at the time of the group’s first request, and that he did not have a written lease until 2012, after he received a second FOIA request from the group. Spencer realized after the second request that there should be a written contract, he said.
Spencer said he copied a garage lease from 2005 and marked the new lease as having been executed on June 6, 2006 – the date that town minutes say the Partnership for Excellence took over as the overseer of the garage.
The Concerned Citizens filed suit, accusing Spencer and the town of withholding the contract in violation of the state Freedom of Information law.
During the first trial Spencer was asked by plaintiffs attorney John Robertson if he and Glen Lyn Mayor Thomas “Rick” Ould signed the document on June 6, 2006. Spencer said they signed it in 2012, when it was created. But when the town’s attorney at the time, Richard Chidester, called Ould to the stand, the mayor testified that he signed the document back in 2006.
“I would say it was right around 2006, when it was wrote up, because we don’t put things off in Glen Lyn,” Ould testified.
Ould changed his testimony on April 24 before Turk, however. According to Robertson, Ould said under oath the second time around that he remembered signing the contract in March 2012.
Last year, Giles County General District Judge Gino Williams levied a $1,000 civil penalty against the town and awarded the citizens group $500 in legal fees for violating the FOIA. The Virginia Coalition for Open Government awarded the group its 2012 citizens FOIA award.
Spencer and the town appealed the case to the Circuit Court. Turk reversed Williams’ ruling last month and dismissed the case.
Ould has since had court hearings of his own. Last month, he was sentenced to five months in jail for firing a handgun into the air and putting the gun to the head of his wife during a domestic incident. Ould was put on supervised probation for two years and was ordered to participate in a mental health evaluation, complete mental health treatment, continue taking Alcoholics Anonymous classes and have no contact with his wife.
Ould’s status as mayor was not available Thursday.
The Concerned Citizens of Giles County was founded in opposition to another Partnership for Excellence project headed by Spencer that used coal ash from the Glen Lyn power plant as fill material in a development project along the New River in Narrows. Construction on the project was completed in 2010.
The Concerned Citizens have continued to look into projects Spencer and the Partnership have executed in cooperation with Giles County governments, and claim they have found discrepancies. The group has complained to the Internal Revenue Service and the Virginia State Police.
State police spokeswoman Corinne Geller said in December that the agency had opened an investigation into citizen complaints against Spencer and the Partnership for Excellence. Geller could not be reached for comment this week, so the status of that investigation is unclear.
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