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Analysis: Augusta County 6 brought legal scrutiny on itself with series of missteps

Chris Graham
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Augusta County leaders stumbled and bumbled their way into being on the wrong side of a circuit court order to turn over a copy of the recording of a March 20 Board of Supervisors closed meeting that a judge ruled last week was held illegally.

The closed meeting had been called, in part, to discuss the surprise resignation of then-South River Supervisor Steven Morelli, who was quietly, at the time, under fire for reported sexual-harassment allegations involving at least two county employees.

That fact, and the existence of the recording of the March 20 meeting, which was made by Wayne District Supervisor Scott Seaton, are both public knowledge directly as a result of the actions of the Augusta County 6, the six members of the Board of Supervisors who have tried to use the machinery of local government to try to punish Seaton for his oppositional political stances.

Series of missteps

The existence of the recordings, first, only became public knowledge because of a July 12 Board of Supervisors meeting in which the 6-1 majority of the board voted to censure Seaton for secretly recording closed sessions of the board for the past two years.

It was also at that July 12 meeting that the then-chair of the BOS, Michael Shull, confirmed the rumors that had been circulating in county circles for the previous several months regarding Morelli’s surprise resignation.

Confirming the rumors was not Shull’s intention. Shull was getting another dig in at Seaton, talking about how, after the March 20 resignation of Morelli:

“Several board members were asked about one case of sexual harassment, and I was asked that when I came right over here, several other board members were, too. And I thought, did they have a tin can against the wall listening to us there? How was that knowledge disclosed that quickly?”

The AC6 has repeatedly tried to blame the attention that has been placed on the Morelli resignation on Seaton, who they feel leaked information about the resignation.

To that end, Morelli himself, in September, submitted a request under the Virginia Freedom of Information Act to Seaton to try to get information on Seaton’s contacts with local media sources and political activists.

That request turned up nothing in terms of a smoking gun in relation to information regarding the Morelli resignation.

The 6 also propped up a political challenger to Seaton in his bid for re-election in the Wayne District, John Higgs, the owner of Barren Ridge Vineyards, who conceded that his late entry into the race came after a meeting with two members of the BOS, one of whom was confirmed to be Beverley Manor Supervisor Butch Wells.

Seaton cruised to re-election, winning with 67.3 percent of the vote in the two-way race on the November ballot.

The biggest mistake

So, the Morelli FOIA effort failed, the AC6-backed Higgs challenge at the ballot box failed, but the biggest failure of the 6, from a legal perspective, was the move by the BOS, at an Aug. 2 special meeting, to pass a resolution requesting possession of the recordings made by Seaton.

Seaton complied a week later, turning over copies of the digital recordings, but maintaining control and custody of the originals for himself.

The move by the BOS to obtain copies of the recordings would prove crucial in the separate legal challenges filed by Augusta Free Press and Breaking Through Media, both of which filed requests under the state FOIA law for access to copies of the recording of the March 20 closed board meeting.

The county government denied both requests, leading to appeals that have been winding their way through the local courts over the past several months.

In separate rulings dated Jan. 11, but just made public this week, Judge Thomas J. Wilson IV ruled that the recordings, “having been turned over to the County, are now County public records and no longer the private property of Dr. Seaton,” overruling an earlier ruling from Judge Rupen R. Shah, who in an Oct. 12 decision in the AFP case, which was heard in Augusta County General District Court, had declared that the recordings were not subject to FOIA because they were made by Seaton “for simply self-serving purpose,” and that they were “not a record of the agency nor is kept in a normal course of its business.”

The records, having been declared public records, and thus FOIA-able, led Wilson, writing for the Augusta County Circuit Court, to side, in the Breaking Through Media case, with the contention brought by the plaintiff’s counsel, Amina Matheny-Willard, that the county had illegally gone into closed session to discuss the Morelli resignation.

On this point, Matheny-Willard cited a 2020 Virginia Supreme Court decision, styled Cole v. Smyth County Board of Supervisors, in which the high court had sided with the petitioner, Cole, in a case involving a closed meeting of that board of supervisors held to discuss the possible closing of the county library system.

In that 2020 ruling, the court, in an opinion written by Chief Justice S. Bernard Goodwyn, observed that the relevant state code section, 2.2-3712(A), states that a “general reference to … the subject matter of the closed meeting shall not be sufficient,” and that “this prohibition against ‘general reference[s]’ is an implicit requirement that a motion effectively identify the subject matter to be discussed in the closed session. The Motions’ broad mention of ‘actual or probable litigation’ does not do so.”

The motion read and adopted by the Augusta County Board of Supervisors to go into closed session at its March 20 meeting was of the “general reference” variety, as County Administrator Tim Fitzgerald attested to in court testimony at a Dec. 21 hearing.

“(F)or the personnel exemption for the closed session, the County simply listed one of the subject matters as ‘Board of Supervisors.’ That statement is too cryptic, is merely a general reference to the subject matter, and does not contain the particularity I believe the statute requires,” Wilson wrote in his ruling in the Breaking Through Media case.

Next steps

The next step in the resolution of the case is an expected appeal from the county to the Virginia Supreme Court, which may or may not end up holding a hearing in the case, just based on the reasoning from Wilson, in citing the Cole precedent, which is only four years old at this stage.

For a hint at what may be on the recordings, we can examine in detail a phone call from Wells, the Beverley Manor supervisor, to me, on Dec. 22, a day after the hearing in the AFP and Breaking Through Media cases in Augusta County Circuit Court.

The call was in response to a new FOIA request that I’d filed after the court hearing in which I requested copies of texts and emails from members of the BOS and top county leaders referencing Morelli and also the name of one of the reported sexual-harassment victims.

Wells, in the 11-minute, 59-second phone call, repeatedly tried to get me to name the source of the information about the purported victim, making it clear on multiple occasions that he had “a file started,” insinuating that Wells, the former chief of police in Staunton, considered what he viewed as a leak to be a criminal matter.

Wells then later had to admit, in response to another FOIA request that I made to access the “file,” that the “file” did not, in fact, physically exist, but was rather a “mental” file.

Wells’ zeal to head off further revelations in the Morelli matter could signal that there is something on the recording that we’re about to get access to along the lines of what we’ve already come to know from revelations that came in response to two FOIA requests – one from AFP, the second from local government watchdog Scott Cline.

A series of texts from Wells to Morelli, dated March 20, revealed in the FOIA response from the county to Cline, had Wells commiserating with Morelli over the resignation.

“Yep- missed you !! I love you man ! Call me anytime and I’ll stay in touch. You made the right decision- don’t look back !! ❤️” Wells texted to Morelli, in a message time-stamped at 5:48:28 p.m.

Less than a minute later, at 5:49:12 p.m., Morelli got back to Wells.

“Thanks Butch I’m always here for you and Donna.”

Less than a minute later, at 5:50:03 p.m., Wells responded.

“Going out for a walk before my head explodes- I despise that woman!!!”

Seconds later, at 5:50:17 p.m., Morelli texted back: “Me too.”

The second FOIA response, to our Dec. 21 FOIA request, brought to light an email conversation between Wells and a man named Rick Pfizenmayer, the co-owner of Barterbrook Manor Farm, on March 21.

Pfizenmayer (March 21, 2023, 9:20 a.m.): Wow! Steve’s resignation sure came as a surprise to me as I had talked with him several times over the last couple of weeks and had every indication he was preparing to run again in November. Whatever some might say about him, he was a tireless worker on behalf of his district and his support of the community will be missed. I hope his sudden resignation isn’t due to worsening health.

Wells (March 21, 2023, 10:31 a.m.): 2 words: “Dirty politics” by 2 individuals !!!  Wish I could say more !!

Pfizenmayer (March 21, 2023, 11:23 a.m.): I have my suspicions.

Wells (March 21, 2023, 12:09 p.m.): And I’d bet you’d be right !!!

If these brief text and email conversations are any indication, the recording of the March 20 closed meeting could be quite revealing as to the efforts of the Board of Supervisors to try to manage the Morelli resignation and its aftermath.

And our push to learn more about the Morelli resignation, the reported sexual-harassment issue at the heart of the resignation, and what appears to be an effort at a cover-up by members of the Board of Supervisors won’t end there.

We have a new FOIA request in with the county for copies of texts and emails between county leaders regarding Morelli and the name of the one purported sexual-harassment victim that we’ve been made aware of covering the past nine-plus months.

Chris Graham

Chris Graham

Chris Graham is the founder and editor of Augusta Free Press. A 1994 alum of the University of Virginia, Chris is the author and co-author of seven books, including Poverty of Imagination, a memoir published in 2019, and Team of Destiny: Inside Virginia Basketball’s Run to the 2019 National Championship, and The Worst Wrestling Pay-Per-View Ever, published in 2018. For his commentaries on news, sports and politics, go to his YouTube page, or subscribe to his Street Knowledge podcast. Email Chris at [email protected].