At the 59-second mark of an 11-minute, 59-second phone call on Friday morning, Butch Wells, member of the Augusta County Board of Supervisors, trying to intimidate me, I would soon come to realize, into giving him the name of a person who would have given me information that I had included in a Freedom of Information Act request made to the county on Thursday, told me, forebodingly, that he had “a file started.”
My natural question back: “You’ve got a file started?”
Wells’ cryptic response: “Oh, yeah, oh, yeah, I’ve got a file started. They’re playing, they’re playing political games. I don’t play political games. I play criminal games. And, yeah, I’ve got a file started.”
As the conversation played out, Wells would not answer questions directed back at him about who “they” are, and left to interpretation what his “criminal games” might involve.
Background
The threatening phone call came less than 24 hours after a circuit court judge heard arguments in separate cases brought by Augusta Free Press and Breaking Through Media challenging the county’s denial of FOIA requests made in August for access to digital copies of recordings of a March 20 closed meeting of the Board of Supervisors.
The closed meeting has become the focus of public scrutiny because it has since become known that supervisors used the cloak of the closed doors to discuss the resignation of Steven Morelli, who was, until that morning, the elected member representing the South River District on the board.
It later became known, through an offhand admission by Michael Shull, the chair of the Board of Supervisors, at a July board meeting, that the Morelli resignation was tied to sexual-harassment allegations.
The legal battle over the March 20 meeting recording came about after the Board of Supervisors voted to censure Wayne District Supervisor Scott Seaton in July, after Seaton had revealed that he had been recording the board’s closed sessions for the past two years.
The Board of Supervisors, on Aug. 2, voted to request that Seaton turn over his recordings, and Seaton, in response, invited members of the local media and the general public to make requests under the state’s FOIA law to gain access to their contents, ahead of giving over copies of the recordings to the board a week later.
The legal battle
The county’s response to another FOIA request, made by local government watchdog Scott Cline, played a major role in advancing the public knowledge of what transpired in that March 20 closed meeting.
The county, in its legal defense of the FOIA denials, has made the claim that Morelli didn’t resign his seat until 1:12 p.m. on March 20, less than 20 minutes before the scheduled 1:30 p.m. start of the Board of Supervisors meeting held that day.
The timing of the resignation against the scheduled start of the board meeting, the county claims, resulted in members of the Board of Supervisors not knowing about the resignation before going into the meeting, and then voting to go into a closed meeting.
This is according to testimony in court on Thursday from County Administrator Tim Fitzgerald, who asserted, in response to a question from the county’s legal counsel in the FOIA case, Rosalie Pemberton Fessier, that board members, to his knowledge, weren’t aware that Morelli had resigned before the closed meeting.
But texts made public, in the FOIA response to Cline, between Morelli and two members of the board, Gerald Garber and Jeffrey Slaven, time-stamped at 11:08:30 a.m. and 11:10:18 a.m. on March 20, more than two hours before the scheduled start of the meeting, had Morelli telling those two that he had resigned his seat.
A third exchange uncovered in the county’s FOIA response to Cline, between Morelli and Wells, which began at 4:55:43 p.m. on March 20, indicates that Wells had also known of Morelli’s intent ahead of time.
I submitted the text exchanges as part of my evidence in the case, to rebut the county’s claim that the resignation should still be considered as to have been in limbo at the time of the closed meeting, which would, then, according to the county’s legal reasoning, would allow the Board of Supervisors to discuss Morelli’s status as a current board member behind closed doors.
Fessier challenged the admission of the text evidence, questioning the legitimacy of the texts as having been part of the separate FOIA request made by Cline.
Judge Thomas J. Wilson IV ordered the county to take steps to authenticate them, and after a lengthy recess, and initial word from the county that they could not be authenticated, I called Jennifer Whetzel, the county’s deputy administrator and chief FOIA officer, to the witness stand.
As Whetzel was answering questions on the stand, the texts were authenticated.
Coincidence, no doubt.
‘Can you tell me how you got that name?’
Following Thursday’s court hearing, I submitted a new FOIA request to the county aimed at trying to learn more about discussions regarding Morelli involving members of the Board of Supervisors and top county government officials ahead of the March 20 meeting.
The FOIA request focused on several search terms – “steve morelli,” “steven morelli,” “morelli,” “the morelli situation,” “agenda,” “closed meeting,” and the name of a now-former county employee whose name has surfaced as having been a possible sexual-harassment victim.
For obvious reasons, we won’t share the victim’s name here.
The reason for Wells’ phone call: he wanted to know how I’d come to know the victim’s name?
“If you don’t want to tell me, just say you don’t want to tell me, but I got a good feeling I know how you got it, and I just wanted to confirm it. Because I’ve got a file started,” Wells said, getting us back to where we started the telling of this story – the specter of “criminal games.”
What Wells was getting at there was made clear later in the call.
“I think you were sitting in court the day Judge Shah said that he felt like there was a criminal act involved. That got my attention,” Wells said, misstating the proceedings in the first hearing of my FOIA case, held on Sept. 5 in Augusta County General District Court.
Fessier, in her role as advocate for the county, continually raised the notion that Seaton, in recording the closed meetings of the board, might have committed a crime – though, significantly, the Board of Supervisors itself had already weighed in on that exact issue, and in the other direction, in its July 12 censure vote.
“The members of the Augusta County Board of Supervisors recognize that the recording during the closed meeting is not illegal, and that Dr. Seaton has not violated any laws, by doing so. They nevertheless wish to express their grave concerns on the secret recording and public sharing of information that has been discussed during their closed meetings,” the resolution read, according to a transcript of the July 12 meeting.
Wells, who voted in favor of the resolution to censure Seaton, which, again, the wording above should make clear, the board did not consider the recordings to be illegal, nonetheless is now posturing as if he’s pursuing the already-settled issue that, if he really has “started a file,” he has apparently single-handedly decided is a criminal matter.
Intimidation
Wells could have just called the person that he seems to think was the source of the information as to the victim’s identity – he mentioned Scott Cline, the watchdog, by name in the call.
That he didn’t just call Cline came across to me as his phone call being about something else.
Per the transcript of the call:
CG: You called me to badger me. You called me to threaten criminal stuff. I take that, I’ll take that, I’ll take that the way it was intended. This was, this was an intimidating phone call.
BW: No, it wasn’t. I didn’t start out as an intimidating phone call. I asked you a simple question, and you turned it into it. I didn’t. I answered your questions. You didn’t answer my question.
CG: The recording will indicate that this was an intimidating phone call. We’ll let the people judge.
BW: OK. Yeah. I knew I’d be recorded, so I didn’t say anything that bothers me.
CG: That’s fine. Yeah. If it doesn’t bother you to call a reporter and intimidate a reporter, that’s, that’s, good for you. It says a lot about it says a lot about the folks …
BW: I had no intentions of intimidating you. I just asked you where you got that name from.
CG: And I’ve asked you, you, you who seem to be a paragon of answering questions, talking to me about answering questions, I’ve asked you repeatedly, why does that name mean anything to you?
BW: OK.
CG: And so you don’t want to answer that question, even though it’s important enough to call me and ask me about that.
BW: You didn’t call me to ask me that question. You asked me that question because I call you gonna ask you this question.
CG: I didn’t know what question you wanted to ask. You had a simple question, to ask a simple question, and the question for me is, why does that name mean anything to you?
BW: Yeah, it means a lot to me.
Final word
Following the phone call, I filed another FOIA request to the county.
I am requesting a copy of a file that Butch Wells told me today (Dec. 22, 2023) that he has started – he described it as a “criminal file” – related to my ongoing legal challenge to the county’s denial of my Aug. 4 FOIA request for a digital copy of the recording of the March 20, 2023, Board of Supervisors meeting.
This “criminal file” is a public record, per the state’s FOIA law.
Kathleen Keffer, the assistant county attorney, responded:
We reached out to Mr. Wells for any records that might be responsive to this request. He informed us that he does not have a physical file. Thus, under the Virginia Freedom of Information Act, there are no records responsive to your request.
Of course, the wording there – “physical file” – got my attention, so I sent a followup.
Follow-up question: you state that Mr. Wells responded that he does not have a “physical file.”
The specific wording is suspicious.
I now am requesting a copy of any files, physical or digital, of the “criminal file” that Mr. Wells told me today that he has started in relation to my Aug. 4 FOIA request, and my Dec. 21 FOIA request to the county, which was the direct subject of his phone call to me today.
The response, from Keffer:
To be clear, Mr. Wells indicated it was a “mental” file. “Physical” as I stated it in my message to you was not intended to describe the format of the file. It was meant to denote that there is no such file in existence. I apologize for any confusion caused by my word choice.
Thus, under the Virginia Freedom of Information Act, there are no records responsive to your request.
So, there’s no “criminal file”?
What the heck is a “mental file”?
Weird.
But he wasn’t trying to intimidate me by saying that there was.
Listen
Transcript
Call begins: 10:44 a.m., Friday, Dec. 22, 2023
CHRIS GRAHAM: Hello. Hi, Butch. This is Chris Graham with Augusta Free Press.
BUTCH WELLS: Hey, Chris, how are you?
CG: Good. I’m sorry. I’m calling so late. I know you called earlier this morning.
BW: Not a problem. Just an early riser. Just got a quick question. Yesterday evening, according to Timmy, you filed another FOIA request?
CG; I did.
BW: There was a young lady’s name in that FOIA request. Can you tell me how you got that name?
CG: It’s been all over the place for months. That’s how I got that name. I couldn’t even tell you …
BW: How did you, how did you get that name?
CG: Well, I know that …
BW: If you don’t want to tell me, just say you don’t want to tell me, but I got a good feeling I know how you got it, and I just wanted to confirm it. Because I’ve got a file started.
CG: You’ve got a file started?
BW: Oh, yeah, oh, yeah, I’ve got a file started. They’re playing, they’re playing political games. I don’t play political games. I play criminal games. And, yeah, I’ve got a file started.
CG: What … who are they?
BW: I just wanted to know what your source was for using that young lady’s name.
CG: Who are they?
BW: You’ll find out when it starts. So, you’re saying you don’t want to tell me?
CG: I’m saying that I can’t even …
BW: You didn’t even hesitate yesterday to say where you got those text messages from. You said Scott Cline.
CG: Yeah.
BW: I was going to give you, I was going to give you the chance to say where you got this young lady’s name that you put in that FOIA request.
CG: Yeah, I will tell you that that name has been all over the place, and I couldn’t tell you the first place I heard it, because it’s been out there since March.
BW: OK, but you’re saying it’s been all over the place? Well, where are some of the sources that you got her name?
CG: Where are some of the sources that I got her name? Gosh, I got … you want me to tell you the numerous texts I got that at the time before he even resigned who was telling me these things?
BW: Who did those texts come from, yeah.
CG: So, tell me why it’s appropriate that Tim Fitzgerald told you last night that I filed a FOIA request and that name came up.
BW: Any board member’s, any board member’s privy to that FOIA request, any board member’s privy to a FOIA request that comes into our government.
CG: Let me ask you about that name, then. Why is that name significant to you?
BW: We’re not gonna go there. I’m just asking you where you got that name?
CG: I’m asking you why? Because that name is something that, it seems like you’re confirming to me that that name is significant.
BW: No, I’m not confirming you. I asked you a question. Where did you get that name?
CG: You called me to threaten me with something criminal because of that name. So now I’m asking you why that name was significant.
BW: No, I didn’t. You asked me. I was responding to your question. You asked me why. And I told you why i said I started my file.
CG: OK.
BW: And that’s not a, that’s not a threat. You don’t want to answer, you don’t want to answer it.
CG: That’s not a threat?
BW: No, it’s not. I’m just telling you, I started a file.
CG: And now I’ve started a file.
BW: You’re not, you’re not even involved in this, Chris. You’re not the one I’m starting a file on.
CG: Apparently, I am.
BW: Do you know where you got that name? And why it was just her.
CG: Because that name, obviously, the fact that you’re calling me and badgering me on this is a sign that that name is important.
BW: I’m not badgering you, Chris, I’m just asking you a question.
CG: You just called me, you just called me to tell me that you’re starting a criminal file against somebody.
BW: You told, you said it yesterday in court. You didn’t have any problem yesterday in saying you got, when the judge asked you where you got those texts, you said, Scott Cline.
CG: Yeah.
BW: OK, and that’s all I’m asking you today is, you put that lady’s name in the FOIA request, where did you get her name?
CG: Why is that name important?
BW: Never mind. You’re not gonna answer me.
CG: Yeah. Why would I? Why would I answer you? Because again, this name has been out there for months. OK? Michael, Michael Schull talked about this.
BW: That’s your response to my question. It’s been out there for months.
CG: Yeah.
BW: You have any idea how it got out there?
CG: Um, how it got out there?
BW: If I had heard different things all these months, I would know the source of where it came from. I’d be able to say, Chris, I heard it from so and so, I heard it from someone. I wouldn’t say, oh, it’s just been out there for months.
CG: I’ve corroborated …
BW: I’m just trying to get an answer to that, when …
(crosstalk)
CG: So, when you hear a name or any supposed fact one time, it’s not a fact until you hear it repeatedly, you know, from … In my case, so that’s, that’s how I can’t report one thing, if one person tells me one thing, they could certainly be lying, they could have different reasons for saying things. So, then you check around, hey, what, what have you heard? And honestly, this was not even something that until Michael Shoal in July, said during the Board of Supervisors meeting, that the March meeting was about sexual harassment, that wasn’t even on my radar. We were writing about the animal shelter, we were writing about police and body cams. Michael, inadvertently …
BW: That’s not what I’m talking to you about? I’m just asking you a simple question.
CG: Well, it’s not a simple answer. Because again, you hear you hear one person say one thing, that doesn’t mean anything. You have to, you have to be able to check with people and get two, three, four, and then when all of a sudden you hear the name repeatedly, that’s when …
BW: What I’m asking is, where did you hear from? Because I will go to that source and say, where did you hear from?
CG: Are you subpoenaing me for something? I mean, now, I’m not going to be, I’m not going to be, I’m not going to be, I’m not even thinking of the word snitch here. It’s not, you can investigate however you want to investigate. You’re a member of the Board of Supervisors, I’m gonna have to ask Tim now …
BW: You’re not making sense with what you said yesterday in court and now what I’m asking you today. You didn’t have any problem saying, I got those text messages from Scott Cline.
CG: Because that’s where the text messages came from.
BW: I’m asking you where you got this lady’s name from?
CG: Are you a judge? In court yesterday, he asked me, the judge asked me a question, where did these text messages come from? That’s the honest answer. That’s what the text messages came from.
BW: I thought you’d offer up where the name came from. So, if you don’t want to, just OK, that’s fine. This has been fine. You’re not going to upset me if you say, I don’t want to tell you, just say I don’t want to tell you.
CG: I’ve been saying everything I can that I don’t want to tell you, because I have had, I have had numerous people say that name to me, and that’s the only reason it rose to the level of, I better put that in the in the Freedom of Information Act request.
BW: OK, well, who were some of the numerous people. You want to name any of them?
CG: I do not want to name any of them. How many, how many reporters have you ever dealt with?
BW: All I wanted you to say is you didn’t want to name any of them.
CG: No, because reporters don’t reveal their source. They don’t, I don’t, I don’t feel, I don’t feel obliged to reveal a source to you, as a member of the Board of Supervisors who started this conversation saying you wanted to start a criminal file.
BW: No, I’ve already started it.
CG: Well, good. I’m not going to add your criminal file.
BW: You’re not even part of it.
CG: I’m not going to add to your criminal file.
BW: OK. OK.
CG: Why is that name important to you?
BW: Because you included it in the FOIA request. How did you come about using her name?
CG: Why would it matter if I used her name?
BW: I’m just asking you.
CG: I’m asking you why. Why does it matter that I used her name?
BW: Because you made the request.
CG: Were you asking, were you among the people telling Steve Morelli to step down from the board?
BW: That doesn’t have anything to do with what I’m asking.
CG: That has everything to do with what I’m asking you. I was going to ask you that question …
BW: I can’t comment on that because it was in closed session.
CG: I was going to ask you that question yesterday, if the county had not intervened and pretended that what they couldn’t find for 45 minutes was suddenly found.
BW: Alright, after yesterday, I thought you might say who gave you that lady’s name. After listening to you in court, I said, well, I’ll give Chris a call and see where he came up with that name.
CG: And the first thing you said was, I’m starting a criminal file.
BW: No, that’s not what the first thing I was. You asked me why, and I told you, I don’t play political games. I played criminal games.
CG: Good. I’m not going to participate in your bogus criminal investigation.
BW: I think you were sitting in court the day Judge Shah said that he felt like there was a criminal act involved. That got my attention.
CG: He did not say that. The attorney for the county said that.
BW: No, the judge said it. I was sitting there.
CG: I was sitting there closer than you were. The attorney for the county said that repeatedly.
BW: Well, I triple checked it after I left there. And that is what the judge said.
CG: Did you read the judge’s ruling?
BW: Chris, I didn’t call you to argue with you or even go into all of this stuff. I just said, where do you get the lady’s name? And obviously you don’t want to tell me, so that’s OK. No hard feelings.
CG: Oh, there are hard feelings. There are hard feelings.
BW: Oh, OK.
CG: Yeah, there are hard feelings.
BW: Not on my part.
CG: There are hard … because you called me to badger me. You called me to threaten criminal stuff. I take that, I’ll take that, I’ll take that the way it was intended. This was, this was an intimidating phone call.
BW: No, it wasn’t. I didn’t start out as an intimidating phone call. I asked you a simple question, and you turned it into it. I didn’t. I answered your questions. You didn’t answer my question.
CG: The recording will indicate that this was an intimidating phone call. We’ll let the people judge.
BW: OK. Yeah. I knew I’d be recorded, so I didn’t say anything that bothers me.
CG: That’s fine. Yeah. If it doesn’t bother you to call a reporter and intimidate a reporter, that’s, that’s, good for you. It says a lot about it says a lot about the folks …
BW: I had no intentions of intimidating you. I just asked you where you got that name from.
CG: And I’ve asked you, you, you who seem to be a paragon of answering questions, talking to me about answering questions, I’ve asked you repeatedly, why does that name mean anything to you?
BW: OK.
CG: And so you don’t want to answer that question, even though it’s important enough to call me and ask me about that.
BW: You didn’t call me to ask me that question. You asked me that question because I call you gonna ask you this question.
CG: I didn’t know what question you wanted to ask. You had a simple question, to ask a simple question, and the question for me is, why does that name mean anything to you?
BW: Yeah, it means a lot to me. So …
CG: I understand. And I know why it means a lot to you.
BW: How do you know that?
CG: How would I know that?
BW: How do you know that?
CG: I know that it means a lot to you.
BW: See, these are these are kind of games that I’m talking about. So, you don’t want to tell me. That’s OK. And you’re not the only one. Never mind. This is not gonna go anywhere. Sorry I wasted your time. I thought after yesterday that you just might say, well, this is where I got it.
CG: Why would you …
BW: So, I understand. I understand.
CG: Yeah, and now I’ve got to call Tim Fitzgerald. OK, so, thanks for calling me, or thanks for calling earlier. Yeah, I appreciate that.
BW: OK.
CG: Alright, thanks.
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