How to make an investigation part of a cover-up and a stonewalling

    421
    2
    SHARE

    ( – promoted by lowkell)

    You may or may not have read or heard about Loudoun County Supervisor Eugene Delgaudio. He’s the only head of a recognized hate group (he runs the anti-gay group The Public Advocate of the United States) who currently holds elected office.

    He serves as the Sterling District Supervisor on the all-Republican Loudoun County Board of Supervisors. The current Chair is Scott York, seen in this picture hugging Eugene.

    Eugene Delgaudio has recently gotten press in the Washington Post (among other places) for firing a staff member because she reported him for using her to do fundraising calls for him, for setting a Public Advocate staff member as her supervisor, and for a host of other no-nos.

    Over the last week, I’ve had quite a bit of back-and-forth with Loudoun County staff over FOIA requests I’ve sent to them regarding Scott York’s communications with Jim Plowman about Eugene Delgaudio’s misdeeds. I posted about it over at my blog, but thought you all might like to see a cover-up in action.

    On October 2, 2012, I sent this FOIA request to Scott York:

    Mr. York,

    This is a FOIA request, made under the applicable part of the Code of Virginia, for a copy of the complaint referred to (that is, “the complaint filed against Mr. Delgaudio”) in your public statement of

    October 2, 2012. The relevant excerpt from your statement follows:

    When the Board’s leadership team was made aware of these allegations against Supervisor Delgaudio, we asked that the complaint filed against Mr. Delgaudio be given to the Loudoun County Commonwealth Attorney Jim Plowman for review.

    Please send this material to this address:

    [My address]

    Elizabeth Miller

    The next day, I got this in return, (below the fold)

    Ms. Miller,

    The information you have requested is exempt from FOIA under the provisions of Va. Code § 2.2-3705.1(1) (personnel records) and Va. Code § 2.2-3705.3(3) (employment discrimination complaints).

    Please contact me directly with any questions.

    Sincerely,

    Jennifer Grimmell

    FOIA Officer/Assistant Deputy Clerk

    Loudoun County Government

    Office of the County Administrator

    MSC 02, 1 Harrison Street, SE

    Leesburg, Virginia 20175

    703-777-0201

    jennifer.grimmell@loudoun.gov

    I immediately responded (so, on October 3),

    Dear Ms. Grimmell,

    The sections you have cited of the Freedom of Information Act do not exempt the information I have requested from disclosure under the Act.

    With respect to § 2.2-3705.1(1) (personnel records): A complaint filed with county employees is not a personnel record. The Act provides no definition, but it is obvious that the records referred to by that

    phrase (“personnel records”) are those maintained by an employer about employees. Here, the item referred to is a complaint by an individual who is not even subject to county Human Resources management. As such, any document received by the county from such person cannot be characterized as a “personnel record.” It is a complaint made by that person, not by their employer nor by Human Resources. Moreover, your citation to § 2.2-3705.13(3) (employment discrimination complaints),

    shows that you, yourself, recognize that this item is a complaint, and, therefore, is not governed by § 2.2-3705.1(1) .

    With respect to § 2.2-3705.3(3) (employment discrimination complaints): The section you cite explictily refers to an “active investigation.” The chairman of the board of supervisors has publicly

    stated that the Commonwealth’s Attorney asked to consider the complaint has decided to take NO action on it.  Accordingly, it is now an “inactive report,” as that phrase is used by the section you cited.

    The section specifically states that, “nothing in this section shall prohibit the disclosure of information taken from inactive reports in a form that does not reveal the identity of charging parties, persons

    supplying the information or other individuals involved in the investigation.”

    Accordingly, I reiterate my request for the complaint, but will accept it redacted in a form that does not reveal the identity of charging parties, persons supplying the information or other individuals

    involved in the investigation.

    All my best,

    Elizabeth Amy Miller

    Today, Ms. Grimmell responded,

    Mrs. Miller,

    On October 3, 2012, the Board of Supervisors voted unanimously to hire an outside party to investigate the allegations of violating County policy by a Board member. Please note that the records you have requested are exempt from FOIA under the provisions of Va. Code § 2.2-3705.1(1) (personnel records) and Va. Code § 2.2-3705.3(3) (employment discrimination complaints).

    I have attached a copy of the Copy Teste-Violation of County Policy Investigation for your files.

    Do you get the joke? Here’s the time-line:

    1. Mateer files a complaint. She goes to York with it. Plowman sends it to the Arlington CA.
    2. While in the hands of the Arlington CA, the investigation is “active,” so complaint cannot be FOIA’ed.
    3. Arlington CA sends it back, saying he can’t act. Investigation is now “inactive.” So the complaint can be FOIA’ed.
    4. York passes vague motion to investigate unspecified allegations of violations of county policy. Investigation is now “active,” again, so complaint cannot be FOIA’ed.

    Do you see also that the item was captioned as being about staff aides?

    • Nothing about asking for donations while meeting with applicants.
    • Nothing about violations of conflict-of-interest laws.
    • And (perhaps most importantly) nothing about violating state or federal law in the hiring, firing, or workplace conditions of staff aides. That’s because York knows, from the work of the prior board, that there are no policies governing how a supervisor treats his or her staff aides.

    The investigation will come back with a report of “no violations of county policy” because that’s the only thing being investigated, and there are no policies to violate.

    Where’s the specific instruction to consider violations of Title VII of the Federal Civil Rights Act, which prohibits workplace discrimination on religious grounds? Unless a “policy” exists that the BOS must follow federal law, there won’t be any violation of “policy” on that, either.

    Jennifer Grimmell has provided me with a record that shows that the investigation itself is actually part of the cover-up by giving staff a reason to be able to say the complaint is part of an active investigation, so is not subject to FOIA.

    So, feeling a bit frustrated, I spent a little while yesterday looking at the actual item that the BOS passed on October 3, which reads,


    BOARD OF SUPERVISORS

    ACTION ITEM

    BOARD MEMBER INITIATIVE

    AMENDMENT

    # 16

    SUBJECT: Investigation of possible violation of county policy governing Board of

    Supervisor staff aides.

    ELECTION DISTRICT: Countywide

    STAFF CONTACT: Robin W. Bartok, Staff Aide to Chairman York

    RECOMMENDATIONS: Chairman York recommends approval.

    BACKGROUND: Due to recent allegations of misconduct by a member of the Board of Supervisors the Chairman is recommending the Board give direction to the County Attorney to retain an outside party to  investigate these allegations. Additionally, the Chairman would recommend that the County Administrator be given direction to support the County Attorney in procuring these services on behalf of the Board.

    FISCAL IMPACT: County Attorney has advised that such investigation could cost between $5,000 to $25,000.

    DRAFT MOTION(S): “I move that the Board of Supervisors direct the County Attorney to hire an outside party to investigate the allegations of violating county policy by a Board member and report back to the Board at the conclusion of the investigation, and I further move that the Board approve up to $15,000 to conduct this investigation.”

    After reviewing it, I sent this email to Jennifer Grimmell:

    Ms. Grimmell,

    Thank you for providing the copy teste of the board’s vote of October 3, 2012.

    Nowhere in that record is any reference made to anything in particular, certainly not to any complaint submitted from Ms. Mateer to Mr. York. Accordingly, I ask how you are able to draw the conclusion that the motion referred to anything described in my FOIA request. No specific document is named in the motion. No specific author of any document is named in the motion. No specific recipient is named in the motion. No specific complaint, nor any specific allegation is named in the motion. No specific individual, including

    Mr. Delgaudio, is named in the motion. Reference by the county to this vague, general, imprecise motion in no way invokes the status of  “active investigation” with respect to any particular document, including that which I have requested. I also ask how you are able to draw the conclusion that a document provided by a board member’s staff aide to the chairman of the board is a “personnel record.”

    I reiterate my previous FOIA demand. Further, under the applicable part of the Code of Virginia, I now also demand the following:

    1. Any and all documents used by you, the county attorney, and the county administrator (either individually or by any one or more of you) in making the determination that the board’s direction of October

    3, 2012, referred to any particular complaint, any particular supervisor, or any particular document.

    2. Any document, other than those described in Item 1, above, used by you, the county attorney, and the county administrator (either individually or by any one or more of you), in making any determination as to the purpose, subject matter, or individuals relevant to the direction by the board in its October 3, 2012 vote, including, but not limited to, notes of conversations, e-mail, text messages, paper records, or any  other document.

    Respectfully,

    Elizabeth A. Miller

    And a few hours later, I got this in reply:

    Ms. Miller,

    With respect to your FOIA request of October 2, 2012 wherein you requested “a copy of the complaint referred to (that is, ‘the complaint filed against Mr. Delgaudio’)”, please note that Loudoun County stands by its earlier response to you (noted at the bottom of this email) that the documents requested are exempt from the provisions of FOIA.

    In addition, Loudoun County has no documents responsive your follow-up request of earlier today (also noted below).

    Sincerely,

    Jennifer Grimmell

    FOIA Officer/Assistant Deputy Clerk

    Loudoun County Government

    Office of the County Administrator

    MSC 02, 1 Harrison Street, SE

    Leesburg, Virginia 20175

    703-777-0201

    jennifer.grimmell@loudoun.gov

    Blink.

    Wait a minute. What?

    Not a single document discussing what the motion means? Not a single email back and forth about how to instruct an investigator, when the motion itself is so generic?

    I am not buying this.

    Why are they being so unresponsive? What else are they trying to hide?

    • Va Breeze

      The fact that the county is spending $15,000 on this-is there disclosure that they have to give to justify the expenditure?

    • Very, very good question. I find it rather hard to believe that a full week after being directed to hire an investigator there are absolutely no written documents about who to hire, or what directions to give.