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Court Dismisses ‘Scheme’ Claim Against Town

A plaintiff who alleges the town of Washington, the Inn at Little Washington and a non-party, Trinity Episcopal Church, entered into a “scheme” whereby the Inn would receive $20,000 and conveyance of a public right-of-way, in exchange for the Inn performing a “Town Square Beautification Project” on property directly across from and abutting the Inn, does not have standing to pursue his claims of violation of the Virginia Conflict of Interest Act and the Virginia Public Procurement Act.

The complaint alleges defendant Patrick O’Connell, someone with a “personal interest” in the Inn and a member of the town council, received a benefit from the “scheme.” The alleged scheme consisted of oral agreements between the parties and a written agreement between the Inn and the Trinity Church regarding the use and improvements to the church parking lot.

Money was to be paid to the Inn (a “kickback”) by the church along with an appropriation by the town council to fund the project after advertisement as required by law. The “scheme” also included conveyance of a portion of the town street to the Inn, also approved after a public hearing.

Count I of the complaint alleges violation of the Virginia Conflict of Interest Act and the Virginia Public Procurement Act. Count II alleges a violation of Va. Code Sec. 15.2-953 which deals with donations to charitable institutions. Count III alleges violation of a number of Virginia Code sections addressing local legislation procedures pursuant to Va. Code §§ 15.2-2006, 2008 and § 15.2-2100(A).

The court sustains defendants’ demurrer based on standing.

Plaintiff alleges a number of facts as to all counts which he believes support standing. First, he alleges he uses the roadways in the town to access his mail and the courts where he makes his living as a lawyer. He claims only a brief inconvenience resulting from this project and not a denial of access to the courts and the post office. Second, he claims taxpayer status because he pays a meals and lodging tax, the town’s primary source of revenue. He does not set forth when and where he has dined or lodged in the town in support of this claim. Further, he conceded that he did not directly pay the bill, but that the business paid it after assessing him a charge.

As to Count II, he claims he is entitled to a relaxed application of standing principles, as this “scheme” implicates the Establishment Clause of the U.S. and Virginia Constitutions by the local government.

There are no allegations in the case at bar that any of the actions of the town would have any quantifiable financial impact on plaintiff. Also, reduced or changed physical access does not confer standing. There is nothing in the pleading which would bestow any type of justifiable interest in plaintiff.

In addition to the standing issue which is fatal to all counts, the Inn and O’Connell argue that Count I, pursuant to the Conflict of Interest Act, requires a “knowing violation.” Similarly, O’Connell and the Inn assert that the VPPA does not apply, as plaintiff was not a bidder or contractor on the project.

There was no written contract between the town and the church. The Inn had previously intended to perform the beautification project regardless of the action of the town council. There is no connection in the pleading between the actions of the town and the role of the church other than innuendo.

Count III alleges violations of procedural formalities including a failure of the town to petition the Commonwealth Transportation Board for permission to abandon the roadway pursuant to Va. Code § 33.2-908. The court previously identified standing as fatal to this case; however, were standing not dispositive, the demurrer would be overruled as plaintiff has identified sufficient procedural irregularities in the process to allow the matter to proceed.

Konick v. Town of Washington, Va. (Parker) No. 15-43, May 18, 2015; Rappahannock County Cir.Ct.; David L. Konick, pro se; David G. Fiske, Robert T. Mitchell Jr. for the parties. VLW 015-8-054, 5 pp.

VLW 015-8-054

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