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The role of the Attorney General’s Office in Soil & Water Conservation Districts Paul Kugelman, Jr. Assistant Attorney General (804) 786-3811

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Presentation on theme: "The role of the Attorney General’s Office in Soil & Water Conservation Districts Paul Kugelman, Jr. Assistant Attorney General (804) 786-3811"— Presentation transcript:

1 The role of the Attorney General’s Office in Soil & Water Conservation Districts Paul Kugelman, Jr. Assistant Attorney General (804)

2 Basic Roles Advice for civil legal matters Representation in litigation Will also discuss attorney-client privilege, COIA & FOIA

3 Overview of AGO Representation There are three statutes that address the Attorney General’s Office’s representation of Soil & Water Conservation Districts: Va. Code § Va. Code § Va. Code §

4 Overview of AGO Representation Va. Code § (A) The soil and water conservation district directors or districts may request legal advice from local, public, or private sources; however, upon request of the soil and water conservation district directors or districts, the Attorney General shall provide legal service in civil matters for such district directors or districts.

5 Overview of AGO Representation Va. Code § The Attorney General shall represent and provide consultation and legal advice in suits or actions under this chapter upon request of the district directors or districts. Note: This section falls within Title 10.1 (Conservation), Subtitle I (Activities Administered by DCR), Chapter 5 (Soil & Water Conservation).

6 Overview of AGO Representation Va. Code § The Attorney General shall provide the legal defense against any claim made against any soil and water conservation district, director, officer, agent or employee thereof (i) arising out of the ownership, maintenance or use of buildings, grounds or properties owned, leased or maintained by any soil and water conservation district or used by district employees or other authorized persons in the course of their employment, or (ii) arising out of acts or omissions of any nature while acting in an authorized governmental or proprietary capacity and in the course and scope of employment or authorization.

7 Advice Seeking Advice The soil and water conservation district directors or districts may request legal advice from local, public, or private sources; however, upon request of the soil and water conservation district directors or districts, the Attorney General shall provide legal service in civil matters for such district directors or districts. Va. Code § (A)

8 Advice Who may seek advice? Soil and Water Conservation District Directors or Soil and Water Conservation Districts

9 Advice Who may you seek advice from? You may seek legal advice from: (1) local, public, or private sources (2) upon request, the Attorney General shall provide legal service in civil matters

10 Advice Advice from the Office of the Attorney General is limited to civil matters involving SWCDs. Va. Code § (A)

11 Advice What is a civil matter? A civil matter embraces every conceivable cause of action, whether legal or equitable, except those that are criminal. 1 Am J2d Actions § 44. A criminal matter is one that involves the violation of a law punishable as a misdemeanor or a felony. Va. Code §

12 Advice What is legal advice? It is advice given by an attorney in response to an inquiry by one with an honest purpose of being informed as to the law. The person seeking the advice should make a full, correct, and honest disclosure to counsel of all material facts known bearing on the matter. See Evans v. Atlantic C. L. R. Co., 105 Va. 72, 76, 53 S.E. 3, 4 (1906) (explaining when the defense of “advice of counsel” applies in a malicious prosecution case).

13 Advice What may you seek advice about? The business of the Soil & Water Conservation District Va. Code § (A)

14 Advice Questions about advice?

15 Litigation Your role in litigation is limited to these things: You are suing You are being sued You are required to provide information for a lawsuit

16 Litigation The role of the Office of the Attorney General when SWCD is involved in litigation: First, the Attorney General shall represent and provide consultation and legal advice in suits or actions under this chapter upon request of the district directors or districts. Va. Code §

17 Litigation Va. Code § provides: The Attorney General shall represent and provide consultation and legal advice in suits or actions under this chapter (Ch. 5 of Title 10.1, Subtitle I) upon request of the district directors or districts.

18 Litigation The Attorney General shall provide the legal defense against any claim made against any soil and water conservation district, director, officer, agent or employee thereof (i) arising out of the ownership, maintenance or use of buildings, grounds or properties owned, leased or maintained by any soil and water conservation district or used by district employees or other authorized persons in the course of their employment, or (ii) arising out of acts or omissions of any nature while acting in an authorized governmental or proprietary capacity and in the course and scope of employment or authorization. Va. Code §

19 Litigation Key Points for Va. Code § : (1) “The Attorney General shall provide the legal defense against any claim made against any soil and water conservation district, director, officer, agent or employee thereof...” (a) If the claim is against any soil and water conservation district, director, officer, agent or employee thereof and it meets the limitation set forth in subparagraph (i) or (ii), the Attorney General’s Office must provide the defense (b) The representation is limited to responding to lawsuits; it does not include bringing suits

20 Litigation Key Points for Va. Code § (cont’d): (2) There are two classes of actions this Office will defend. (a) Those “(i) arising out of the ownership, maintenance or use of buildings, grounds or properties owned, leased or maintained by any soil and water conservation district or used by district employees or other authorized persons in the course of their employment” and (b) Those “(ii) arising out of acts or omissions of any nature while acting in an authorized governmental or proprietary capacity and in the course and scope of employment or authorization.”

21 Litigation Key Points for Va. Code § (cont’d) (3) There’s more to it than Va. Code § provides

22 Litigation Upon request of the soil and water conservation district directors or districts, the Attorney General shall provide legal service in civil matters for such district directors or districts. Va. Code § (A)

23 Litigation Key Points for Va. Code § (A): (1)It limits the services provided to civil matters (2)Because the term “legal services” is broad, it may include bringing suits

24 Litigation Questions about litigation?

25 Attorney-Client Privilege The attorney-client privilege protects communications between an attorney and a client from disclosure where the communication concerns rendering legal advice; and The communication must be made with the expectation of confidentiality.

26 Attorney-Client Privilege The privilege does not apply where the communication involves the furtherance of a crime or a tort. Here, the privilege does not apply where the communication does not pertain to the business of a SWCD. The privilege can be waived.

27 Attorney-Client Privilege How can the attorney-client privilege be waived? Depending on how the perceived waiver arises, this can be a fairly complex analysis. This is simply an overview. Additionally, the Freedom of Information Act (Va. Code § et seq.) comes into play. Basically, the privilege belongs to the client, here the SWCD. So the privilege can only be waived by the SWCD. Waiver occurs when the communication is disclosed to someone other than the SWCD and its attorney. Once waived, the privilege cannot be restored.

28 Attorney-Client Privilege How does the FOIA impact the attorney-client privilege? Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records. Va. Code § (A)

29 Attorney-Client Privilege How does the FOIA impact the attorney-client privilege? (cont’d) The following records are excluded from the provisions of FOIA but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law: Written advice of legal counsel to state, regional or local public bodies or the officers or employees of such public bodies, and any other records protected by the attorney-client privilege. 3. Legal memoranda and other work product compiled specifically for use in litigation or for use in an active administrative investigation concerning a matter that is properly the subject of a closed meeting under § Va. Code §

30 Attorney-Client Privilege Questions about attorney-client privilege?

31 Conflict of Interest Act (COIA) Overall Purpose: The General Assembly, recognizing that our system of representative government is dependent in part upon its citizens maintaining the highest trust in their public officers and employees, finds and declares that the citizens are entitled to be assured that the judgment of public officers and employees will be guided by a law that defines and prohibits inappropriate conflicts and requires disclosure of economic interests. Va. Code § (emphasis added).

32 COIA How serious is this taken? Any person who knowingly violates any of the provisions of COIA shall be guilty of a Class 1 misdemeanor... A knowing violation under this section is one in which the person engages in conduct, performs an act or refuses to perform an act when he knows that the conduct is prohibited or required by COIA. Va. Code §

33 COIA How seriously is this taken? (cont’d) Any person who knowingly violates any of the provisions of COIA shall be guilty of malfeasance in office or employment. Upon conviction thereof, the judge or jury trying the case, in addition to any other fine or penalty provided by law, may order the forfeiture of such office or employment. Va. Code §

34 COIA In addition to any other fine or penalty provided by law, any money or other thing of value derived by an officer or employee from a violation of COIA shall be forfeited and, in the event of a knowing violation, there may also be imposed a civil penalty in an amount equal to the amount of money or thing of value forfeited. If the thing of value received by the officer or employee in violation of this chapter should enhance in value between the time of the violation and the time of discovery of the violation, the greater value shall determine the amount of forfeiture. Va. Code §

35 COIA What COIA prohibits: Accepting money or “other thing of value” for services performed within the scope of your official duties, including securing employment, appointment or promotion, obtaining a contract, advancing your own economic benefit, and anything where there is a reasonable likelihood that the opportunity is being afforded to influence the performance of your official duties. Va. Code §

36 COIA What COIA prohibits (cont’d): Personal interest in a contract with your SWCD other than your own employment contract Va. Code § "Personal interest" means a financial benefit or liability accruing to an officer or employee or to a member of his immediate family... Va. Code § (explaining when an interest exists). "Personal interest in a contract" means a personal interest that an officer or employee has in a contract with a governmental agency, whether due to his being a party to the contract or due to a personal interest in a business that is a party to the contract. Va. Code §

37 COIA What COIA prohibits (cont’d): Participating in a transaction with your SWCD where you have a personal interest. Va. Code §

38 COIA What COIA prohibits (cont’d): Rule of Thumb: anything that would erode the citizens’ highest trust in their public officers should be avoided. See Va. Code § (explaining the policy behind COIA).

39 COIA And if you’re not sure… You may request an advisory opinion. An officer or employee shall not be prosecuted for a knowing violation of COIA if the alleged violation resulted from his good faith reliance on a written opinion of the Attorney General made in response to his written request for such opinion and the opinion was made after a full disclosure of the facts. Va. Code §

40 COIA Questions about COIA?

41 FOIA Purpose – By enacting FOIA, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Va. Code §

42 FOIA How FOIA is to be viewed – The provisions of FOIA shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law. Any ordinance adopted by a local governing body that conflicts with the provisions of this chapter shall be void. Va. Code §

43 FOIA If FOIA is violated – If the court finds the denial to be in violation of FOIA, the petitioner shall be entitled to recover reasonable costs, including costs and reasonable fees for expert witnesses, and attorneys' fees from the public body if the petitioner substantially prevails on the merits of the case... Va. Code §

44 FOIA If FOIA is violated (cont’d.) – In a proceeding commenced against any officer, employee, or member of a public body under FOIA, the court, if it finds that a violation was willfully and knowingly made, shall impose upon such officer, employee, or member in his individual capacity, whether a writ of mandamus or injunctive relief is awarded or not, a civil penalty of not less than $ 500 nor more than $ 2, For a second or subsequent violation, such civil penalty shall be not less than $ 2,000 nor more than $ 5,000. Va. Code §

45 FOIA Pertains to: Public Records (Va. Code §§ & ) Meetings (Va. Code §§ & )

46 FOIA Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records. Va. Code § Access to such records shall not be denied to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth. Va. Code §

47 FOIA What are “public records”? "Public records" means all writings and recordings, however they are stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. Va. Code § Minutes, including draft minutes, and all other records of open meetings, including audio or audio/visual records shall be deemed public records and subject to the provisions of this chapter. Va. Code § (I). The custodian of such records shall take all necessary precautions for their preservation and safekeeping. Va. Code §

48 FOIA How does one gain access to public records? A request for public records shall identify the requested records with reasonable specificity. Va. Code § (B). A request does not have to be in writing; it can be made verbally. The request need not make reference to this chapter in order to invoke the provisions of this chapter or to impose the time limits for response by a public body. Va. Code § (B).

49 FOIA How do you respond to a FOIA request? Any public body that is subject to this chapter and that is the custodian of the requested records shall promptly, but in all cases within five working days of receiving a request, provide the requested records to the requester or make one of the following responses in writing... Va. Code § (B). See Va. Code § (B)(1-4) for permissible responses. If it is not “practically possible” to produce the requested records in five days, you may secure another seven work days under certain conditions. Va. Code § (B)(4). Generally, no public body shall be required to create a new record if the record does not already exist. Va. Code § (D). Failure to respond to a request for records shall be deemed a denial of the request and shall constitute a violation of this chapter. Va. Code § (E).

50 FOIA Meetings – All meetings of public bodies shall be open, except as provided by § Va. Code §

51 FOIA When are you having a meeting? “Meeting” means the meetings including work sessions, when sitting physically, or through telephonic or video equipment as a body or entity, or as an informal assemblage of (i) as many as three members or (ii) a quorum, if less than three, of the constituent membership, wherever held, with or without minutes being taken, whether or not votes are cast, of any public body. The gathering of employees of a public body shall not be deemed a “meeting” subject to the provisions of this chapter. Va. Code §

52 FOIA Announcing meetings – At least three working days before a meeting, a notice of the date, time and location of the meeting must be posted in a prominent public location at which notices are regularly posted and in the office of the clerk of the public body, or in the case of a public body that has no clerk, in the office of the chief administrator. Va. Code § (C).

53 FOIA Conducting Meetings – No meeting shall be conducted through telephonic, video, electronic or other communication means where the members are not physically assembled to discuss or transact public business, except as provided in § , Va. Code § (B). At least one copy of all agenda packets and, unless exempt, all materials furnished to members of a public body for a meeting shall be made available for public inspection at the same time such documents are furnished to the members of the public body. Va. Code § (F). Minutes shall be recorded at all open meetings. Va. Code § (I). Minutes shall be in writing and shall include (i) the date, time, and location of the meeting; (ii) the members of the public body recorded as present and absent; and (iii) a summary of the discussion on matters proposed, deliberated or decided, and a record of any votes taken. Va. Code § (I).

54 FOIA Questions about FOIA? Please contact the “Virginia Freedom of Information Advisory Counsel” Toll free:


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