Responding to repeated inquiries into an expenditure of public money, Franklin County officials stand firmly on wobbling principle: Disclose nothing beyond that which is required. These are scruples of lawyerly fashioning.
In the spring, the county settled a case in defense of actions alleged in a federal lawsuit and indefensible if the allegations are true. An ex-county employee accused Franklin’s former top building official of groping her under her clothes. Less than a week before the scheduled start of trial, the two sides settled.
A supervisor said the county paid money in the settlement. But county officials have yet to say how much. The amount, in fact, might never be known.
Records listing settlement payouts by public entities are public records, according to Virginia Supreme Court precedent as well as a ruling by the Virginia Freedom of Information Advisory Council. Therein lies the rub: The county insists it possesses no records listing the payout in this case.
Technological advances and the county’s reliance on a risk pool insurer appear to provide officials a circuitous route around the law. A payment would have been made by the Roanoke County-based Virginia Association of Counties Group Self-Insurance Risk Pool, known as VACORP. That insurer relies on a pool of tax money from hundreds of public entities to cover loss payouts and other costs.
Nonetheless, because VACORP is a private entity, it is not subject to open records law. VACORP formerly sent risk pool members like Franklin and other localities what are known as loss-run reports, listing, among other things, settlement payouts. Once those records reached the hands of public officials, the documents became publicly accessible.
However, VACORP now provides insurance pool members an online login and password that allows them to print loss-run reports whenever they prefer. When an official prints such a record, it is publicly accessible. But no public record exists if officials opt against printing one.
Asked to print a loss-run report, Franklin County officials did not. Nothing in the law mandates otherwise. Under the state’s Freedom of Information Act, officials are not required to create a record that does not already exist.
Megan Rhyne, executive director of the Virginia Coalition for Open Government, is contemplating legislation that would ensure settlement payout records exist and are publicly available. This is precisely the response needed and expected from Virginia’s leading open government advocate.
An old saw goes that only death and taxes are certain. The latter forms the marrow of the firm principle that, as the state’s FOI Council wrote in 2013, “the public gets to see how its tax dollars are spent.” This helps taxpayers monitor the efficacy of their government.
County supervisors, the elected representatives of the taxpayers in this community, could step to the fore on this issue. They could demand to know the settlement amount in the case of Jennifer Owen v. Franklin County and Robert Andrew “Andy” Morris and then make that figure public. We urge taxpayers in Franklin County to join us in demanding as much.