The role of the Attorney General’s Office
in Soil & Water Conservation Districts
Paul Kugelman, Jr.
Assistant Attorney General
(804) 786-3811
pkugelman@oag.state.va.us
Basic Roles
• Advice for civil legal matters
• Representation in litigation
• Will also discuss attorney-client privilege,
COIA & FOIA
Overview of AGO Representation
There are three statutes that address the
Attorney General’s Office’s representation
of Soil & Water Conservation Districts:
Va. Code § 2.2-507
Va. Code § 10.1-501
Va. Code § 10.1-501.1
Overview of AGO Representation
Va. Code § 2.2-507(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.
Overview of AGO Representation
Va. Code § 10.1-501
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).
Overview of AGO Representation
Va. Code § 10.1-501.1
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 (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.
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 § 2.2-507(A)
Advice
Who may seek advice?
Soil and Water Conservation District Directors
or
Soil and Water Conservation Districts
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
Advice
Advice from the Office of the Attorney
General is limited to civil matters involving
SWCDs.
Va. Code § 2.2-507(A)
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 § 18.2-8.
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).
Advice
What may you seek advice about?
The business of the Soil & Water Conservation District
Va. Code § 2.2-507(A)
Advice
Questions about advice?
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
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 § 10.1-501
Litigation
Va. Code § 10.1-501 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.
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 § 10.1-501.1
Litigation
Key Points for Va. Code § 10.1-501.1:
(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
Litigation
Key Points for Va. Code § 10.1-501.1 (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.”
Litigation
Key Points for Va. Code § 10.1-501.1 (cont’d)
(3) There’s more to it than Va. Code § 10.1-501.1
provides
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 § 2.2-507(A)
Litigation
Key Points for Va. Code § 2.2-507(A):
(1) It limits the services provided to civil
matters
(2) Because the term “legal services” is
broad, it may include bringing suits
Litigation
Questions about litigation?
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.
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.
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 § 2.2-3700 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.
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 § 2.2-3704(A)
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: . . .
2. 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 § 2.2-3711.
Va. Code § 2.2-3705.1
Attorney-Client Privilege
Questions about attorney-client privilege?
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 § 2.2-3100 (emphasis
added).
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 § 2.23120.
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 § 2.2-3122.
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 § 2.2-3124.
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 § 2.2-3303
COIA
What COIA prohibits (cont’d):
Personal interest in a contract with your SWCD other than your own
employment contract Va. Code § 2.2-3106.
"Personal interest" means a financial benefit or liability accruing to
an officer or employee or to a member of his immediate family . . .
Va. Code § 2.2-3101 (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 § 2.2-3101
COIA
What COIA prohibits (cont’d):
Participating in a transaction with your
SWCD where you have a personal
interest. Va. Code § 2.2-3112.
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 § 2.2-3100 (explaining the policy
behind COIA).
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 § 2.2-3121
COIA
Questions about COIA?
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 § 2.2-3700.
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 § 2.2-3700.
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 § 2.2-3713
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
$ 2,000. . . For a second or subsequent violation, such
civil penalty shall be not less than $ 2,000 nor more than
$ 5,000. Va. Code § 2.2-3714.
FOIA
Pertains to:
Public Records (Va. Code §§ 2.2-3700 &
2.2-3704)
Meetings (Va. Code §§ 2.2-3700 & 2.23707)
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 § 2.2-3704.
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 § 2.2-3704.
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 § 2.2-3701.
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 § 2.2-3707(I).
The custodian of such records shall take all necessary precautions
for their preservation and safekeeping. Va. Code § 2.2-3704.
FOIA
How does one gain access to public records?
A request for public records shall identify the requested
records with reasonable specificity. Va. Code § 2.23704(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 § 2.2-3704(B).
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 § 2.23704(B). See Va. Code § 2.2-3704(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 § 2.2-3704(B)(4).
Generally, no public body shall be required to create a new record if the
record does not already exist. Va. Code § 2.2-3704 (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 § 2.23704(E).
FOIA
Meetings –
All meetings of public bodies shall be
open, except as provided by § 2.2-3711.
Va. Code § 2.2-3707.
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 § 2.2-3701.
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 §
2.2-3707(C).
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 § 2.2-3708, 2.2-3708.1. Va. Code §
2.2-3707(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 § 2.2-3707(F).
Minutes shall be recorded at all open meetings. Va. Code § 2.2-3707(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 § 2.2-3707(I).
FOIA
Questions about FOIA?
Please contact the “Virginia Freedom of
Information Advisory Counsel”
Toll free: 866-448-4100
Email: foiacounsel@dls.virginia.gov