When Culpeper County Commonwealthâ??s Attorney Megan Revis Frederick asked the opinion of a veteran prosecutor and received the answer that warned her to tread lightly, it was too late to heed that advice, if she chose to do so.â??
Frederick sought the opinion of Fairfax County Commonwealthâ??s Attorney Ray Morrogh regarding a letter to Frederick from Richmond attorney Andrew Meyer who represents Culpeper Police Detective Matthew Haymaker. That letter signed by Frederick and her assistants and sent to Police Chief Chris Jenkins said they would no longer prosecute cases in which Haymaker was involved â??no matter how slight.â?
In a Jan.13 email, Frederick expressed her concerns to Jenkins and now-Maj. Chris Settle about the officerâ??s â??aggressive behavior/language used toward the defendant.â? She also questioned interaction between the officer and defendant not recorded on video and â??therefore his potential untruthful statement under oath to a magistrate and in writing his report.â?
Frederick petitioned the court to compel the police department to turn over Haymakerâ??s personnel and internal affairs files for her review. The court denied her request. Frederick then dropped prosecution of a case in which Haymaker was the complainant.
Although a violation of the departmentâ??s â??human relationsâ? policy was sustained based on a complaint made by Frederick to police, Attorney Meyer said that nothing in Haymakerâ??s personnel or internal files called his â? truthfulness or morality into question.â?
On April 15, Frederick asked Morrogh to offer his opinion on the Meyerâ??s April 13 letter to Frederick demanding that she â??cease and desist defamatory statements and improper conduct.â? Meyerâ??s letter also provided â??notice of incident giving rise to cause of action,â? in other words, a lawsuit. Frederick also furnished Morrogh with the Mar. 26 letter she sent to Chief Jenkins detailing her staffâ??s planned denial to prosecute any future cases involving Haymaker.
Morrogh is a veteran prosecutor, with more than 31 years of service, in Virginiaâ??s most populous locality. Currently, he serves as a district director for the Virginia Association of Commonwealthâ??s Attorneys and is the immediate past president of that organization.
Using her county email address, Frederickâ??s email to Morrogh contained attachments of Meyerâ??s correspondence and her letter to Jenkins.
â??Hey Ray!â? Frederick wrote. â??Hope things are going well.
â??I wanted your opinion on this,â? Frederick continued, apparently referring to the attachments. â??Iâ??d ask that you not share it with any other CAâ??s (commonwealth attorneys) for now.â?
The email was signed, â??Megan.â?
In less than two hours, Morrogh responded with a warning and some personal advice.
â??I would proceed cautiously on this,â? Morrogh wrote. â??I recommend you consult a civil lawyer who specializes in defamation and or employment law.â?
Morrogh continued that cases are reported â??on very similar facts.â? He indicated that he would be out of the office that week and unable to research the cases. But he recommended that she research such cases on Lexis, a computer service providing legal research.
â??I donâ??t know why you will not use this officer as a witness, but the letter you received is the first step in a lawsuit,â? Morrogh wrote. â??Bottom line â?? unless you have rock solid evidence that this guy is not a credible witness, you will have problems here.â?
The email was signed, â??Ray.â?
Pursuing the paperwork
Acquiring copies of the correspondence between Morrogh and Frederick proved difficult.
Following a request to Frederick by the Culpeper Times for correspondence between her office and Morroghâ??s under the Virginia Freedom of Information Act (FOIA), Frederickâ??s Deputy Commonwealthâ??s Attorney Angela Catlett denied the request on Apr. 24, citing Virginia Code section 2.2-3705.1.
The Times sent a follow up email to Catlett requesting to know which of that statuteâ??s 13 subsections related to exclusions for public bodies applied. An amendment to state code added commonwealthâ??s attorneys to the list of public bodies subject to FOIA.
Catlett never responded. However, on April 29, Michael Matheson, a private Richmond-based attorney with the Thompson McMullan law firm, responded by email citing three subsections of the code as being applicable exclusions.
Matheson cited sections applicable to personnel records, legal counsel and attorney-client privilege, and legal work or memorandum specifically for litigation or active administrative investigation that is the subject of closed sessions.
â??Please direct any further inquiries regarding this matter to me,â? Matheson wrote to the Times.
The Times in a May 1 email, asked Matheson why a private attorney was responding to a FOIA request made to a government official.
â??As stated in my (Apr. 29) letter, our firm is counsel to Ms. Frederick with respect to your FOIA request,â? Matheson wrote in response to a May 1 email, raising questions about his reasoning for the exclusions listed.
The Times asked how personnel records applied to Haymaker as he is a town employee and not employed by the commonwealthâ??s attorney as well as being the focus of a public and locally reported circuit court hearing to allow Frederick to see his personnel and internal affairs files.
The newspaper also questioned how attorney-client privilege applied since Morrogh was not a retained attorney but one she asked for his personal opinion on action she already had taken and a response from Haymakerâ??s attorney.
The Times also questioned the exclusion regarding â??work compiled specifically for use in litigation or an active administrative investigationâ? that meets â??closed meeting standards.â?
Matheson never answered those questions after the Times confirmed it had received the requested correspondence from the Fairfax County Commonwealthâ??s Attorney.
â??As you have confirmed, it is my understanding that you have obtained all the requested documents from the Commonwealthâ??s Attorneyâ??s Office for the County of Fairfax,â? Matheson wrote in his May 1 email. â??Ms Frederick has no additional records responsive to your request. Therefore your request is now moot.â?
While Frederickâ??s office categorically denied the FOIA request, Morroghâ??s Deputy Commonwealthâ??s Attorney Casey Lingan responded by providing the requested documents, without exclusions.
The Times sent an email and left a voicemail to allow Frederick to respond to several questions. The Times asked about the timing of her request for Morroghâ??s opinion â?? several weeks after her letter to Jenkins, The Times also asked who is paying for a private attorney, if the private attorney was hired to respond to the FOIA request or as a result of the advice to seek legal counsel. The Times also asked why her office denied a FOIA request that was fulfilled by Fairfax County.
Frederick did not respond.
Wally Bunker is a freelance contributor with the Culpeper Times. You may reach him at firstname.lastname@example.org