Robinett to be named defendant in solar lawsuit

Town attorney cited for intentional misrepresentation of ‘bribe’ info

By Roger Bianchini
Warren County Report

Front Royal, Va. — Warren County Report has received information that Front Royal Town Attorney Tom Robinett will soon be added as a fourth individual defendant in a $30-million lawsuit filed by local representatives of the company that brought the initial solar power proposal to the town government in mid 2009. At the time the SolAVerde lawsuit was filed in July, three “John Does” were listed as potential defendants yet to be identified by the plaintiffs.

If so named, Robinett will join sitting town Councilmen Tom Sayre, Carson Lauder and Vice Mayor Chris Holloway as individually named defendants in the defamation of character and illegal interference in a business contract lawsuit brought by SolAVerde principals and local businessmen Greg Horton (Arctic Air) and Donnie Poe (Poe Construction).

The Town of Front Royal is also named as a defendant in the suit which seeks $30 million in actual damages, responsibility for which would be split equally among all defendants, as well as an additional $350,000 per defendant in punitive damages. As of September all 26th Judicial Circuit judges recused themselves from the case due to Sayre’s presence as a defendant who also practices law in the 26th Judicial District.

As recounted in our 2010 Year in Review section, the lawsuit was served to the town and councilmen during a break between a July 19 work session and closed meeting. If served individually, it will be Robinett’s second receipt of the lawsuit. Robinett accepted the initial serving on behalf of the town in his role as town attorney.

And it is other actions alleged to Robinett as town attorney that have resulted in his pending addition as a defendant in the case according to a draft of the amended complaint sent anonymously to this newspaper the first week of January.

According to that amended complaint, Robinett is cited for “intentional” and “malicious” providing of incomplete information to the Richmond law firm of Troutman Sanders in seeking an answer to questions first raised to him by Holloway and Lauder on March 30. Those questions were whether jobs and an estimated $1.2 million in direct economic benefit to the town cited by then Town Manager Michael Graham in a March 29 closed session could be construed as bribes offered by solar principals to the town manager.

The draft motion acquired by this paper states Robinett is being added “as a defendant in his personal capacity as town attorney for actions in not providing Troutman Sanders with all the facts necessary to make an informed legal opinion. That it was intentional … and that it was malicious and intended to harm the plaintiffs … and that [Robinett] was well aware that SolAVerde was not a bidder in the RFP process … and he did not take steps to protect the plaintiffs when the information became public.”

Silek unsuccessfully sought a public apology and settlement from the town in the wake of the “solar bribe” issue going public last April 13. At the time the lawsuit was served Silek said, “They chose to publicly defame my clients and they chose this process.

We publicly asked for a retraction on several occasions and that a settlement be offered. I have repeatedly asked that the source of the leak [of the Troutman Sanders opinion and associated Robinett memos] man up and come forward. To me, the only reason that person or persons haven’t yet come forward is self interest. They have put their individual self interest above that of the Town of Front Royal and exposed all of the town to liability – that’s how selfish that person is.”

Ben Orcutt, the author of the series of front page NVD stories about the solar bribe inquiry and Troutman Sanders opinion, has identified the source of those confidential town documents leaked to his paper as a then-sitting member of the Front Royal Town Council. Questioned by this reporter in the past, all six councilmen at the time, Holloway, Lauder, Sayre, Conkey, Parker and Hrbek, as well as then Mayor Tewalt, have denied being that source.

Secret incentives?

In her memorandum on Robinett’s questions to her firm, Troutman Sanders staff attorney Megan Rahman wrote that yes, such economic incentives Graham was seeking direction from council on dealing with on March 29th could be construed as bribes under the conditions as outlined by the Front Royal town attorney.

And Troutman Sanders attorney Carter Glass, with whom Robinett initially discussed the bribe concerns by phone, writes in introduction to Rahman’s opinion, “These ‘incentives’ were not solicited by the Town in its RFP (Request for Proposals) and were not included in the written proposal of the company. Instead, they were apparently made secretly, and one can easily infer that they were intended to influence the procurement decision … Further, such secret incentives likely provide a basis for another company to challenge the entire procurement process.”

In prefacing her opinion, Rahman references the town’s solar RFP (issued in December 2009), adding, “It has come to the Town Attorney’s attention that, during the procurement process, one of the top three companies secretly offered incentives to the Town Manager that were not contained in its written response to the RFP.” Rahman goes on to identify those “secretly offered” incentives as 200 jobs and a $1.2 million payment to the town.

“In sum, so long as the Town Manager has not accepted or agreed to accept the offer, there does not appear to have been any violation of either the criminal statures or the VPPA (Virginia Public Procurement Act). But, the actual offer itself does constitute the type of benefit that would be considered a bribe under either § 18.2-447 or the VPPA,” Rahman concludes.

And Robinett concludes his cover letter to council and the mayor prefacing the Rahman opinion by stating, “While ‘secret incentives’ may be a normal part of private business, they are clearly not acceptable in a public business setting.”

Au contraire

However, the SolAVerde lawsuit dates that company’s discussion of the referenced incentives to open town work sessions beginning in August 2009 and notes that Standard Energy picked up those discussions in October 2009 prior to the town issuing the RFP in December of that year. It adds that similar benefits to the community are discussed in the Standard Energy January 2010 RFP response on pages 16 and 17. It further notes that Horton and Poe were never principals of Standard Energy and so were never involved in the Standard RFP response.

Since the leaked “bribe opinion” info surfaced last April, one citizen activist and Graham supporter, retired U.S. Energy Department official Tina Hobson, has repeatedly asserted to council, with documentation submitted at meetings, that the job and economic benefits Robinett, Holloway and Lauder all expressed ignorance of prior to March 29, 2010 were documented at a series of public council work sessions and other meetings between June and December 2009.

At issue for both plaintiffs and at least one pending defendant now is whether the information Robinett provided to Troutman Sanders was complete, accurate and reflected the town attorney’s full knowledge of the circumstance of the solar negotiating process and Standard Energy RFP response.

Robinett could not be reached for comment on his potential inclusion as an additional defendant in the case.

On Jan. 4, Mayor Tim Darr said he was unaware of any pending move to add Robinett to the list of defendants in the case. Darr also noted that the town’s legal defense was already in the hands of a Virginia Municipal League attorney (Julia Judkins), so questioned any level of impact on how a defense of the town and its accused officials would be prepared or presented.

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