There She Goes Again! The River Easement

In response to Dr. Tomzak’s claim that he worked to get her to support the River Easement Mrs. Girvan stated, “Actually, the Mayor had very little to do with my vote on the easement.” She went on to state that, “she wanted two conditions met—that the document be legally sound, and that the money the city was getting for the easement be protected in perpetuity in an endowment.” Let’s take another walk down Memory Lane shall we—

Actually what Mrs. Girvan wanted were best expressed in a motion she made at the meeting of Feb. 14, 2006. http://www.fredericksburgva.gov/record/021406rg.asp
and later in an OpEd appearing on March 6th http://fredericksburg.com/News/FLS/2006/032006/03062006/172495 In her motion she proposed the removal of third party easement holders, securing funding for the boundary survey, property appraisal, and river steward through continued negotiations with the localities adjoining the City’s river lands. She wanted to negotiate an agreement with the localities only. In regard to the $1.6 million from the Nature Conservancy she stated it was, “insufficient funding to protect these lands.” The fact that the counties could not commit to any long term funding for river protection was not mentioned. So how did her claim for wanting to have a legally sound document obtain her goals as she had stated?

To establish a “legally sound” document Mrs. Girvan insisted on having another attorney look at the easement before it was voted on. The fact of the matter was that up to this point attorneys representing The Corps of Engineers, The Nature Conservancy, the Virginia Outdoors foundation, and the Virginia Department of Game and Inland Fisheries had looked at the document. All organizations familiar with easements and representing state and federal interests as well as conservation groups. Add to this list our own City Attorney and Mr. George Freeman a retired attorney with expertise in easements brought on to assist the City.

But in Mrs. Girvan’s mind we had to have an “independent” review of the document. This attitude, which continues today, is to question any information, regardless of the expertise involved, which does not support her position. So, more city tax dollars were spent to hire another attorney, Mr. John Lain of McGuire Woods, to review the document. The result of the review was present to Council at their March 28, 2006 meeting http://www.fredericksburgva.gov/record/032806rg.asp in which Mr. Lain stated that the easement, “met the goals of the City and would protect the river; further, the City could have side and amendment agreements if they foresaw the need to do so at a later time.”

Contrary to Mrs. Girvan’s current claim, especially in light of her position stated prior to the review, Mr. Lain’s involvement did not result in any significant changes in the document. In fact, in a memo to the Council outlining Mr. Lain’s suggested modifications, the City attorney stated, “The changes are primarily editing changes, or clarifications, or making express what had been implied.”

So the changes Mrs. Girvan supported, removal of third party easement holders, and negotiating with the counties, were not made.

In regard to the issue of the endowment Mrs. Girvan stated that she had gotten what she wanted based on an e-mail from the City Manager received the day before the vote. The City manager did send an e-mail outlining the terms of the endowment the night before and in the April 11, 2006 edition of the Free Lance Star it stated, “Yesterday, Councilwoman Debby Girvan said that a revised draft of a resolution setting up a permanent endowment to protect that initial sum appeared to satisfy her concerns.” Let’s look at how this came about--

It should be understood is that the endowment was not part of the river easement document. The endowment was a mechanism providing funding for the River Stewart program. In an e-mail to Council on March 27, 2006 the City Attorney stated that, “The resolution (on the Endowment) would not be scheduled for Council action until Council has approved the easement itself – i.e. there is no reason to establish a separate fund unless and until you’ve agreed to the easement. You could act on the resolution on April 11, or on any date between April 11 and the execution of the easement document (i.e. prior to the City’s receipt of the $$$.)”

Also the concept of the endowment had always had the support of the entire Council. There were some issues related to how it was to be put in place and what authority we had as a locality to do it but there was never a question that it would exist in some form. However, the majority of the Council agreed with the position outlined by the City Attorney that without approval of the easement there was no reason to spend time and effort on the details regarding what form an endowment would take.

In her March 6, 2006 OpEd Mrs. Girvan’s position on the establishment of the endowment was no different than any member of the Council at the time. But there was no mention in the OpEd that the endowment had to be passed with the easement. And as so often with Mrs. Girvan, what was important one day may not be as important the next. When she had an opportunity to make it an issue at the next Council meeting she didn’t even mention the endowment.

At the Council meeting of March 14, 2006 http://www.fredericksburgva.gov/record/031406rg.asp a motion was made by Mrs. Devine, and seconded by Mrs. Girvan, to set the vote for the easement on March 28th. No mention was made by Mrs. Girvan that the endowment had also to be in place by that time. None of her e-mail communication to council members between March 14th and the 28th requested that the vote on the endowment also take place at the next meeting. So what happened to bring about a vote on the endowment the same evening as the easement?

The change came about in response to the City Attorney’s e-mail cited above. The change was NOT initiated by Mrs. Girvan but by Mayor Tomzak. In his March 27, 2006 e-mail he stated—

“Dear Kathleen;

I am asking that the River Easement vote be POSTPONED until the first meeting in April.

First, let me say that you have my word that the vote will be held that evening and that I will support it.

My request is based on the following reasons:

1. I want to discuss the proper handling of the $1.6 million. This is very important particularly in the context of the future of the river follow-up.
2. Clear up some confusion I have on the Virginia Outdoors Foundation & legal services.

I will call you later,

Tom”

As a result of the Mayor Tomzak’s initiative the vote would be postponed until the Council’s April 11th meeting. The Mayor, not Mrs. Girvan followed up on April 3, 2006 with an e-mail to both the City Manager and Attorney stating—

“P & K,

It is very important that we are all on the same page regarding the 1.6 Million $.This money has to be invested as part on an permanent endowment to maintain the River . The principal shall not be spent. My hope is that the endowment increase by public/ private donations.Short term support for the steward is a separate issue.I think the Council is on the same page on this issue. Is staff on the same page?. We need a resolution to direct this money to a protected account”

Up to this point, based on her recent comments and votes, Mrs. Girvan had not insisted on the endowment be finalized and voted on the same night as the easement. It was only after the Mayor raised the issue did she take it as her own.

Again, the facts do not support Mrs. Girvan’s view of events. She was not a supporter of the easement. The delays in the vote on the easement, and the cost to city taxpayers in hiring another attorney, didn’t change anything. And Mrs. Girvan’s last effort to claim her vote for the river easement was based on her efforts to have the endowment voted on with the easement has proven false.