Judge hears arguments in Moody lawsuit against Portsmouth

WAVY News 10

PORTSMOUTH, Va. (WAVY) — You couldn’t find Portsmouth City Council members at City Hall Monday because they were in court.

Five council members have been taken to court by fellow Councilman Bill Moody.

Moody filed a lawsuit in April, claiming the city overstepped its bounds when it fined him in January. He was fined $1,500 for violating a city amendment and speaking publicly about closed meeting information in a post on Facebook.

The lawsuit alleges that Moody did not reveal anything confidential in the December Facebook post. Moody will eventually argue the fine is a violation of his First Amendment right of free speech.

Councilman Moody says council skipped the process to fine him and that five council members passed around a discipline letter, getting secret votes because they knew what they were doing was wrong.

In court, Mayor Kenny Wright held up a copy of Councilman Bill Moody’s Facebook post from December 8. It talked about how council was going to discuss the Confederate War Monument in a closed session. Wright says it violated a council rule not to discuss closed session business.

“It didn’t violate the rule that they had, but they wanted to punish him anyway,” said Kevin Martingayle, Moody’s attorney.

About one month later on January 12, again in closed session, “They immediately went in and handed Mr. Moody a letter that imposed discipline. There was no discussion of performance, there was just imposing of discipline,” Martingayle says.

The letter began, “It is with regret… we have decided to take action to discipline.”

Mayor Wright and four others fined Moody $1,500 for disclosing closed session business. They gave him a signed letter pulled out of a folder by Mayor Wright; there was no discussion, and in court it was clear that Mayor Wright was the driving force who collected the signatures, and wrote the letter.

Moody testified that he didn’t see anyone sign the letter. He said it was already signed when it was brought out of the folder — this suggests secret meetings with council members to get the letter signed.

The mayor said little leaving court, and gave his trademark smile with no words when asked whether he violated the Freedom of Information Act rules on closed meetings.

On the stand, Councilman Moody quoted Mayor Wright as telling other council members: “I think we should fine his a**, even though he is not a violation of council rules.”

10 On Your Side’s Andy Fox asked Martingayle about that.

“They had already made the decision to impose discipline, and today’s proceedings won’t change that. The bottom line, they can’t fix this… you aren’t suppose to do it with secret discussion or secret ballot or hand out some paper. It is absurd.”

On the stand, Mayor Wright took all responsibility for the letter given to Moody and it was clear it was motivated by the mayor.

“I did the letter… the text, I did it myself. I copied it and pasted it… I put it on city stationary,” he said.

Wright also suggested the City Attorney had minimal involvement, because the issues of the fine were in closed session without staff.

Moody said on the stand that he never saw any council member sign the letter, suggesting the letter was already signed when it came into the January 12 meeting. That suggests all the signing of the letter and discussions occurred outside of the closed session, though policy is that the public must be notified if more than two members of council are meeting.

It is clear Moody took council by surprise by paying the fine immediately and in public. The letter said that Moody had seven days to respond. The council wanted to keep the discipline private, but Moody took it public.

In court, Moody admitted he secretly recorded the January 12 meeting, and the lawyer representing the city says he gave it to a reporter.

“It doesn’t matter who he gave it to, he admitted under oath that he recorded our conversations and that is a violation of our policies,” says Councilman Mark Whitaker.

When 10 On Your Side asked Moody about it, he replied: “I don’t have the recording. I wish I did, because much of what has been said would have been disproved.”

Critics argue that this is another example of Portsmouth City Council gone wrong, and now the Freedom of Information closed meeting case could cost taxpayers for all the legal fees.

“Taxpayers could be on the hook,” Martingayle acknowledged.

Councilman Danny Meeks, who was also fined for an unrelated incident, and who earlier voted to fine Moody, was not in court. Also missing was Councilman Curtis Edmonds, who was out of town.

Vice Mayor Elizabeth Psimas testified, and was the only one who did not vote to fine Moody. Her name was left off the letter by Mayor Wright after it was evident she did not want to fine Moody, but preferred a censure instead.

Moody says Psimas said asked if she was still a member of the council when she saw the letter without her name on it.

A ruling from the judge is expected within the next week.

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