Government Run Amok

Chairman of the Windover Heights Board of Review Steve Bukont was questioned on December 6, 2005 about his conflicts of interest. Watch the video for a refresher:

That video prompted this letter from Vienna citizens.

Upon reflection, the video and the letter made us wonder about the exact scope of Steve Bukont's building efforts in the Town of Vienna. The simple request was made to acquire copies of all building permit applications filed by Steve Bukont or his companies. This request was made under the State of Virginia Freedom of Information Act. Simply put, if you the citizen know a document exists, the government must give it to you. We knew Steve Bukont had submitted an undetermined number of applications, so we asked for all of them knowing there would be charges for Town Staff time to assemble the documents. There can be no more straightforward request under State law. The Town of Vienna Public Information Officer responded:

"This is in response to your e-mail of January 17, 2006, requesting 'a copy of every building permit applied for by Steve Bukont or Doug D'Alexander or any of his/their companies.' Again, building permits are filed by property address, so to compile copies of every Bukont permit would require the Planning & Zoning staff to search all building permit records. As stated before, the Town will not compile such a listing. Under the Virginia Freedom of Information Act, Section 2.2-3704D, 'No public body shall be required to create a new record if the record does not already exist.'"

We told the Town that we were not asking for a "listing". We told them we were not asking for documents not in existence. We wanted documents that we knew existed. Our request was clear:

1. Via State FOIA we demand a copy of all 'Building Permit Application' documents where under the subject heading 'Contractor Information' it lists the 'Company Name' as Steve Bukont, Doug D'Alexander, Ayr Hill Homes, Wedderburn Homes or BFR Construction.

2. Via State FOIA we demand a copy of all 'Town of Vienna, Virginia - Application for Certificate of Occupancy' documents where the signature field is signed by Steve Bukont or Doug D'Alexander. This is the signature field on said document that certifies, "It is understood that Section 18-221 of the Code of Vienna requires the issuance of a Certificate of Occupancy before any new or altered structure can be occupied."

The Town of Vienna Public Information Officer responded again to the above clarified and clear request:

"In response to item #2 of your e-mail of January 17, requesting 'a copy of all 'Town of Vienna, Virginia - Application for Certificate of Occupancy' documents where the signature field is signed by Steve Bukont or Doug D'Alexander,' occupancy permits, like building permits, are filed according to the address of the property for which they are issued. The Town will not compile a record of occupancy documents for Bukont/D'Alexander. Under the Virginia Freedom of Information Act, Section 2.2-3704D, 'No public body shall be required to create a new record if the record does not already exist.'"

The Town of Vienna Public Information Officer response (which was cc:ed to the Town Attorney) shows where a simple freedom of information request reveals a government run amok. Why? The Town Attorney Steve Briglia by allowing these inane responses was attempting to make new State law. How? Vienna's position is that the act of locating or searching for these applications was creating a new "list" or "record". However, our request was not for new records. It was for building permit applications known to be in existence.

Interestingly, the Town of Vienna, after dogmatically refusing on numerous occasions to turn over the Bukont related building permit applications, contacted the State of Virginia Freedom of Information Advisory Council via email on January 19, 2006. Here is the email the Town of Vienna Public Information Officer sent the FOIA Council:

"A citizen has requested copies of all building permits issued to a certain builder. Our permits are filed according to the address for which they were issued, not according to the builder's name. We believe that to search the building permit files in order to find permits issued to a particular builder would amount to creating a new record, which we are not required to do under FOIA. Do you think this decision is correct? Thank you for your opinion."

Isn't that cute? The Town legal position is that the "search" itself creates a new record, but behind the scenes they are not so sure. The opinion from the State of Virginia? Vienna must produce the documents. The Town of Vienna Public Information Officer then wrote us back with "spin" after learning their legal position was ridiculous:

"I have just spoken with [staff attorney] of the FOIA Council. His opinion is that since you are now requesting 'copies' of Bukont building permits rather than a 'listing' of the permits as originally requested, the Town must provide the copies. He said he had already spoken to you and said you told him that you are willing to pay for the search and copying time. I had earlier asked the Planning & Zoning Department for an estimate of the charges and will let you know as soon as I receive the estimate."

This is not an accurate portrayal of the events and the Town knows it.

There are multiple emails (see above) stating the Town would not provide copies of either the building permit applications or certificate of occupancy applications. Forget "listings", the Town clearly was denying the Virginia State right for copies of documents. Also, from the beginning an estimate of any charges was requested. Any implication that this is a "new fact" learned from the State is a flat out lie.

Finally, after deciding they were in violation of State law by denying the records, the Town of Vienna Public Information Officer finally responded with their estimate for producing the documents:

"The Director of Planning & Zoning estimates it will require 48 hours of staff time to locate and copy building permits issued to Steve Bukont, Doug D'Alexander, Ayr Hill Homes, Wedderburn Homes or BFR Construction, and certificates of occupancy signed by Steve Bukont or Doug D'Alexander. The estimated charge is $1,000. Under the Virginia Freedom of Information Act Section 2.2-3704H, the Town may require the requester to agree to payment of a deposit not to exceed the amount of the estimate. The deposit will be credited toward the final cost of supplying the requested records. As soon as the Town receives payment for the estimated charges, staff will begin working to supply the records you request."

This sorry chain of events has a first, middle and last name: abuse of power. All citizens of Vienna should be thankful that a State watchdog group like the FOIA Council exists to stamp out abuse of State law. Now, back to the original question regarding Steve Bukont and conflicts of interest...