VIRGINIA:

IN THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY

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THOMAS A. WOOLMAN, :
Petitioner, :
vs. :
: Case No. CL17-155
JOHN D. LESINSKI :
Respondent :
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PETITIONER’S MOTION FOR LEAVE TO AMEND

COMES NOW, Thomas A. Woolman, by counsel, pursuant to Rule 1:8 of the Rules
of the Supreme Court of Virginia, and for his Motion for Leave to file the attached Second
Amended Petition in the wake of the Court’s August 7, 2018 Letter Opinion, September 12
Order and December 5, 2018 Letter Opinion and respectfully states as follows:
(1) Petitioner incorporates by reference all the points and authorities set forth in his
Answer in Opposition to the Demurrers filed in this proceeding on February 23, 2018 and
June 11, 2018 and all exceptions to the Court’s previous Orders including the September
12, 2018 Order as amplified in his November 12, 2018 Motion for Reconsideration, all
which are hereby preserved, and this motion is without prejudice thereto.
(2) Since the filing of Petitioner’s Amended Petition on April 30, 2018, there have been
a number of subsequent violations of the Conflicts Act by Respondent Lesinski, all relating
his failure to make the disclosures and declarations required by Code §2.2-3115(H) and his
ongoing improper participation in transactions involving appropriation of additional funds
for counsel fees for Lesinski’s personal defense in the Bragg I litigation. These additional
violations at the May 2018, October 2018, November 2018 and December 2018 meetings
are reflected in paragraphs (30) through (33) of the attached Second Amended Petition.
(3) The attached Second Amended Petition deletes the requests for the Attorney for the

WOOLMAN VS. LESINSKI (CL17-155) page 1

MOTION FOR LEAVE TO AMEND PETITION FOR ENFORCEMENT
(DECEMBER 7, 2018)
Commonwealth, Arthur L. Goff, to be made a party to this proceeding and issuance of a
writ of mandamus against him, and the allegations relating to Goff’s possible ethical
violations and violations relating to his own violations of the Conflicts Act (Count III and
Count IV), consistent with the Court’s August 9, 2018 and December 5, 2018 Letter
Opinions and the Order entered September 10, 2018. These proposed amendments are
without prejudice to Petitioner’s exceptions to the Court’s prior orders.
(4) The attached Second Amended Petition deletes the requests relating to Woolman’s
request for relief under 28 USC 1983 et seq. (Count V) consistent with the Court’s August
9, 2018 Letter Opinion and the Order entered September 10, 2018 sustaining demurrers.
This proposed amendment is without prejudice to Petitioner’s exceptions to the Court’s
prior orders.
(5) The April 30th Amended Petition did not specifically request imposition of civil
penalties on Respondent Lesinski, but only a general prayer for “all such other and further
judicial relief as to which he may be entitled and the nature of his cause may require to
achieve the ends of justice and the goals and purposes of the Virginia State and Local
Government Conflicts of Interest Act.” Code §2.2-3124(A) provides as follows:
§ 2.2-3124. Civil penalty from violation of this chapter.
A. In addition to any other fine or penalty provided by law, an officer or employee who
knowingly violates any provision of §§ 2.2-3103 through 2.2-3112 shall be subject to a civil
penalty in an amount equal to the amount of money or thing of value received as a result of
such violation. If the thing of value received by the officer or employee in violation of §§ 2.2-
3103 through 2.2-3112 increases in value between the time of the violation and the time of
discovery of the violation, the greater value shall determine the amount of the civil penalty.
Further, all money or other things of value received as a result of such violation shall be
forfeited in accordance with the provisions of § 19.2-386.33. (emphasis added)
(6) In the wake of the Court’s comments from the bench at the November 27, 2018
hearing on Respondent’s Motion to Dismiss, and its August 7, 2018 and December 5, 2018
Letter Opinions, in which the Court has denied Petitioner’s requests to compel the Attorney
for the Commonwealth to recuse himself as prosecutor in matters arising from the facts
and circumstances recited in the April 30, 2018 Amended Petition in order that a criminal

WOOLMAN VS. LESINSKI (CL17-155) page 2

MOTION FOR LEAVE TO AMEND PETITION FOR ENFORCEMENT
(DECEMBER 7, 2018)
prosecution as contemplated by Article 7 of the Conflicts Act (Virginia Code §§ 2.2-3120
et seq.) can be commenced against Respondent Lesinski, out of an abundance of caution,
Petitioner proposes to amend the Petition to include a specific request in the Amended
Petition that the Court impose a civil penalty against Lesinski as provided by Virginia
Code § 2.2-3124(A) in an amount equal to the amount of money attributable to such
violations and, in addition, the forfeiture of the pro rata share of counsel fees and
expenses attributable to Lesinski arising from the transactions described herein in such
amount as the Court may determine.
(7) Although the Court seemed to express some doubts as to the sufficiency of the
prayer for relief at the November 27th hearing, Petitioner submits that the final subsection
of the Amended Petition already contained a prayer for relief under the Conflicts Act that
was legally sufficient for the Court to apply Code § 2.2-3124(A) and impose civil penalties
if it makes the requisite findings. As the Supreme Court held in Winston v. Winston, 144
Va. 848, 856, 130 S.E. 784 ___ (1925),
"A bill in equity should contain a prayer for both specific and general relief, but under
a prayer for general relief only, there may be granted any relief warranted by the facts
alleged, and under a prayer for specific and general relief, may be given the relief
asked specifically, and any further relief warranted by the allegations, so it be not
inconsistent with the specific relief asked." [citations omitted] * * * In its application
those principles stated by Judge Burks in Hurt Jones, 75 Va. 341-352, are to be
remembered: ‘Under the general prayer the plaintiff is entitled to any relief which
the material facts and circumstances put in issue by the bill will sustain; but it must
be consistent with the case made, and if inconsistent with it and with the special relief
prayed for, will always be refused.’”
Applying these principles to the Amended Petition in this case, imposition of the civil
penalty provided for in Code §2.2-3124(A) is fully warranted by the facts alleged, if
proven, and is not inconsistent with any other prayer for specific relief. On the contrary,
such relief would be complementary to the specific relief prayed for in the Amended
Petition. This is especially so in dealing with a remedial statute such as the Conflicts
Act. To the same effect is Code § 8.01-275, viz.:

WOOLMAN VS. LESINSKI (CL17-155) page 3

MOTION FOR LEAVE TO AMEND PETITION FOR ENFORCEMENT
(DECEMBER 7, 2018)
 § 8.01-275. When action or suit not to abate for want of form; what defects not to be
regarded.
No action or suit shall abate for want of form where the motion for judgment or bill of complaint
sets forth sufficient matter of substance for the court to proceed upon the merits of the cause.
The court shall not regard any defect or imperfection in the pleading, whether it has been
heretofore deemed mispleading or insufficient pleading or not, unless there be omitted
something so essential to the action or defense that judgment, according to law and the very
right of the cause, cannot be given. (emphasis added)

(8) Rule 1:8 states in part: “[l]eave to amend shall be liberally granted in furtherance of
the ends of justice.” Whether to grant leave to amend “is a matter resting within the sound
discretion of the trial court.” Kole v. City of Chesapeake, 247 Va. 51, [251 Va. 296] 57,
439 S.E.2d 405, 409 (1994). Mortarino v. Consultant Engineering Services, Inc., 467
S.E.2d 778, 251 Va. 289 (1996). Although amendments are not a matter of right, denial of
a motion for leave to amend after a showing of good cause is, in ordinary circumstances,
an abuse of discretion. Ford Motor Co. v. Benitez, 273 Va. 242, 252, 639 S.E.2d 203, 208
(2007).
(9) Here, there will be no prejudice to Respondent in granting the motion for
amendment adding four paragraphs detailing similar violations of the Conflicts Act by
Lesinski subsequent to April 30, 2018, striking the Counts as to which the Court sustained
demurrers, and amendments to the prayer for relief to clarify Petition is seeking imposition
of the civil penalties provided for in Article 7 of the Conflicts Act at this stage of the
proceedings. The Court’s August 7, 2018 Letter Opinion and its September 12, 2018 Order
sustained a demurrer that, in effect, struck out substantial portions of the Amended Petition,
without granting Petitioner leave to amend in the wake of the Court’s second Opinion
Letter and subsequent order. The proposed Second Amended Petition for Enforcement is
ten pages shorter than the April 30, 2018 Petition, with only two counts. It would serve the
interests of justice to permit the amendment under Rule 1:8.

WOOLMAN VS. LESINSKI (CL17-155) page 4

MOTION FOR LEAVE TO AMEND PETITION FOR ENFORCEMENT
(DECEMBER 7, 2018)
 WHEREFORE, Petitioner respectfully requests the Court to grant him leave to file
the attached “Second Amended Petition” and such other and further relief as to which he
may be entitled and the nature of his cause may require to achieve the ends of justice.

Dated: December 7, 2018 THOMAS A. WOOLMAN

by counsel
David L. Konick
David L. Konick VSB No. 17495
P.O. Box 57
Washington, Virginia 22747-0057
Phone 540-937-5067
Counsel for Petitioner

CERTIFICATE OF SERVICE
I hereby certify that true and correct copies of the foregoing pleading were served upon counsel
for Respondent via first class mail or facsimile this 7th day of December 2018 in accordance with
Rule 1:12 of the Rules of the Supreme Court of Virginia:
Robert T. Mitchell, Esquire [rmitchell@hallmonahan.com]
Hall, Monahan, Engle, Mahan & Mitchell [(540) 662-4304]
9 East Boscawen Street
Winchester, Virginia 22604-8482
Counsel for John D. Lesinski

David L. Konick

WOOLMAN VS. LESINSKI (CL17-155) page 5

MOTION FOR LEAVE TO AMEND PETITION FOR ENFORCEMENT
(DECEMBER 7, 2018)