City misleading court again?
  Judge asked to decide 

A city witness in a freedom of information case brought against the Virginia Marine Science Museum by People for the Ethical Treatment of Animals (PETA) may have lied to Circuit Court Judge Fred Lowe at worst or misled him at best in testimony over the role the VMSM Foundation plays in museum's operation.  That according to an affidavit filed by PETA's lawyer with the court this week.

The situation arose in testimony about the ownership of vehicles used by the museum, but paid for by the foundation.  The issue is to show there is such a blur it is hard to distinguish between what's public and what's private.

Lowe has already found the city guilty once of violating the state Freedom of Information Act in earlier hearings by lying and hiding and withholding information from PETA.  He even awarded PETA legal fees from the city.

Markings indicate VMSM owned

Of the latest action, PETA lawyer Kevin Martingayle said, "It seems the city and foundation want to keep things as murky as the water the seals are in, but the truth is as clear as the writing on the side of the truck (in question).  The city and the foundation are inextricably intertwined."  Proof of his contention that foundation records are public records.

In the latest hearing,  Martingayle raised the issue 8-days after Donna White, a museum accountant, told the court that the foundation paid for certain vehicles, that are privately licensed and titled to the foundation, marked as foundation property, but made available for museum use.

The testimony came Dec.10 during an ongoing hearing against the city of Virginia Beach for refusing to comply with the court's earlier orders to turn over all documents, in a freedom of information suit, relating to failed plans earlier this year to build a $55M captive dolphin tank at the museum.

License shows private ownership

The city turned over certain records, but alleged others were exempt from the state law because they belonged to the Virginia Marine Science Museum Foundation - a private organization used to raise funds for the museum.

Martingayle on Dec.10 argued that the withheld records are public records.  That they are being illegally withheld on grounds that the records are foundation, therefore private records..

In court testimony it was revealed property and records were so commingled, there was a blur between which records belonged to the museum and which belonged to the foundation .

The issue of markings on foundation trucks came during questioning by Judge Lowe of Ms. White.

Lowe asked:  Do they have an identifying marks other than just normal color or whatever?  Any logo or anything?

White answered:  "Well, actually, the Ocean in Motion truck has a huge wave on it.  Ocean in Motion.  It's a stranding truck.  It has stranding on it.  And the van is ... I don't think there's any identifying marks on the van.  Not that I can recall."

Martingayle found, photographed and presented to Judge Lowe pictures of a Chevy van, bearing private license tags, marked, "Virginia Marine Science Museum."  The vehicles bear identification that indicate they belong to the VMSM rather than the private foundation.

It was clear during the trial that members of the foundation, who were not city employees, had no independent access to foundation records or property.

Wiley Mitchell, representing the foundation, has told Martingayle he objects to what he calls an attempt to add trial evidence through a 'back door.'  Martingayle counters that in interest of the truth the addition must be made.  "The court," he said, "retains discretion to reopen the record, and should"

Martingayle said Mitchell's protest is elevating form over substance.

It is unknown how Lowe will treat Martingayle's 'new found evidence.'

(Persons noting errors of facts in VNS news stories are requested to email the editor at: or call 757-340-4686)