"Two governments finally agreed to settle a lawsuit with citizens by monitoring their groundwater quality and purchasing their right to free speech.

On Sept. 1, the Charlottesville City Council unanimously approved a settlement agreement, hoping to end a two-year-old lawsuit with 26 plaintiffs. Two days later, the Albemarle County Board of Supervisors approved the same agreement.

The agreement stipulated the Rivanna Solid Waste Authority, run by both localities and named as a defendant, would purchase certain parcels of the plaintiffs' properties, pay compensation for various costs and monitor groundwater for possible contamination from the Ivy Landfill. In return, the plaintiffs would be prohibited from exercising opposition to a permit for a new landfill cell.

According to the agreement, the plaintiffs would be forbidden to: present oral comments at any public hearing in opposition to the permit; provide another person with written comments, oral statements or documents in opposition to the permit; make statements to the press in opposition to the permit; provide documents to the media for the express purpose of opposing the permit.

A previous version of the agreement had also mandated the removal of the Ivy Steering Committee's Web site, which opposed the landfill. This condition was omitted in the latest version, because the site was funded and managed by one of the four plaintiffs who refused to settle, Dr. Mike Weber.

Gertrude Weber, Ed Strange and Pam Strange also refused to settle, objecting to a violation of their right to free speech.

'Can a government agency ask for a gag order and violate freedom of speech to settle a lawsuit?' Weber asked in an interview with The Observer.

Probably not, said Josh Wheeler, an attorney with the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, who has followed this unusual legal action.

'The Supreme Court has stated that while in some circumstances one can waive his First Amendment rights, the government must have a legitimate reason for the waiver of the rights, and the public policy behind that reason must be greater than any harm done by the waiver. In my opinion, I have difficulty conceiving of any public policy that would justify a waiver of these citizens' rights to participate in the public debate about the appropriateness of a new cell at the Ivy Landfill,' Wheeler said.

Wheeler said similar issues were covered in Davis vs. Grossmont Union High School District, Ninth Circuit Court. Davis, who terminated employment with the school district, signed an agreement saying he would not again seek employment there. Davis later ran for a position on the school board and won. The district said this violated the agreement and sought to remove him from the board. Davis then sued and prevailed.

'The court ruled that the public's right to elect officials of their choosing and an individual's right to seek office outweighed any interest the government might have in enforcing that provision of the settlement agreement,' Wheeler said.

Wheeler said the Grossmont and Ivy Landfill cases are similar, because in both instances the government attempted to keep citizens out of the political process.

City and county officials said they and their colleagues were well aware of the anti-opposition clause. When asked if any county board members questioned the clause's constitutionality during closed executive sessions, Supervisor Lindsay Dorrier said, 'I can't comment. It's a legal matter.'

Meredith Richards, city councilor, said the plaintiffs knew what they were signing.

'The plaintiffs have been heavily involved,' Richards said. 'The plaintiffs agreed to this clause and were willing to accept it.'

Asked why the nonopposition clause was included, Richards replied, 'My understanding was our concern to continue to have a functioning landfill.'

Two other, plaintiffs, David and Maureen Booth, settled by selling their farm - including contaminated surface and groundwater - to the RSWA for $900,000 in July. The RSWA required the Booths sign a non-disclosure agreement with a similar non-opposition clause. To ensure the Booths' cooperation, the RSWA kept part of the settlement award until it obtains the cell 5 permit.

While answering a financial question from an RSWA member in a public meeting July 24, Lonnie Woods, director of administration and finance, said $700,000 was paid directly to the Booths, and the remaining $200,000 was held in escrow for 'certain contingencies associated with that settlement.' Sources said the RSWA would pay the $200,000 in a lump sum to the Booths if the agency secured the permit this year, or send it in small installments for up to 10 years if the utility's permit was denied.

The Booths and their attorney, naturally, have declined to comment on their case.

The Webers have dismissed their former attorneys, Gail Marshall and Gary Davis, and retained Mike Urbansky of Woods, Rogers & Hazlegrove.

The Stranges dismissed the same attorneys but have not settled on new representation. 'They seemed too willing to settle,' Ed Strange said about Marshall and Davis. 'I've reserved the right to return to court,' Strange said.

Strange said Marshall held a settlement meeting at St. John the Baptist Episcopal Church - one of the plaintiffs - three weeks ago. On a table was a single copy of the agreement and two stacks of signing sheets - one with everyone's name, the other with everyone but the Stranges'. Gail Marshall asked the Stranges and Webers, to sign. When they Ed Strange refused, she asked them to leave.

Marshall has not returned The Observer's calls seeking comment" (Brian Cohen, The Observer, October 11, 2000).