If a local elected official leaves office, the remaining members of the city council, school board, county board of supervisors, or Soil and Water Conservation Districts typically appoint a replacement to serve until the next general election.
Virginia has a general election every year in November. That means that the term of an appointed, rather than an elected, member is limited to less than a year, a special election would not be necessary. Local jurisdictions also have the option of leaving a seat vacant until the next general election. In June 2021 the Purcellville Town Council interviewed five candidates in anticipation of appointing one to fill an open seat, but then decided to appoint no one before the November election.
Two members of the Manassas City Council ran for mayor in 2020, guaranteeing that a replacement would need to be appointed after the election. The Republican candidate lost, and remained in her council position to complete the rest of her term. The Democratic candidate won the election and moved over to the mayor's office. In Manassas, the mayor got to vote only when needed to break a tie. That meant the candidate who lost the race for mayor got to vote on the appointment of a replacement for the winner, while the winner had no vote in the decision.
Local officials in Virginia also include Treasurer, Commissioner of the Revenue, Sheriff, Commonwealth's Attorney, and Clerk of the Circuit Court. These five positions are known as "constitutional officers." State law requires a special election to fill a vacancy in a constitutional office, unless it becomes vacant less than 12 months before the term was supposed to end:1
When a special election is required, the city council, school board, or county board of supervisors must petition the local Circuit Court to set a date for the election. A judge will either reject the petition, or issue a writ of election that sets the date.
In 2021, a Fairfax Circuit Court judge rejected a petition to recall a school board member. The recall advocates had gathered a sufficient number of signatures on a petition to remove the member from the Dranesville District, citing her support of keeping schools closed during the COVID-19 pandemic. The lawyer representing the school bosard member argued hat there was no legal rrequirement to offer in-person instruction during a pandemic. The judge ruled in her favor and blocked the recall effort from proceding to a vote, saying:2
Some resignations and then appointments of replacements are planned successions. Constitutional officers who resign in the last year of their term can giving their deputies an opportunity to gain name recognition and other advantages before an election.
Local officials and state judges can manipulate the date to benefit preferred candidates, or to time the replacement so it occurs before/after a key vote. On February 6, 2019, the supervisor for the Neabsco Magisterial District in Prince William County died while serving the last year of his term. In that particular county, the remaining supervisors do not have the option of appointing a replacement even when there is less than a year left before the next general election.
There was a Democratic primary scheduled for June 11, and state law prohibited the special election from being held within 60 days of the state-run primary, so the supervisors petitioned for an election on April 2. That triggered a requirement for elections being held within 60 days that gave Democratic candidates only five days to file, and the Neabsco District was so heavily Democratic that the Republicans considered not even nominating a candidate.
Local Democratic Party officials decided in a Saturday night meeting to hold a one-hour firehouse primary from 3:30-4:30pm on the following Tuesday afternoon. However, that plan violated the state party's requirements for seven days' notice of an upcoming election. To solve the dilemma, the Prince William County Board of County Supervisors then requested that the judge vacate the original writ of election. He agreed to postpone signing the new writ, so the deadlines for notice could be met while still holding the special election at least 60 days before the primary.
The Prince William County Board of County Supervisors, which accommodated the Democratic Party's deadlines for public notice, was 6-1 Republican at the time.3
the Neabsco magisterial district in Prince William County (as of 2019)
Source: Prince William Mapper, Local Election Districts
In 2018, the Richmond Times-Dispatch reported that all but one replacement for constitutional officers in Chesterfield County had won the next election since 1991. The pattern resembled a system of patronage where incumbents timed their resignations in order to hand-pick their replacements.4
Some resignations are clearly unplanned. In 2019, the mayor of the town of Front Royal resigned after being indicted for prostitution solicitation. The Town Council appointed a former member of the Board of Supervisors to serve as interim mayor until the general election in November, and the interim mayor did not choose to run in that race. The mayor who had resigned did chose to run for re-election, but was defeated by another member of the Town Council. Because he was filling a vacant position, the new mayor took office as soon as the votes were certified to serve the rest of the term (which ended in 2020).
The election of a member on Town Council created a new vacancy on that governing body. Town Council could appoint a new member, just as they had appointed a replacement mayor. If the council could not get a majority vote for any replacement, then it could petition the Circuit Court and have a judge make an appointment.5
The charter for the City of Virginia Beach requires that elected local officials must live in the district they represent.
The City of Virginia Beach has an 11-member City Council, plus a mayor. Three members, including the mayor, are in at-large districts elected by all the voters in the city. Seven members represents specific geographic districts, and are elected by the residents who vote in just those seven areas.
In a 2018 City Council race decided by just by 163 votes, David Nygaard defeated the incumbent who had represented the Beach District for the last 12 years. Nygaard had rented a duplex within the district and claimed it as his residence, but others thought he still was living with his family in the Lynnhaven District. One opponent challenged his status as a resident before the election, after driving by the duplex multiple times and seeing little evidence of occupancy. There was just an inflatable mattress in the living room, and no car was seen parked at the rental unit.
The Commonwealth's Attorney investigated the claim, but reported there was insufficient evidence and declined to take any action. After the election, the defeated incumbent filed suit to challenge Nygaard's eligibility to serve on City Council. A three-judge panel from the Circuit Court determined the duplex rental did not qualify as an official residence and removed David Nygaard from City Council. The court decision noted an e-mail that Nygaard had sent to the rental company before the election stated:6
The removal created a vacancy on the Virginia Beach City Council. It appointed a member to serve until a special election for the Beach District seat could be held along with other elections in November, 2019.
Nygaard initially requested to be appointed and planned to run again; he had moved to another apartment in the Beach District. However, he finally changed his mind and decided not to run again. The incumbent he defeated, John Uhrin, ended up as one of the five finalists considered by City Council for the appointment but then withdrew.
The City Council chose the former executive director of the Virginia Bar Association, a man who planned to serve only for six months and not to run for election in November. However, he changed his mind and was a candidate in the general election, which he won.7
the Rose Hall district in Virginia Beach
Source: City of Virginia Beach, Local Election Districts
The residency requirement in the charter applies to incumbents as well as to candidates for office, at least in Virginia Beach. If an elected official moves their official residence out of a Virginia Beach district, the official must vacate the office and allow for a replacement to be chosen.
On April 11, 2019, a Virginia Beach Circuit Court judge declared the School Board seat for the Rose Hall District to be vacant. The member elected to the School Board for that district had moved out of it for financial reasons; he was unable to afford his old residence and moved to a less-expensive apartment. The judge rejected arguments from lawyers that state law required local residency only for election, and not for continued service throughout a term. He also rejected arguments that the case should be dropped because the school board member had moved back into the district before the case was filed.
The Commonwealth's Attorney ultimately determined that the School Board member's decisions on notifying/not notifying the school system's administration about his moves were "highly suspicious," but not criminal. There was no legal requirement that an elected official give notice of an address change.
Soon afterwards in 2019, the councilwoman for the Rose Hall District resigned her seat because she too was moving out of that district. She had planned to serve on Virginia Beach's City Council until the end of her term that year, then move into a new home in the Princess Anne District. She put her house on the market and it sold in just one day, triggering a faster-than-planned move and the need to resign her council seat before her term ended.
The Virginia Beach City Council and School Board filled the vacancies. They invited residents to apply, considered those who did, and then appointed interim members. They could serve until the next general election.
The School Board appointee resigned within 24 hours, after the public identified earlier anti-Muslim social media posts from him. That resignation forced the School Board to appoint a second person.
Discussions of the first School Board appointment occurred in closed sessions. That was legal since the appointment was a personnel matter, and discussions for the last one seven years earlier had also been in closed session. The second time in 2019, the School Board posted the applications of candidates online, increasing transparency and involving the general public in the appointment process.
The appointee to the City Council for the Rose Hall District ran in the general election that fall and won. His predecessor, the woman who had resigned her City Council seat when she moved out of Rose Hall to the Princess Anne District, was defeated in her race for the for the 21st District seat in the House of Delegates.8
the Virginia Beach School Board had to appoint two people to fill the seat for the Rose Hall district in 2019
Source: City of Virginia Beach, School Board
In Richmond, a member of City Council moved from the 5th District to the 1st District in 2018. He rented his old house in the 5th District, from which he had been elected in 2012 and again in 2016. Two people filed suit to force him from office, which paid $25,000/year. The Richmond City Attorney determined that the council had no authority to remove a member based on his residency, but the Virginia Attorney General took action. He offered not to bring charges that could force the City Council member from office if he resigned by the end of 2019, rather than served his full term through 2020.
The two lawsuits were filed by former City Council members. One asked a judge to declare the seat vacant because the person who had been elected no longer met the residency requirement. The other lawsuit cited the same problem, and suggested that the 1st District was being represented by two members on City Council and the 5th District had none.9
The City Council member finally announced in April, 2019 that he would resign on November 30, a year before his term ended. He took the deal offered by the Richmond Commonwealth's Attorney, who had followed the Virginia Attorney General and offered not to prosecute in exchange for an early resignation. The two former City Council members were not satisfied, and one commented:10
the City Council member for the 5th District in Richmond stayed active after agreeing to resign because he had moved out of the district
Source: City of Richmond, Richmond City Council
The member who chose to resign his seat on City Council spent at least $14,000 fighting the lawsuits trying to force him from office immediately. He requested that the Richmond City Council pay those legal fees, but the City Attorney issued an opinion saying that the decision on where to live was a personal, private decision and did not qualify as an official duty for which public funds could be used.
The local judges declined to declare the City Council seat vacant, after finding procedural objections to processing the lawsuits filed by the two former City Council members. A new member of City Council was elected in November, 2019 and took office at the end of that month. The General Assembly modified the city's charter in 2020 to authorize removal from the City Council if an elected member violated a new provision:11
the General Assembly modified Richmond's charter to specify residency requirements for members of City Council
Source: Virginia Legislative Information System, 2020 Uncodified Acts, Chapter 141 (March 4, 2020)
In some charters granted by the General Assembly, an elected member of a town council can be expelled by a 2/3 vote of the other members. No cause needs to be cited for the expulsion, as demonstrated in July 2019 when the Town of Amherst kicked one of its five members off the council. The mayor and three town council members had been elected the previous November, and the member who was expelled had received the second highest number of votes for a town council seat.
The vote to expel Councilwoman Janice Wheaton came as a surprise after the council met in a closed session to discuss "personnel disciplining of specific public officers." Some in the community questioned if such a closed session could be held if the person involved was an elected official, rather than an employee of the town. A member of the separate Board of Supervisors for Amherst County commented:12
the Town of Amherst had advertised that the top vote-getters in 2018 would serve a four-year term
Source: Town of Amherst, Town Council
The Amherst Town Council then appointed an interim member to serve until a new person could be elected in November to fill out the term. The person appointed to serve on an interim basis did not file the paperwork required to get on the ballot in the November election.
The person who was kicked off the council ended up as the only candidate on the ballot. At the time, none of the members of town council elaborated on why she had been expelled or what was the threshold of behavior to justify such an action, but no other resident chose to run against her. Later, e-mails were released showing causes of the friction on town council. They indicated she had persistently demanded additional details be recorded in the council minutes, which the others persistently rejected. The council also clarified procedures so council members could not direct town staff to take any actions, requiring all requests to be made instead to the town manager.
Throughout her second campaign, she made clear she would seek a revision in the town charter to limit the authority of the council to expel an elected official. If elected a second time, there was the potential for the other four members to remove her again. She suggested the appropriate response to that action would be a recall campaign to remove the other town council members. She was successful in getting re-elected in the 2019 general election, receiving 60% of the votes with the others going to write-in votes.
Four months after she had been expelled, newly re-elected Janice Wheaton rejoined the council. The mayor greeted her with "welcome back," she nodded thanks, and the meeting proceeded to the first order of business.
In 2020, she failed in her effort to get the Town Council to recommend that the General Assembly revise the charter to eliminate the option of expelling a member. A petition to support her position had been signed by only 1% of the residents. None of the other council members supported her proposal, and they were frustrated that she often voted "no," even against a sewer improvement project required by the state. One member of the council said:13
The General Assembly and the US Congress also have provisions to expel members by a two-thirds vote. The Virginia Attorney General provided an advisory opinion in 2014 that identified the towns of Boyce, Chase City, Chatham, Haymarket, and Irvington also had a similar provision in their charters.
The City of Suffolk School Board has no capability to expel a member. In 2020, it chose in a 5-2 vote to censure one member who, according to the resolution, released information about discussions in closed meetings and violated commitments to confidentiality. She later filed a suit against the other School Board members, claiming they violated the state's Freedom of Information Act and illegally discussed prohibited topics during closed meetings.
The one who was censured had declined, after her election, to participate in training regarding the state's Freedom of Information Act (FOIA), which was offered by the Virginia School Boards Association. The majority on the School Board found her posts on Facebook to be inaccurate, with false accusations regarding the superintendent, and intentionally divisive.
Censure was the strongest action available to the School Board, and one member was blunt in complaining to the censured member:14
However, the censured School Board member won her lawsuit against the School Board. The Suffolk Circuit Court judge ruled that the School Board had violated the Freedom of Information Act nearly 25 times, and awarded her all the requested fees for her attorney and other costs. Her attorney declared that she:15
The Onley Town Council in Accomack County censured its mayor in 2020. The mayor had won a close 2018 election, with 110 votes to his opponent's 109 votes, but was later accused of creating a hostile work environment.
After the Town Council passed a vote of censure in May 2020, the mayor then filed for an injunction to void that action. He claimed the council had planned its censure at a closed meeting which violated the state's Freedom of Information Act.
The local District Court judge recused himself, and the case was assigned to the Amherst District Court judge. The recent expulsion of a member of the Amherst Town Council must have provided that judge a more-than-average understanding of the issues. He ruled that there were no Freedom of Information Act violations when the council held a special executive session to discuss the mayor's behavior.16
the Onley Town Council censured the mayor in 2020
Source: ESRI, ArcGIS Online
Some charters issued by the General Assembly for local governments authorize recall elections for expelling city officials. In the City of Portsmouth, Mayor James Holley III holds the unique distinction of being recalled twice by the voters. In 1987, Mayor Holley was accused of sending hate mail letters to local community leaders regarding efforts to keep I. C. Norcom High School open, as well as charging the city for excessive travel costs. He was the first Virginia mayor ever to be recalled.
In 1996, he was elected mayor again. After being accused of using his city assistants to perform personal chores, petitioners collected signatures from registered voters equal to 30 percent of the votes cast in the last gubernatorial election. Mayor Holley lost that second recall election in 2010, and City Council appointed a replacement to serve until the next general election. Holley is thought to be the only person in the United States to be recalled twice.17
The Code of Virginia has provisions for removal of elected local officials in all jurisdictions, and it applies when charters do not provide another mechanism. The law automatically removes elected officials who have been convicted of a felony or had their names added to the registry for sex offenders and crimes against minors. Removal takes effect once the last appeal has been concluded, even if the elected official has received a pardon by the governor or president.
Removal is also automatic if the official has been determined in a judicial proceeding to be mentally incompetent.
Virginia does not allow for voters to recall officials before their term is completed via an early election except in jurisdictions with special charter provisions. The state does have a unique "recall trial" process. Circuit Court judges have the authority to remove local elected officials, if they determine the person has violated standards of conduct. A petition must be signed by 10% of the total number of votes cast at the last election for the office involved, and a specific cause must be cited in a petition to the judge.
One enough signatures on the petition has been verified, the local Commonwealth's Attorney will argue a case before the judge that the person should be recalled. Causes that could justify removal include neglect of duty, misuse of office, or incompetence that materially affects the conduct of the office. Misdemeanor convictions involving drugs (including marijuana) or a hate crime are grounds for a judge to remove an official. Judges can suspend officials before the jury trial required to remove an officer, and the suspension may continue until the last appeal is exhausted.18
In 2019, Mayor Richard Orndorff Jr. of Strasburg drove a John Deere Gator recreational vehicle into the Strasburg Town Library during the town's Mayfest celebration and was seriously injured. After several weeks in the hospital, he was charged with driving under the influence of alcohol. His blood alcohol limit at the time of the crash was 0.17. Driving while under the influence was not a new event for the mayor; in 2015, he had pled guilty to drunk driving.
While the mayor was unable to attend meetings, the Strasburg Town Council considered a proposed proffer amendment from a developer. It died on a 4-4 vote, since the mayor was not available to break the tie.
The Strasburg Town Council later censured the mayor, but he declined to resign. To force action, a person whose child was almost hit by the mayor driving the Gator initiated a recall effort. One basis for recall cited in the petition was that the mayor had obtained the alcohol sales license for the event for the Strasburg Chamber of Commerce, but it was no longer a qualified non-profit as he had claimed on the license application.
Strasburg was a small town, with just 794 votes for mayor in 2016. There were 112 residents who signed the recall petition, exceeding the 80 signatures required to meet the 10% threshold. One said:19
Later, a judge blocked action on the petition because of procedural issues, and required that the Town of Strasburg pay for the mayor's attorney fees. However, after an investigation by the Virginia State Police, the mayor was indicted by a Shenandoah County grand jury for unauthorized use of food stamps and/or electronic benefit transfer cards and obtaining town money by false pretenses.
The mayor still chose to run for re-election, but received only 10% of the votes in the 2020 election. Four of the town council's eight seats were also chosen in that election. Since none of the four incumbents had chosen to run, half the town council and the mayor were replaced through elections in 2020.20
In Mathews County, the Board of Supervisors normally choses a chair who serves in that position for a year. In 2019, the board replaced the chair after 10 months. He retained his position as a voting member of the board, but was not longer the person in charge of running the meetings.
The switch occurred after accusations of forged documents regarding a record of final inspection for elevating a house after a hurricane. The documents, filed with the Mathews County Building Department, were needed for the building to qualify for flood insurance from the Federal Emergency Management Agency. The homeowner claimed the repairs had not been completed by the contractor, and he had not signed the paperwork.
The chair was accused of meeting inappropriately with the contractor, in spite of a decision by the board in a closed meeting to not become involved in the specific case. The Board of Supervisors then chose to remove him as chair in a 3-2 vote, and to install another supervisor as chair. The person removed then filed a lawsuit contesting the action, saying that nothing in state law or the Mathews County ordinances explicitly authorized removing the board chair before that term expired.21
Most efforts to recall officials in Virginia fail because not enough signatures are gathered on a petition. In 2016, another effort to recall a Portsmouth mayor failed when the registrar concluded that just 6,012 signatures out of 8,530 on the petition were valid, falling short of the required 7,786 signatures.22
In 2017, the City of Petersburg came close to bankruptcy due in part by its failure to bill customers correctly for water and other financial mismanagement. A group called Clean Sweep Petersburg filed petitions with enough signatures to recall the mayor and another member of city council. The petitions were withdrawn after the judge indicated support for the claim that the:23
In 2018, in Commonwealth v. Williams the Virginia Supreme Court upheld the requirement that all signers of a recall petition must acknowledge that they are signing under penalty of perjury. That decision rejected the previous opinion of the Attorney General that only the people who prepared the original petition were at risk of being prosecuted for perjury, if their accusations against the elected official were false. Now, all signers are at risk. A dissenting judge wrote:24
The Town Council of Luray censured the mayor in 2020. He had posted on Facebook that Democratic presidential candidate had chosen Aunt Jemima as his running mate for vice president. That comment, coming after Quaker Oats had retired the brand name and logo because it was a racist "Mammy" stereotype, generated local calls for the mayor to resign. He had already declined to run for a fourth term as mayor, and chose to remain in office through 2020 rather than resign.
The Town Council was limited to just a censure vote, because the General Assembly had modified the Luray town charter in 2019 to prohibit the council from removing an elected official. Local citizens started to circulate a recall petition, but expected that the mayor's term would be completed before the Circuit Court judge might accept the recall petition and take action.25
In the City of Portsmouth, Mark Whitaker was forced off the City Council in 2018 when he was convicted in Portsmouth Circuit Court of three felonies. He was found guilty of falsifying a contractor's signature on financial documents, and as a convicted felon was automatically suspended from his office as an elected official. The case was politically motivated, part of a feud between the city's white sheriff and several black officials.
At the time of the conviction, Whitaker was running for re-election. His name remained on the ballot, but the Registrar had signs posted at all polling places that he was not eligble to serve. He still came in fifth in the race for three seats. Later, Governor Northam restored his rights to vote and serve in office, and in 2020 Whitaker won re-election to another four-year term on City Council.26
An unusual form of "replacing" a mayor occurred in the Town of Urbanna in 2021. The town's attorney announced that he had concluded the mayor was not entitled to vote on issues decided by the town council, because technically the mayor was not part of the governing body. The tradition was that the mayor only voted when the council was tied, but the attorney's opinion essentially removed the mayor from the decision-making process.
Local officials immediately considered getting the General Assembly to amend the town charter, as one member of the town council remaked:27
In similar situation, a state judge ruled in 2021 that the mayor of Pound was not entitled to cast a tiebreaking vote when the Town Council appointed a replacement for a member who had resigned. The appointee had voted on issues only on the day she took office, but did not vote after a lawsuit was filed challenging her appointment.
The Town Council in Pound experienced drama in 2021. The lawyer, hired by the town to represent its interests, had provided legal advice in 2020 to residents who were trying to get the mayor removed from office. The lawyer also served as a part-time police officer for Pound. After the Town Council fired him as the town's lawyer and furloughed him from his police officer position, he filed suit for breach of contract and violation of his First Amendment rights. The Town Council later disbanded the police department, with the mayor breaking a 2-2 tie vote.
That decision left the Wise County Sheriff's Department responsible for providing protection within the town. Because only a Virginia law enforcement officer can be responsible for the evidence room, the town had to hire a temporary police chief and evidence specialist to meet state requirements for maintaining custody of the evidence.
The mayor refused to respond to the lawyer's Freedom of Information Act (FOIA) requests, for which she was convicted and fined $500.28
the Town Council in Pound fired its lawyer after he provided legal advice to residents seeking to remove the mayor from office
Source: ESRI, ArcGIS Online