Replacing Local Officials

If a local elected official leaves office, the remaining members of the city council, school board, or county board of supervisors 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, and the local jurisdiction does not have to pay for a special election.

Other elected local officials in Virginia include Treasurer, Commissioner of the Revenue, Sheriff, Comonwealth'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

The highest ranking deputy officer, or in the case of the office of attorney for the Commonwealth, the highest ranking full-time assistant attorney for the Commonwealth, who is qualified to vote for and hold that office, shall be vested with the powers and shall perform all of the duties of the office, and shall be entitled to all the privileges and protections afforded by law to elected or appointed constitutional officers, for the remainder of the unexpired term.

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.

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 issue a writ of election that sets the date. Local officials and state judges can manupilate 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 Disttrict 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.2

the Neabsco magisterial district in Prince William County (as of 2019)
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.3

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. Four members and 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:4

I’m using that residence to run for City Council. I’ll be living there part time when it’s ready.

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 wihdrew. 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.5

the Rose Hall district in Virginia Beach
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. If an elected official moves their official residence out of that 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.6

the Virginia Beach School Board had to appoint two people to fill the seat for the Rose Hall district in 2019
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 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.7

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:8

How can you resign a position you’ve already abandoned?

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.9

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 the council member 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:10

We had four people who took away a lawful election. They changed the results of that election. Just because you’re allowed to do something doesn’t mean you should. It’s not right.

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. Only one person in the town of 2,185 people applied for the job. The person appointed to serve on an interim basis did not file the paperwork required to get on the ballot in the November election, and the person who was kicked off the council ended up as the only candidate on the ballot.11

the Town of Amherst had advertised that the top vote-getters in 2018 would serve a four-year term
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 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 Ivington also had a similar provision in their charters.11

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.12

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 proceding 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 util the last appeal is exhausted.13

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 juat 6,012 signatures out of 8,530 on the petition were valid, falling short of the required 7,786 signatures.14

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:15

petitions signed by voters in the two wards did not contain two things required by state law: a detailed explanation of the accusations against the council members and an acknowledgment by signers that they understood they could be charged with perjury if they provided false information.

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:16

Ten percent of the number of citizens who voted at the last election might be willing to sign a petition if they become persuaded that a court needs to inquire into plausible allegations of malfeasance or incompetence leveled by what appears to them to be concerned citizens. Asking these persons, most of whom will know nothing about the particular allegations raised, to sign under penalty of perjury will act as a significant deterrent to garnering the necessary number of signatures. I fear that grafting a requirement into Code § 24.2-233 that signatories consisting of ten percent of the votes cast sign under penalty of perjury will present an insurmountable obstacle for the recall of wayward officials. In turn, the lessened fear of accountability may increase the temptation to misbehave.

Replacing Officials Elected State-Wide

Links

References

1. "§ 24.2-228.1. Election to fill vacancy in constitutional office," Title 24.2. Elections » Chapter 2. Federal, Commonwealth, and Local Officers » Article 6. Vacancies in Elected Constitutional and Local Offices, Code of Virginia, https://law.lis.virginia.gov/vacode/24.2-228.1/ (last checked March 30, 2019)
2. "Updated: Special election to fill Jenkins' term moved to April 9," Prince William Times, February 19, 2019, https://www.princewilliamtimes.com/news/updated-special-election-to-fill-jenkins-term-moved-to-april/article_fd9336a6-3300-11e9-957b-c7e8a85e85cd.html; "What Neabsco District Voters Should Know About Special Election," Prince William County, March 22, 2019, http://www.pwcgov.org/news/pages/What-Neabsco-District-Voters-Should-Know-About-Special-Election.aspx (last checked May 23, 2019)
3. "When elected officials step down early in Chesterfield, those tapped to replace them usually win," Richmond Times-Dispatch, August 24, 2018, https://www.richmond.com/news/local/chesterfield/when-elected-officials-step-down-early-in-chesterfield-those-tapped/article_d3109515-d614-5a7b-b4cf-296851f70a06.html (last checked April 15, 2019)
4. "Judges say Virginia Beach councilman must leave his seat, but he says he plans to run again," The Virginian-Pilot, March 8, 2019, https://pilotonline.com/news/government/local/article_a1d359b0-41c7-11e9-97f8-531966021923.html (last checked March 30, 2019)
5. "Nygaard says he won't run in special election for Virginia Beach City Council seat," The Virginian-Pilot, April 7, 2019, https://pilotonline.com/news/government/local/article_81944118-5988-11e9-a188-6b2c463248fc.html; "Ousted councilman is one of 5 finalists being considered to fill vacant Virginia Beach seat," The Virginian-Pilot, April 9, 2019, https://pilotonline.com/news/government/politics/local/article_83f2d24a-5b2b-11e9-9170-e38f1df23431.html; "Virginia Beach City Council picks retired lawyer to fill Beach seat," The Virginian-Pilot, April 23, 2019, https://pilotonline.com/news/government/politics/local/article_3d0be456-6536-11e9-86a0-6fbd4496068c.html (last checked April 24, 2019)
6. "Virginia Beach School Board member forced to vacate seat," WTKR, March 7, 2019, https://wtkr.com/2019/03/07/virginia-beach-school-board-member-forced-to-vacate-seat/; "Virginia Beach councilwoman will resign because she is moving to another district," The Virginian-Pilot, March 30, 2019, https://pilotonline.com/news/government/local/article_55b54a92-5235-11e9-a7a3-e35778696737.html; "Rose Hall seat on VB School Board declared vacant by judge," WAVY, April 11, 2019, https://www.wavy.com/news/local-news/virginia-beach/rose-hall-seat-on-vb-school-board-declared-vacant-by-judge/1918623630; "Virginia Beach School Board member withdraws name after 'disrespectful' social posts surface," WVEC, May 22, 2019, https://www.13newsnow.com/article/news/virginia-beach-school-board-member-withdraws-name-after-disrespectful-social-posts-surface/291-059746f0-c74d-4715-9bb3-acbdab1d5981; "Many in Virginia Beach feel left in the dark as School Board picks new member," The Virginian-Pilot, May 28, 2019, https://pilotonline.com/news/local/education/public-schools/article_a6278a56-7dcf-11e9-ae28-7f27cc29ec27.html; "Commonwealth's attorney says ex-School Board member's actions are not criminal," The Virginian-Pilot, July 1, 2019, https://pilotonline.com/news/local/education/public-schools/article_cb42853c-9c3a-11e9-b784-bf630456c987.html (last checked July 9, 2019)
7. "New legal effort launched to remove Agelasto from office," Richmond Free Press, April 12, 2019, http://richmondfreepress.com/news/2019/apr/12/new-legal-effort-launched-remove-agelasto-office/ (last checked April 15, 2019)
8. "Update: Richmond Councilman Parker Agelasto will resign amid legal challenges over move out of district," Richmond Times-Dispatch, April 4, 2019, https://www.richmond.com/news/local/city-of-richmond/update-richmond-councilman-parker-agelasto-will-resign-amid-legal-challenges/article_2a587180-1ceb-5bd6-9081-0a500f2072a9.html (last checked April 24, 2019)
9. "Councilman Agelasto asks for taxpayer money to pay his legal bills," Richmond Free Press, July 4, 2019, http://richmondfreepress.com/news/2019/jul/04/councilman-agelasto-asks-taxpayer-money-pay-his-le/; "Richmond judge declines to intervene in bid to remove Agelasto," Richmond Times-Dispatch, August 9, 2019. https://www.richmond.com/news/local/city-of-richmond/richmond-judge-declines-to-intervene-in-bid-to-remove-agelasto/article_a5eca3e1-4f5a-59bf-adc3-e6f1054603a1.html (last checked August 9, 2019)
10. "Amherst council votes to expel member; Wheaton says she was 'shut down' in decision-making process," News and Advance, July 11, 2019, https://www.newsadvance.com/news/local/amherst-council-votes-to-expel-member-wheaton-says-she-was/article_e1d9f62c-2341-5c26-b8a5-0002dddff2f2.html; "Forced removal of Amherst council member draws criticism; town calls move 'difficult'," News and Advance, July 12, 2019, https://www.newsadvance.com/news/local/forced-removal-of-amherst-council-member-draws-criticism-town-calls/article_e9183512-f0e1-52eb-b84b-0fc1411e9d71.html (last checked July 25, 2019)
11. "Amherst town council appoints interim member following expulsion of elected official," News & Advance, August 8, 2019, https://www.newsadvance.com/news/local/amherst-town-council-appoints-interim-member-following-expulsion-of-elected/article_5d6538d0-53de-5256-9a30-947a12bde351.html; "American FactFinder, Census Bureau, https://factfinder.census.gov/faces/nav/jsf/pages/community_facts.xhtml; "Wheaton only candidate filed to run for Amherst council seat; race open to write-ins," News & Advance, August 19, 2019, https://www.newsadvance.com/news/local/wheaton-only-candidate-filed-to-run-for-amherst-council-seat/article_9109d2b0-d153-5409-9783-cba67bc36136.html (last checked August 20, 2019)
12. Official Opinion #13-112, for Martin Crim, Esquire, Town Attorney for the Town of Haymarket, by Virginia Attorney General, July 18, 2014, p.3 (Footnote 12), https://www.oag.state.va.us/files/Opinions/2014/13-112_Crim.pdf (last checked July 25, 2019)
13. "Make recalls easier," The Virginian-Pilot, September 7, 2011, https://pilotonline.com/opinion/columnist/vivian-paige/article_eb333224-ed0e-5c87-89f0-80b6b799339b.html; "Officials Link a Virginia Mayor to Hate Mail," New York Times, July 14, 1987, https://www.nytimes.com/1987/07/14/us/officials-link-a-virginia-mayor-to-hate-mail.html; "Voters recall Portsmouth Mayor James Holley," The Virginian-Pilot, July 14, 2010, https://pilotonline.com/news/government/politics/article_07f7d63a-279b-5fb3-9d02-22d39b86fd0a.html; "James Holley recall, Portsmouth, Virginia, 2010," Ballotpedia, https://ballotpedia.org/James_Holley_recall,_Portsmouth,_Virginia,_2010 (last checked July 25, 2019)
14. "Title 24.2. Elections » Chapter 2. Federal, Commonwealth, and Local Officers, Article 7. Removal of Public Officers from Office," Code of Virginia, https://law.lis.virginia.gov/vacodefull/title24.2/chapter2/article7/; "Could Va. Gov. Northam Face a 'Recall Trial?'," Election Law Blog, February 3, 2019, https://electionlawblog.org/?p=103453; "Removing Elected Officials in Virginia: Supreme Court to Clarify Requirements for Petitions for Removal," State of Elections blog, William and Mary Law School, October 30, 2017, http://electls.blogs.wm.edu/2017/10/30/removing-elected-officials-virginia-supreme-court-clarify-requirements-petitions-removal/ (last checked July 25, 2019)
15. "Petition to recall Portsmouth Mayor Kenny Wright fails," The Virginian-Pilot, August 9, 2016, https://pilotonline.com/news/government/local/article_6440ab4c-2c13-511a-a8e7-5adaf71490af.html (last checked July 25, 2019)
16. "Recall campaigns in Virginia," Ballotpedia, https://ballotpedia.org/Recall_campaigns_in_Virginia; "Petition to recall Petersburg councilmen withdrawn," The Progress-Index, February 16, 2017, https://www.progress-index.com/news/20170216/petition-to-recall-petersburg-councilmen-withdrawn (last checked July 25, 2019)
17. Commonwealth v. Williams, Virginia Supreme Court, March 1, 2018, posted at Justicia, https://law.justia.com/cases/virginia/supreme-court/2018/170122.html (last checked July 25, 2019)


Virginia Government and Politics
Virginia Places