Replacing Local Officials

the Rose Hall district in Virginia Beach
the Rose Hall district in Virginia Beach
Source: City of Virginia Beach, Local Election Districts

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:1

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.2

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. The School Board representative for the Rose Hall District resigned in 2019 after serving since 2013. He moved out of the district for financial reasons; he was unable to afford his old residence and moved to a less-expensive apartment.

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.3

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.4

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:5

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

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:6

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.

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.7

Replacing Officials Elected State-Wide

Links

References

1. "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)
2. "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)
3. "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 (last checked March 30, 2019)
4. "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)
5. "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)
6. "§ 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)
7. "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)


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