A little-used state law is getting a workout this year, but that’s not the same thing as saying it’s working.
Virginia’s law that creates a mechanism to remove an elected official from office has been employed in two places, and unfolded in such different ways that they raise questions about whether the law is working as intended.
In Purcellville in Loudoun County, the vice mayor was indicted last July on six felony counts, two of them involving alleged bid-rigging. Those charges have yet to be adjudicated. In the meantime, a citizen petition to remove him from office has led to a trial that is taking place this week.
In Martinsville, the mayor has not been charged with any crime (although certain matters have been referred to a special prosecutor). Meanwhile, a citizen petition to remove him from office led to a judge suspending him from office before a trial could be held. A different judge has since reinstated the mayor, with a removal trial now set for June 5.
Let’s clarify this further. In Purcellville, a vice mayor charged with six felonies has been allowed to continue serving for nine months before his removal trial gaveled in. In Martinsville, a mayor who hasn’t been charged with any crime was suspended from office for two months before being reinstated, pending a removal trial.
The General Assembly on Wednesday passed a law that applies specifically to Purcellville that would require an official in that town who is charged with a felony be suspended. However, both these legal routes described above have been permissible under the current law. The two unusual cases unfolding at the same time make the contrast more striking. So does this: The Purcellville vice mayor, who was allowed to serve for nine months while under indictment, is white; the Martinsville mayor, who was suspended without any criminal charge, is Black.
The allegations against Martinsville Mayor L.C. Jones may not be racially motivated — they involve accusations of improper gifts. The process may not be racially tainted, either. However, the fact remains that a white officeholder in Northern Virginia under indictment was allowed to serve for most of a year while a Black mayor in Southside who faced no criminal charge was almost immediately suspended for two months. Does anyone think that looks bad?
The question here is not whether either Ben Nett in Purcellville or Jones in Martinsville should or should not be removed from office; it’s whether the law that led to such different routes for essentially the same thing — voters who want an officeholder removed — is properly constructed. My concern is not with those two officeholders but with the process. At some point, they will be gone from the scene, but the process will remain.
One reason these questions arise is that removal cases rarely get to the trial stage. The removal trial this week involving Nett in Purcellville is the first in Virginia since 2013. That year, Sussex County supervisor Rufus Tyler Sr. faced a removal trial for multiple things, including allegedly “manipulating the start of a supervisors meeting in order to engineer a majority to vote the county administrator out of office,” according to Virginia Lawyers Weekly. Tyler resigned before the trial was concluded.
The last removal trial that was completed was in 1953, when a jury in Princess Anne County (now Virginia Beach) decided not to remove its sheriff for allegations that he looked the other way when it came to establishments that engaged in “open and notorious gambling and sale of intoxicating liquor.”
Not since 1911, when Roanoke mayor Joel Cutchin was removed from office after a grand jury report declared he allowed brothels to operate in the city, has an elected official been removed by the courts.
Most states allow recall elections of some sort. Virginia does not, except in four places. Hampton, Lynchburg, Norfolk and Portsmouth have city charters that provide for recall elections. In other localities, voters who seek the removal of elected officials must collect enough signatures and go through the courts. The bar for removal is high: It requires either a criminal conviction or “neglect of a clear, ministerial duty of the office, misuse of the office, or incompetence in the performance of the duties of the office.” A criminal conviction is clear enough — someone pronounced guilty by a court. The neglect, misuse or incompetence clause is more fungible and is the section through which both the Martinsville and Purcellville cases run. In Purcellville, Nett’s indictment on bid-rigging charges is related to his official duties, so arguably constitutes “misuse of the office.” The accusations against Jones could also be construed as “misuse of the office,” but we still come back to this: Neither man has been convicted of a crime. Jones hasn’t even been charged with one.
There needs to be some way to deal with an officeholder who simply doesn’t do the job — that would constitute neglect or incompetence. “Misuse of the office” is a more interesting phrase because that could constitute a lot of things — including many things that aren’t criminal in nature.
Let’s suppose an elected official decides to have a side gig running some company and uses his or her government office as a place of business. You go to visit Mayor Flugelhorn on city business and find he’s redecorated the office to serve as his new vape shop. There may be no crime involved, but that would certainly seem to be a “misuse of the office” and maybe the mayor should be relieved of his duties so he could devote his full energies to peddling his vaporous wares, just not on city property.
However, in Martinsville, the removal petition for the mayor alleges a crime and a serious one at that: bribery. If the mayor is suspected of some crime, shouldn’t he be indicted and put on trial? Instead, we have a removal process that essentially allows a group of voters to allege a crime and put the mayor on trial without a criminal indictment. Is that a good idea or no? If yes, then the Martinsville case is proceeding exactly as intended. If no, then perhaps the case of Mayor Jones has exposed a problem with the law.
In a democracy, the weighty responsibility of choosing our leaders belongs to voters. We also give voters the opportunity at regular intervals to remove those officials — through elections. If we create a process that allows a judge to undo the will of the voters, the bar ought to be high. Is it sufficiently high here, or have these cases exposed loopholes? Whatever Jones’ political standing might be in Martinsville, he is, in the eyes of the law, still an innocent man — yet for two months he was suspended from the office to which he was elected (and in an election where he led the balloting for the two council seats available).
The Martinsville case has been strange from the start.
When the citizens’ petition first made its way to court, the commonwealth’s attorney, Patrick Flinn, told the judge he had a conflict of interest. That’s standard in cases involving local officials, be they mayors or law enforcement personnel that prosecutors often work with. The commonwealth’s attorney always cites a conflict, and a special prosecutor from out of town is named. In this case, though, the judge overruled Flinn and told him to proceed with the case. I’ve never heard of a judge telling a prosecutor who has declared a conflict to carry on with the case. The case went on, with the conflicted prosecutor, and the judge — G. Carter Greer — then suspended the mayor, ordered a trial and, soon after, retired. Before he did so, the judge appointed a fill-in for Jones. The law allows this. The substitute was former Mayor Gene Teague, who certainly seems qualified. However, there’s this uncomfortable political reality: In a city that’s almost equally divided racially, where Black residents constitute a plurality, the court removed a Black mayor and replaced him with a former white mayor.
Other judges have picked up the case since then and have since agreed to appoint a special prosecutor, Lynchburg Commonwealth’s Attorney Bethany Harrison, and it now appears the case will proceed in a more normal fashion toward whatever conclusion it winds up with. Still, if we package all this together, we have a citizens’ petition forcing a Black mayor in Southside from office without any criminal indictment whatsoever, while a white vice mayor in Northern Virginia has served nine months under multiple indictments. Maybe Jones is a terrible mayor who is guilty of all the things he’s been accused of; I have no insight to offer on that. All I know is that the same law has allowed for two very different procedures. Does that show how well the law works or how poorly?
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