By Dan McDermott
Warren County Report
In an opinion that may have sweeping ramifications across the Commonwealth of Virginia, Attorney General Bob McDonnell has issued a much-anticipated opinion that appointed members of local bodies do not have the same voting rights in certain circumstances as do members elected by the governed. The opinion also states that the appointment of Shae Parker to Front Royal’s Town Council was invalid because it was made after an allowed 45-day period.
There is a dispute in Front Royal on the “45 day” issue as to whether that by taking the oath of office as mayor early, the new mayor was in effect resigning from his council seat at the same time, creating the early vacancy and the situation the town now finds itself in. This dispute does not appear to be addressed in the AG opinion however in a separate cover letter from the AG’s staff, three Supreme Court decisions were cited that rule that taking an oath for a new office is a de-facto resignation from a different office if that office cannot be held at the same time.
The opinion states that a member appointed to local governing bodies does not have voting rights when the state’s code or constitution requires that specific votes require a certain number of the “elected” members of the body.
There is speculation that there may be lawsuits across the state from parties who have been assessed fees or otherwise effected by decisions made by local government bodies that included appointed members. Presumably, only issues voted on in the past two years could be the subject of litigation since state law requires that localities be notified within two years of pending action.
In an unusual twist, the opinion expressly states that it is not calling into question the validity of a contradictory Circuit Court decision in Rockingham County while seemingly and obviously doing so.
From the opinion:
You ask whether the Town Council for the Town of Front Royal (the “Town”) under the Charter of the Town of Front Royal (the “Charter”), may appoint an individual to serve the remaining two years of the unexpired term of a council member elected as mayor, or whether such individual must be elected pursuant to the requirements of Article VII, § 5 of the Constitution of Virginia. Further, you ask whether the Town Council may appoint such individual after a vacancy has existed for more than forty-five days. You also inquire regarding whether the Town Council may call a special election to fill the vacated council position. Finally, you ask whether the term “elected” members of the governing body as used in several provisions of Title 15.2 includes a member who is appointed by the Town Council to serve the remaining two years of the unexpired term of the council member elected as mayor in contrast with an individual elected by the qualified voters of the Town in a special election.
It is my opinion that the Charter of the Town of Front Royal authorizes the Town Council of Front Royal to appoint an individual to serve the remaining two years of the unexpired term of a council member elected as mayor. Further, it is my opinion that the Town Council is not authorized to appoint such individual when the vacancy has existed for more than forty-five days. It also is my opinion that pursuant to § 24.2-226, the Town Council may petition the circuit court to issue a writ of election to fill the vacancy in an election that complies with the requirements of Article VII, § 5 of the Virginia Constitution. Finally, it is my opinion that an individual appointed to serve such unexpired term is not an elected member of the Town Council as that term is used in Title 15.2.”