Town likely to challenge 45-day portion of AG ruling

Court likely to decide if Shae Parker is a Front Royal Town Councilman

By Roger Bianchini
Warren County Report

On Dec. 3, Virginia Attorney General Robert J. McDonnell issued an anticipated formal opinion on the status of Front Royal Town Councilman N. Shae Parker’s seat.

That opinion mirrors the informal notice sent to 10th District Del. Clifford L. Clay Athey Jr. by Senior AG Counsel Stephanie Hamlett on Oct. 28. It concludes that the town exceeded the 45-day limit to appoint a replacement for Mayor Eugene Tewalt’s vacant counsel seat. Tewalt’s council seat was not up for election this spring when he successfully ran for mayor. Parker, who finished fourth in the spring election just 43 votes (one percent) behind Tom Conkey for the final of three council seats up for grabs, was appointed from a pool of six applicants on Aug. 11. That date was 43 days after the town believes Tewalt assumed the mayor’s office after former Mayor James Eastham’s term expired July 1.

Despite apparent clarification from Athey in seeking the formal opinion that the town contends Tewalt never resigned his seat when he took the mayor’s oath of office on July 27, four days prior to assuming the office, the AG opinion disagrees. That opinion continues to assert Tewalt did in fact resign his seat when he took the mayor’s oath. It is not immediately clear to this reporter amidst the opinion’s rampant legalese why this opinion is held. However, earlier discussion with other attorneys indicated the legal belief the AG would contend that public officials cannot hold two seats at once, and in such cases the higher office prevails.

Tewalt explained he took the oath early to accommodate his daughter’s wish that she and Tewalt’s grandson could be present.

The town is likely to argue in circuit court that since Eastham was still mayor until July 1, Tewalt could not have vacated his council seat on June 27 even though he took the mayor’s oath that day.

Front Royal Vice Mayor Bret Hrbek has said he believes it has been common practice over the years for newly elected officials to occasionally be sworn in early to accommodate personal or court scheduling conflicts.

So, did Front Royal have two mayors for four days? – Does it have one now?

Are there five or six sitting councilmen at the moment?

Appointed, not elected

The AG opinion also rules such “appointed” members, even when done legally, do not meet the Virginia Constitution’s definition of an “elected member” and so cannot vote on certain matters of municipal business. Those include appropriations over $500, bond issues, annexation, disposition of real estate and awarding franchises. On the advise of Town Attorney Tom Robinett, the town has been working on the assumption that latter point was true from the time of Parker’s appointment.

Referencing a 1996 AG opinion, McDonnell also asserts the town must now petition the circuit court to “issue a writ of election” to fill Parker’s seat. Perhaps coincidentally, Hamlett’s cover letter to Athey in late August suggest such legislation to solve the problems of full voting rights to all municipal governing body members. Athey, a Republican like McDonnell, has expressed a desire to introduce such legislation requiring special elections to fill all vacant municipal body seats in the coming General Assembly session.

The new opinion expressly overrules a 1975 AG opinion that “selected” by the other board members fits the Virginia Constitution’s section ruling on approval of some municipal business by a “majority of the elected members.” McDonnell’s opinion explains that it does not and cannot overrule a 26th District Circuit Court decision in Rockingham County upholding the 1975 AG opinion on a matter pertaining to the Public Finance Act. It is that Rockingham Circuit Court decision that gives those in disagreement with the new opinion hope it can be fought successfully in circuit court.

Parker speaks

The afternoon of Dec. 5, Shae Parker released a statement about the Dec. 3 formal opinion released by McDonnell on the status of his Aug. 11 appointment to the Front Royal Town Council. In the opinion the Virginia AG holds that Eugene Tewalt’s council seat became vacant on June 27 and so Parker was appointed 47 days, rather than 43 after the council seat became vacant. Virginia law allows the town to petition the court to appoint Tewalt’s replacement, something it is likely to do if the court rules against the town on the 45-day AG opinion.

“To the citizens of the Town of Front Royal,” Parker began. “In light of a formal opinion being issued December 3rd by the Virginia Attorney General’s Office on my situation of being a duly-appointed member of the Front Royal Town Council, at this time I will side with the Town and its legal staff in asserting they acted within their rights and means. With that, though it has been suggested I resign my selection as councilman, I still intend to act as a representative of the citizens of the Town of Front Royal and will not resign unless asked by the council or directed by the circuit court.

“Since the attorney general’s opinion is just that, his opinion, the circuit court should have the final say on this matter. If the court finds I was not appropriately selected, then I can’t resign a position I never held. If the court upholds the Town’s claim then I would look forward to serving the remainder of the term.

“Over the past four months it has been my honor and privilege to serve on council and serve the citizens of Front Royal. Regardless whether my selection is upheld or this seat is put up for special election, I look forward to bettering our community and providing the greatest degree of safety and welfare a government should provide. Though some of my experience on council has been trying on my family, I still feel that service to one’s neighbors is worth all we’ve been through.”

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