From a prison, ex-Norfolk treasurer Anthony Burfoot is fighting his removal from office
By Scott Daugherty, The Virginian-Pilot – 12/5/2017
For most of the past eight months, former Norfolk Treasurer Anthony Burfoot has been in a minimum-security federal prison camp in rural Pennsylvania.
He did not seek reelection last month and – as a convicted felon – could not have won it if he had tried.
But Burfoot is still fighting the court orders that suspended him from office in February and removed him for good in April.
He won’t be able to get his job back, but he wants his money.
Burfoot’s attorney, Andrew Sacks, will argue Tuesday afternoon for the state’s highest court to take up his client’s appeal. Among other things, he says Norfolk Circuit Judge Everett Martin, who removed Burfoot, was wrong to even hear the case. Sacks said Martin should have recused himself, as he did with a citizen recall petition that also targeted Burfoot.
If Burfoot prevails and the Virginia Supreme Court rules he should not have been suspended or removed, he could be awarded back pay. The court is not expected to make any decision Tuesday.
It is unclear exactly how much money is at stake. Burfoot, a Democrat, made $164,446.64 in 2016, according to a city salary database obtained by The Virginian-Pilot. That means he would have made about $26,000 between when he was suspended and sentenced – and almost $142,000 between his suspension and the scheduled end of his four-year term Dec. 31.
In an interview, Sacks said his client is pursuing the appeal both because he wants “what is due to him” and to protect his legacy.
“We just think it was premature to remove him,” Sacks said, adding they don’t believe Burfoot’s lengthy career in public service should have ended with a court order.
A federal jury convicted Burfoot of six felonies in December 2016, finding he sold his vote while serving on the City Council and later lied about it under oath. In turn, Norfolk lawyer Ron Batliner, who was running at the time to become the city’s commonwealth’s attorney, petitioned the court to remove Burfoot from office and Martin ordered him suspended without pay. He announced his decision Feb. 17, but made it effective Feb. 20.
“If Burfoot is not suspended from office the public will continue to pay a substantial salary to one convicted … of crimes of dishonesty,” the judge wrote. “More importantly, as Batliner urges, there will be further erosion of the trust the residents of the City of Norfolk ought to have that honest men and women administer their government. The Court finds this the most compelling consideration.”
U.S. District Judge Henry C. Morgan Jr. sentenced Burfoot on April 17 to six years in prison. One week later, Martin convened another hearing to permanently remove Burfoot from office and forfeit his salary, which had been going into escrow.
Sacks questioned the legality of Martin’s actions from the beginning. He noted that state law says an official cannot be permanently removed until “all rights of appeal under Virginia law have expired.” Burfoot is appealing his convictions to the U.S. Circuit Court of Appeals for the Fourth Circuit.
But Martin ruled Burfoot had no rights of appeal “under Virginia law” because his conviction was in federal court.
In his petition to the Virginia Supreme Court, Sacks argued that if Martin’s reading of the law is correct, than the law violates the 14th Amendment to the U.S. Constitution by treating someone convicted of federal crimes differently than someone convicted of the same crimes in state court. Among other clauses, the 14th Amendment says a state may not deny anyone “the equal protection of the laws.”
Batliner will not address the court Tuesday, but he did file a brief in opposition to Sacks’. The brief says Martin’s decisions were correct and supported by the law.
Tuesday’s hearing will only be in front of three judges. An expert in Virginia appellate law said the odds are against Sacks, since the Supreme Court typically agrees to hear only about 15 percent of the civil cases presented to them.
And those odds could be even lower now, said L. Steven Emmert, an appellate lawyer based in Virginia Beach who publishes Virginia Appellate News and Analysis. The court used to hear cases when only one member of a three-judge panel wanted to, but since August, it’s taken two votes.
If the Supreme Court agrees to take the case, it could schedule arguments, at which Sacks and Batliner would make their cases.
Burfoot’s chief deputy, Amy Ortega, became interim treasurer following her boss’ suspension. Later, the eight judges of the city’s Circuit Court appointed former city manager Jim Oliver to head the office for the remainder of the year.
Last month, Del. Daun Hester, a Democrat, won the job with more than 56 percent of the vote in a four way race. She’ll take office Jan. 1.
Scott Daugherty, 757-446-2343, firstname.lastname@example.org