State house bill would allow recall of elected officials

By Tonia Moxley, Roanoke Times – 1/14/2017

A proposed Virginia House of Delegates bill would institute recall elections in the commonwealth for the first time.

Last year at least five elected official faced citizen actions to remove them from office. Citizens have mounted petition drives to remove a Prince William County School Board chairman, three members of the Bath County Board of Supervisors and Montgomery County Circuit Court Clerk Erica Williams. Those three cases, all of which under current law must be decided by a court, prompted Del. Rich Anderson, R-Prince William , to ponder the state’s process for removing elected officials.

“Why is a judge making that determination?” Anderson said. “Judges don’t like to do this because they are hesitant to undo an election result. I want to put it in the people’s hands and not in the hands of the third branch of government.”

Currently, officials can be removed by a judge, but not recalled by voters. The bar is high for removal. At least 10 percent of the number of registered voters that voted for that official must sign a petition to remove them. A judge then reviews the case to determine if the allegations meet the legal standard for removal. An official who is convicted of hate, drug and sex crimes, or for “neglect of duty, misuse of office, or incompetence” that have a “material adverse effect upon the conduct of the office” can be removed, according to law.

Despite several petition drives, no official has been removed in recent memory.

The petition to remove Williams, who riled up Montgomery County residents when she declined to reappoint four deputy clerks, was dismissed on a technicality by a judge in October. Prince William County School Board Chairman Ryan Sawyers was accused in a petition of misuse of office over disputes with employees. He remains in his position, according to that county’s website. In the ongoing Bath County case, three supervisors are accused of violating open meeting rules in the dismissal of a county tourism employee.

Anderson’s bill, HB 1733, would require that 20 percent of the number of registered voters that cast ballots for the disputed office sign a petition asking for a recall election. If the circuit court clerk in that jurisdiction verifies the signatures, a judge would then be required to order a recall election. If the office holder is recalled, a special election would be held to replace him or her, according to the bill.

There is debate over who would benefit most under Anderson’s proposal – dissatisfied voters or elected officials.

Steven Emmert is an appellate attorney, who in 2011 represented 40 Gloucester County residents who were fined by a judge in a failed 2008 removal case because a judge said the residents abused the system. The judge fined each $2,000. The Virginia Supreme Court reversed the fines. Emmert wrote in an email that Anderson’s bill could benefit officials.

“It is substantially more difficult to get 20 [percent] of the voters to sign a petition than it is to get 10 [percent]. In this sense, the bill is substantially friendlier to office-holders than is the current system,” Emmert wrote.

“The other major change is the identity of the ultimate decisionmaker. In my view, this change also favors the office-holder,” Emmert wrote. “The pro-office-holder effect will be more profound in ‘safe’ districts than in highly contested ones, but the shift is unmistakable.”

One major difference in the removal statute and the recall proposal is the weight of evidence.

“Currently a judge decides, after what is effectively a bench trial (no jury; just the judge), if the office-holder has neglected his or her duty, misused the office, etc.,” Emmert wrote.

Under Anderson’s bill, there would be “no trial and no evidence, unless you consider campaign literature to be ‘evidence,’ Emmert wrote. “Whether the office-holder actually committed the acts complained of — for example, misuse of office — is relevant only to the extent any given voter decides it’s relevant, but there is no legal proof required and no legal defense is necessary.”

That proposed change worries Jim Cornwell, an attorney who has represented local governments and officials for more than 40 years. He is defending the three Bath County supervisors.

“Virginia has determined that there has to be grounds to remove someone from an elected position. We have to respect the decision of the voters in electing someone to office, and unless that office holder does something illegal … they should be allowed to govern because they were elected to do so,” Cornwell said.

Anderson’s bill includes no safeguards, Cornwell said. Some of the allegations that could lead to recall are highly subjective, such as misuse of office, and without judicial review could be abused.

“If I vote for a tax increase, do I get accused of misuse of office, neglect of duty or incompetence in performance of duty?” Cornwell said.

The bill could destabilize government and lead to a chilling effect because in small communities like Bath County, as few as 42 people could force a recall election, Cornwell said.

That could paralyze officials, who might face recall for an unpopular but necessary decision.

“Local governments, more than ever, have to make tough decisions,” Cornwell said. “And they should not be penalized for making tough decisions.”

The bill could also be a financial burden, Cornwell said. Localities could be required to pay for a regular election, then a recall and possibly a special election to fill the contested seat. In this way, Anderson’s bill could function as an unfunded state mandate, he added.

Anderson said he doesn’t think the bill would be harmful. Despite a number of recent removal petitions, the law is rarely used, he said.

“In the end, I’m just changing who would make the determination,” he said. “I have this old-fashioned belief in the collective wisdom of the voters.”

Recall elections work in other states, he added.

Anderson’s bill has been referred to the House Privileges and Elections Sub-committee on Elections.