Debate continues over councilman's full voting rights

By Ben Orcutt -- Daily Staff Writer

FRONT ROYAL — As debate continues on whether a newly appointed town councilman has full voting rights, the ultimate decision may be up to the courts.

On Monday, the Town Council voted unanimously to appoint N. Shae Parker to complete the remaining 23 months on Mayor Eugene R. Tewalt's unexpired council term.

Tewalt was elected to the panel in 2006 and had two years remaining on his four-year council term when he was elected mayor in May.

Citing the state code and the Virginia Constitution, Town Attorney Thomas R. Robinett has said there are some matters that require approval from a majority of elected members of the panel, and that because Parker was appointed and not elected, his vote would not count. Those instances include votes on special assessment, conveyance of town property, the budget and annexation.

University of Richmond Law School professor John Paul Jones weighed in on Robinett's interpretation of the code on Friday.

"I'm always happy when a lawyer reads the statute carefully," said Jones, who's been teaching constitutional law at the University of Richmond for 26 years. "I can see how reading it carefully he would come up the problem he's come up with. But once you turn away from that in terms of other things, like the charter and other parts of Virginia code, what's the point of having a process of filling vacancies if the most important power is denied to appointees?"

Jones also said that Robinett's argument is not "outlandish" when considered in the context that the General Assembly may not have intended for appointees to vote on certain issues.

"But I think that the other argument that voters are entitled to the same representation by a substitute, that's the one that I'd prefer until somebody proves something different to me," Jones added.

At the request of Councilman Thomas H. Sayre, Del. Clifford L. "Clay" Athey Jr., R-Front Royal, has asked the attorney general's office for a formal opinion on the matter.

"I have conducted research on the subject, and since 1607, the founding of the commonwealth of Virginia at Jamestown, I am unaware of any person being appointed, selected or elected by a local governing body to fill a vacancy that has not had full voting rights," Sayre said.

Sayre referred to a 2002 court case in the 26th Judicial Circuit, which includes Front Royal. In that case, Hutton v. Town of Elkton, now-retired Judge John McGrath ruled that two appointed members of the Elkton Town Council could vote on the issuance of bonds.

Vice Mayor Bret W. Hrbek said Friday that a preliminary opinion from the attorney general's office indicates that appointees are not elected members.

"It seems pretty evident [from] what Tom Robinett has told us and the attorney general's preliminary opinion that appointed members do not have some of the same voting rights of elected members," Hrbek said. "I can understand why the General Assembly may have made that point differentiating the different ways of arriving at the council office. For bigger issues like assessment, for annexation, as an elected official, I was chosen by the electorate to do that, whereas that appointed person is appointed by another group of people. The General Assembly took time to carve these provisions out and they named them specifically and I think that holds a lot of weight.

"I'm standing by what the town attorney is advising us. It seems pretty evident to me. I think the law's pretty clear on this."

Councilman Thomas E. Conkey believes that that Robinett is simply advising the council of possible risks and that a judge may have to be the final arbiter. In the meantime, Conkey said, the council is going to have to keep in mind that on certain issues, in order to be safe, Parker's vote should not be counted to gain a majority.

"So we're going to have to work extra hard to come up with a decision that we all can support so that it will be a moot point," Conkey said.

* Contact Ben Orcutt at borcutt@nvdaily.com