realloudoun

Still marveling at the avalanche of utterly irrelevant arguments pouring forth from embattled and perennially ethically challenged Loudoun supervisor Eugene Delgaudio (R-Sterling) and his very loyal Loudoun GOP followers, we spent the last day doing some actual legal research and consulting legal authorities about how petitions for removal of a public officer work in Virginia, and what the legal merits of the case against Delgaudio are.

The summary first:

• The only procedure available in Virginia for removal of an unfit public official is the legal proceeding provided for in Virginia code 24.2-233. This is not a recall, in which a vote is held in a special election; it is rather much more akin to an impeachment proceeding, in which a case is heard on the merits, by a Circuit Court, and a legal decision rendered by the court after a “quasi-criminal” trial in which both parties are permitted to call and cross-examine witnesses under normal courtroom procedures of due process.

• Although the action must be initiated by a petition signed by a number of registered voters equaling 10 percent of the turnout in the last election, and stating in general terms the reasons for removal of the officer, the petitioners are not a party to the case; it is prosecuted by the Commonwealth, and the prosecutor’s duty is “to further the best interest of the Commonwealth, not the interests of the respective petitioners.” Thus who the petitioners are, or what their supposed motivations may be, is completely irrelevant.

• The clear legislative intent of this statute, according to a holding by the Virginia Supreme Court, is “to provide a speedy remedy for the removal of corrupt and unfaithful officials.” It is not necessary to show that the official violated any laws, but rather only that the official is guilty of “misuse of office,” “neglect of duty,” or “incompetence.”

• Although the bar is high for success in such actions, and the law is uncomfortably vague, there is considerable evidence already in the public record to make a legally plausible case for Delgaudio’s removal on the grounds of misuse of office, though probably not on the other two possible grounds of incompetence or neglect of duty.

A judicial, not a political process

A lot of hot air has been emanating from Delgaudio’s supporters this week about the petition being the work of “liberals” and a former unsuccessful election challenger to Delgaudio, and comparing the 10 percent of voters who signed the petition to Delgaudio’s winning margin in recent elections.

All of this is magnificently irrelevant. Virginia’s statutory procedure for removing an official is a legal and judicial process, not a political one; it is not a popularity contest or a re-run of the last election but rather a legal inquiry into whether the official is unfit to remain in office owing to his corruption or unfaithfulness to his sworn duty. The question is not how large his last election victory was: the sole question is whether his own actions in office since his election render him unfit to continue to hold that public trust.

The case, once it is initiated by petition, is prosecuted by the Commonwealth’s Attorney, whose duty is to act solely in the public interest, not on behalf of the petitioners. Thus after the initial hearing on Delgaudio’s case now scheduled for February 4, the petitioners’ role in the matter is over — and they and their attorney play no part in the prosecutor’s investigation or trial that follows.

(Because of his obvious conflict of interest in bungling the initial Delgaudio investigation a year ago, Loudoun’s Very Republican Commonwealth’s Attorney Jim Plowman has already filed a motion with the court asking for a special prosecutor to be appointed in his place.)

The Virginia Supreme Court, in a 1953 ruling (Davis v. Malbon 195 Va. 368) concerning a similar, earlier Virginia statute for removal of officers, held that because such a proceeding is “highly penal” in nature, it is a “quasi-criminal” proceeding in which a stricter standard of proof is required than is usual in a civil trial. The Commonwealth must “prove with clear and convincing evidence that the defendant [is] guilty of one or more of the charges enumerated in the statute, and set forth in the complaint.”

The standard of “clear and convincing evidence,” while less rigorous than the “beyond a reasonable doubt” that applies in a criminal case, requires more certainty than a “preponderance of evidence” that is the rule in most civil proceedings, where the plaintiff merely needs to show that it is more likely than not that his claim is true.

The legal standards for removal

In a preliminary look through Virginia cases, I could not find any successful application of the removal statute, although there have been a number of cases brought in recent years. In a number of these cases, the Commonwealth’s Attorney moved to have the case dismissed (“non-suited”) after concluding that the charges were not sufficient to meet the fairly rigorous standard the law imposes.

In 2013, for example, the Commonwealth’s Attorney of Suffolk County moved to dismiss an action against an Isle of Wight County supervisor who had emailed racist and sexual “jokes” to fellow county officials, concluding that while his actions were offensive and unprofessional, they did not constitute misuse of office, neglect of duty, or incompetence (Commonwealth vs. Bailey).

Also last year a judge found in favor of an Albemarle County supervisor whom petitioners sought to have removed after his conviction of a misdemeanor sexual battery charge (he subsequently resigned), similarly finding that his offenses did not meet the strict standards of the law for removal from office.

In the motion to non-suit in the Isle of Wight case (pdf here), the Suffolk CA’s brief noted that neither the statute nor Virginia case law offer any definition whatsoever of the key terms “misuse of office,” “neglect of duty,” or “incompetence”: “Virginia courts offer absolutely no guidance when interpreting the meaning of these terms.” The Virginia Supreme Court’s 1953 ruling did note, however, that due to the “quasi-criminal” character of the proceedings, the language of the statute must be “strictly construed” and in the case of ambiguity the benefit of the doubt given the defendant.

The Suffolk CA’s analysis thus drew on how these terms are commonly understood in their plain legal meaning, and in other states and in Federal law where they are defined:

• “Neglect of duty” generally requires serious, continued failure to carry out duties explicitly prescribed by law. In Davis v. Malbon, the Virginia Supreme Court at least implicitly agreed that an official’s actions had to be neglect of an actual, legally prescribed duty. (In that case, a sheriff was accused by petitioners of failing to enforce laws against illegal bars and gambling establishments in Virginia Beach. The case against him was dismissed.) The Suffolk CA concluded that because the Isle of Wight supervisor had attended Board meetings, voted, and participated in the Board’s business, he could not be said to have neglected his duty by this strict definition.

• Similarly, “incompetence” is generally interpreted to mean actual incapacity to perform one’s duties, owing to physical or mental impairment or failure to meet a legal qualification for holding the office; Black’s Law dictionary defines incompetence as “the lack of ability, legal qualifications, or fitness to discharge the required duty.”

• “Misuse of office” is a term that appears in many other jurisdictions’ laws regarding corruption in public officials, and here there appears to be a clearer picture of its meaning: the key element is always use of public resources or official powers for private benefit. Wyoming’s corruption statute, for example, explicitly includes the use of “public funds, time, personnel, facilities or equipment for political or campaign activity” in its statutory definition of “misuse of office” (Wyoming code 9-13-105).

Does Delgaudio’s behavior meet the test?

It would appear to be a difficult case to establish that Delgaudio’s behavior qualifies as “incompetence” or “neglect of duty” under the strict legal definitions. Although there is clear evidence that he neglected constituent service — going so far as to order his staff to ignore constituents’ phone calls, while other supervisors testified to the special grand jury that investigated Delgaudio last year that they had had to handle constituents’ problems in Delgaudio’s district because of his neglect — constituent service is not a legally prescribed duty of a county supervisor (in fact, searching through the Virginia code, I could not find a single statute actually defining what the duty of a county supervisor is). Because Delgaudio has attended meetings, voted, and participated in the Board’s business, he has probably done everything that a court would hold is his legal duty.

On misuse of office, however, the evidence is powerful and compelling. There is clear testimony from the special grand jury investigation that Delgaudio used public time and funds to engage in political fundraising and campaigning; that he used public funds and time to have his staff do work for the private benefit of his outside “Public Advocate” organization, from which he personally derived income of $133,000 in 2011 (the last year for which financial disclosure forms are available); and that he had his county-paid staff report to the executive assistant of Public Advocate.

“Material adverse effect”

The other test the removal statute applies is the requirement that such misuse of office have “a material adverse effect upon the conduct of the office.”

As with everything else in the removal statute, the meaning of this phrase is undefined, and Virginia case law offers no guidance.

The phrase “material adverse effect” often appears in contract law to mean that the harm done must be “measurable or demonstrable.” This admittedly may be a tough hurdle to show in Delgaudio’s case, depending on how the court interprets it.

Delgaudio’s censure by the Board last summer, and the punishment he received of removal of his staff, could be in itself be argued to have a “material adverse effect” on his ability to discharge the duties of his office. Likewise, if his corrupt actions have impaired public trust, that could constitute a “measurable and demonstrable harm.”

But Delgaudio’s lawyer will presumably argue that regardless of Delgaudio’s conduct, it has not impaired his ability to represent his district nor has it impaired the ability of the Board to conduct its normal business.

This question appears to be largely uncharted legal territory, which the trial judge will have to rule on.

What happens if Delgaudio is removed?

If a judge rules against Delgaudio, he will be immediately removed from office. (The statute allows the court to suspend an officer while the case is being heard and until a final appeal to the Supreme Court is decided, but that seems very unlikely to happen here; the usual standard for taking such a drastic interim step is a finding of immediate harm if he continues in office and a high likelihood that the plaintiffs will succeed).

State law governing vacancies in local governing bodies then requires the court to issue a writ for an election to fill the vacancy, to be held “promptly” but not later than the next November general election. (So much, by the way, for Delgaudio’s whingeing argument that the case against him is an attempt to “disenfranchise” the voters of his Sterling District. It’s rather a chance to remove a corrupt and faithless pubic official, and allow the voters of the district to freely select a competent replacement to represent them.)

Before the election, the Board of Supervisors may appoint a temporary replacement to fill the vacancy, or the court may do so if the Board fails to, but apparently neither is actually required to, and there is no legal reason the Board cannot conduct its business temporarily with only 8 members.

But in any case, the removal statute requires quick action: the case takes precedence over every other case on the court’s docket. If the judge rules on Tuesday to proceed to trial and appoints a special prosecutor, we can expect a trial and a decision within the next few months.