Special election may be required to fill vacant town council seat

The experience of a former appointed Front Royal Town Council member has led a current member to question whether council will be able to fill a pending vacancy by appointment.  If council appoints a replacement for Bébhinn Egger, whose resignation due to marriage and a move out of state is effective July 1, council will have two appointed members.  On January 23, Chris Morrison was appointed to fill the seat vacated when Hollis Tharpe left council to take the mayoral seat he won in November.

There were three empty seats at the June 19 council work session – how to fill one of them that will remain empty after July 1 has become an issue. Photos/Roger Bianchini

Such a scenario could prevent council from achieving a required supermajority – five of six members – to approve a budget or even specific budget items.  That is because there are conflicting state codes on whether appointed members can vote on large budget items.  Former Councilman and Vice-Mayor Shae Parker found that out in 2008 when he was appointed to fill a vacancy after finishing fourth in the previous election (the top three finishers are elected to council).

At the time there were questions raised and an attorney general’s opinion sought to clarify the matter.  And what Town Attorney Doug Napier recalls, and has found out since researching the matter due to a recent inquiry by Vice-Mayor Eugene Tewalt, is that there are dueling state codes.

“It is not resolved yet.  One statute says, yes, an appointed member can vote on large budget items; and one statute says, no, an appointed member can’t …” Napier told us on June 21.

Contacted on Friday, June 23, Mayor Tharpe said discussion of the situation was poised to be added to the Closed Session agenda of the Monday, June 26, council meeting.

Is Mayor Tharpe toting home town attorney research on state statutes assembled on the voting ability of appointed members to elected bodies? – Nah, that one’s probably BIGGER …

Contacted about his experience nearly a decade ago, Parker noted there was a statute referenced that said, “Appointed members of elected bodies were the same as elected members.”  However, he recalled that statute was challengeable by aspects of other state codes.

“And in the case of a lack of clarity in state codes, the Constitution trumps other applicable statutes – and the Virginia Constitution says ‘only elected officials may vote on budgets,’ ” Parker pointed out.

Council is currently taking applications for Egger’s pending vacant seat on the assumption her replacement would be appointed.  Mayor Tharpe said the cut-off day for applications is June 30, adding that council had 45 days from July 1 to fill Egger’s vacant seat by appointment.

Asked if the necessity of a special election would impact the time council has to fill the vacancy, Town Attorney Napier said thus far his exploration indicates council would have to petition the circuit court for a special election within 15 days of the vacancy.  However, the statute appears to indicate that the special election would be scheduled with the next general election in either May or November.  Locally, the next election is a county election slated for November.  It was not clear if council was willing to foot the bill, it could stage the special election prior to November.