County officials, EDA board members have good day in court – will it last?

After hearing combined arguments from attorneys for 11 of 13 County municipal and Economic Development Authority defendants present on why ancient English Common Law did not create 21^st Century legal grounds for criminal prosecution regarding unintentional dereliction of the oversight duty of their office, Judge Bruce D. Albertson ruled for those defendants.

Also on Monday Albertson denied a Removal Petition request that all five sitting County Supervisors be immediately removed from the conduct of their office prior to the resolution of a Show Cause Hearing on that Removal Petition filed October 18.

“For me as a judge to act now is potentially influencing the outcome of the election,” Judge Albertson observed in denying immediate removal.

However in a possible harbinger of things to come, the judge added that “there are other conceivable outcomes civil and criminally” as to a potential final resolution of this citizen-elected official dispute.

Some litigants, attorneys and reporters home away from home – the Warren County Courthouse – Royal Examiner File Photos/Roger Bianchini

On a motion by defense counsel for the supervisors that petition was sent to the County Registrar for verification that the required 10% of county voters in each voting district signing the petition, were in fact registered county voters. A return date of November 22 at 8:45 a.m. was set to get the result of that Registrar’s Report.

More on that initial Removal ruling later, but first to the court decision quashing the criminal charges against those county supervisors, the county administrator and past and present EDA board members.

After retiring to chambers to consider his ruling after an hour and seven minutes of legal arguments and counterarguments, 13 minutes later Judge Albertson returned to sustain the collective motions to quash the three misdemeanor indictments against all 11 defendants whose attorneys were present and participating in the arguments.

Upon that ruling, an observing co-counsel for Tom Sayre and Tony Carter, whose counsel was not present due to a scheduling conflict, both rose to ask that they or their client be included in the ruling, drawing some laughter from a packed courtroom.

“That makes sense,” Judge Albertson said, allowing the joining of the two in the judgment as had been discussed earlier were the ruling to go that way.

Tony Carter, here at Sept. 24 misdemeanor booking at RSW Jail, may be wondering if he has to pay his criminal attorney now that the charges against him have been collectively quashed in his attorney’s absence.

Albertson noted he was unable to find any evidence codifying misfeasance and nonfeasance as prosecutable misdemeanor offenses in the Commonwealth of Virginia, even under English Common Law at the base of U.S. law. He said the only related legal reference to the two charges he could find was in a 1967 civil case in England.

“What else is out there? It’s like finding a black hole by the gravity moving around it,” Albertson said, noting that the closest DCC Code that was found to bring the charges under was “solicitation”.

Solicitation of what, the court may have asked.

Acting Commonwealth’s Attorney Bryan Layton argued that while “as ill-defined as it may be, there is a legal precedent” for the charges, in arguing against the motions to quash the indictments.

Several attorneys jumped on that argument.

“ ‘As ill-defined as may’ be is repugnant to Virginia Law,” David Crump, who represented four defendants, replied to Layton’s assertion of precedent.

“ ‘As uncertain and vague as it is’ supersedes due process and fairness and is repugnant to the Virginia Constitution,” David Silek, representing former EDA Treasurer William “Billy” Biggs, added.

As Royal Examiner reported on September 8, of the three “feasance” failings of public office only malfeasance is codified as criminal by the Virginia Legislature, and that as a misdemeanor offense, though one that could lead to more serious charges.

The dividing line between malfeasance and misfeasance and nonfeasance is intent.

Malfeasance is defined as “intentional conduct that is wrongful or unlawful” while nonfeasance is defined “as a failure to act where there was a duty to act” and misfeasance is described as “conduct that is lawful but inappropriate”.

All the charges relate to the County and EDA Boards’ continued allowance of former EDA Executive Director Jennifer McDonald to operate without oversight, restrictions or direct supervisory control as a financial investigation of EDA affairs was closing in on her between September and late December 2018. McDonald resigned under mounting pressure from that Cherry Bekaert financial fraud investigation on December 20, 2018, admitting to liability for the return of $2.7 million in EDA assets. The EDA claims her liability is much higher.

While not taken between September and December 2018, this photo of Jennifer McDonald on the job as she continued to be while under increased legal and audit scrutiny in late 2018 is at the root of the Removal Petition against County Supervisors.

The misdemeanor indictments cited McDonald’s movement of around $309,000 to her own benefit during that four-month period at the end of 2018, setting the groundwork for the charges. While the EDA civil litigation is seeking return of a total of $21.3 million now, due to the one-year statute of limitations on misdemeanor charges, earlier transactions could not be included in the indictments.

Removal on hold

Helping fill Circuit Courtroom B Monday morning were a number of citizens involved in the Removal Petition filed against all five County supervisors on October 18. As noted above, they left disappointed.

Not only was their request for immediate removal of the Warren County Board of Supervisors denied, but the foundation of their petition, the criminal misdemeanor indictments against the supervisors regarding a lack of due diligent oversight of EDA operations the last four months of 2018 were quashed as not legally prosecutable by Virginia law, no matter how deep you dig back to its roots in English Common Law.

Following adjournment, Removal Petition attorney Tim Johnson said he did not believe the quashing of the criminal indictments was a major blow to the Removal initiative. While no longer under criminal indictment for a lack of supervisory oversight of EDA finances at the hands of an executive director under increased scrutiny, misfeasance and nonfeasance can be “grounds for impeachment of a high official” Johnson told the press outside the courtroom.

So involved supervisors still on the board in the wake of the November 5 Election can be held accountable for past failures, Johnson believes. As noted during the hearing two of those supervisors, Board Chairman Dan Murray and Linda Glavis are not seeking reelection. Tom Sayre is running for reelection against Walter Mabe in the Shenandoah District. And Archie Fox and Tony Carter are not up for reelection for another two years.

With the citizen petition filed with the Court, the Commonwealth’s Attorney’s Office has taken up the Removal case for the plaintiffs. Acting Commonwealth’s Attorney Bryan Layton called the citizen loss of faith in their County elected officials “an unusual circumstance in my experience”.

In arguing for the plaintiff’s request for the immediate suspension of the supervisors said he believed “the damage to the public trust is so severe” as to justify the immediate suspension of their powers to govern.

County Attorney Jason Ham and co-counsel Jim Cornwell countered that there was no basis in the facts of the citizen petition to justify such a radical suspension of the municipal government function.

Cornwell said in arguing four such cases he had never seen immediate removal authorized by the court. The only case he was familiar with where the judge did order removal, with a six page Opinion he noted, was a Norfolk City Treasurer who had been convicted on six embezzlement charges – “Here’s there’s none of that,” Cornwell argued. “There is some vague reference that ‘something may happen.’ There is no evidence, it is a feeling of some people … Why suspend on an opinion?” he asked the court.

At the request of the Commonwealth, Albertson retired to chambers to watch Royal Examiner videos of two county meetings, on October 1 and October 25, with counsel from both sides before rendering that decision. Arguing on behalf of the petitioners, Layton said he believed the videos illustrated the unusual and high level public “loss of faith in the Board of Supervisors” due to the EDA financial fraud situation.

Court adjourned at 11:20 a.m. and reconvened at 11:42 a.m. following the video viewing.

Judge Albertson observed of what had been viewed, as one video segment that “devolved into yelling” and another that had been “very respectful” in its conduct of public speakers expressing themselves.

County Attorney Ham summarized what he had seen as less than ten people expressing public dissatisfaction at the hiring of legal counsel for the supervisors at taxpayer expense. He argued against overturning the electoral will of the full voting population of the county for a vocal minority of its citizens.

Layton countered that while only 10 citizens may have spoken publicly, many more were there in support of those 10; and the citizens’ petition when verified would represent 10% of the voting population, not just 10 citizens.

However Judge Albertson denied the immediate removal request.

He called it a “drastic remedy” adding that the Removal Petition itself was a “drastic measure” itself and perhaps a “pressure valve” on public discontent.

And as noted above, he worried over a judicial action that could influence a looming legislative election just two week away and alluded to other possible legal directions this citizen-elected official dispute might take.

Criminal and non-criminal dereliction of public duty: Where might they apply in the EDA financial scandal?

Defense attorneys move to quash grand jury misdemeanor indictments