Attorney request Council’s consideration of memorandum regarding appointment of Jacob Meza

MEMORANDUM OF LAW IN SUPPORT OF THE TOWN CHARTER

Issue:
Was the appointment of a former councilman, defined by the Town Charter as a municipal officer, four days after he held that same office, unlawful where the same charter prohibits the appointment or election of a member of council to an office under the jurisdiction of the council within one year?

Rule:
“No member of the council of the Town of Front Royal shall be appointed or elected to any office under the jurisdiction of the council while he is a member of the council, or for one year thereafter, except that the council may appoint one of the members of the council as town treasurer with all or any part of the duties, powers, obligations and responsibilities of the town treasurer provided by this act. ” Front Royal Town Charter § 47

Analysis:
Virginia statutory interpretation is governed by the following well-established principle:

If [a statute’s] language is clear and unambiguous, there is no need for construction by the court; the plain meaning and intent of the enactment will be given it. When an enactment is clear and unequivocal, general rules for construction of statutes of doubtful meaning do not apply. Therefore, when the language of an enactment is free from ambiguity, resort to legislative history and extrinsic facts is not permitted because we take the words as written to determine their meaning. And, when an enactment is unambiguous, extrinsic legislative history may not be used to create an ambiguity, and then remove it, where none otherwise exists. Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985)(citations omitted).

The phrase, “under the jurisdiction of the council”, in this context clearly and unambiguously refers to and modifies “any office” that the Town Council may appoint or elect.

Town Charter § 6(D) specifically grants the Town Council the jurisdiction to appoint councilman: “The council may fill any vacancy that occurs in the membership of the council for the unexpired term”, provided the appointment is not for one year thereafter holding his office.

In fact, § 9 of Town Charter specifically grants the jurisdiction to the Town Council to fill the vacancy created when a member of council is chosen to serve as mayor. “Should a member of the council be chosen to serve as mayor until the next municipal election such councilman shall be deemed to have surrendered his office as councilman forthwith upon his qualification as mayor and his office of councilman shall thereupon be vacant. The vacancy thereby created in the council shall be filled by the council as provided in § 6 hereof.” (emphasis added).

Section 11 of the Town Charter also makes it clear that the office of councilman is under the jurisdiction of the Town Council where it states, “If any member of the said council shall be voluntarily absent from three regular meetings of the council consecutively, his seat may be deemed vacant by resolution of the council and thereupon his unexpired term shall be filled according to the provisions of this act.” (emphasis added)

Furthermore, the Town Charter grants the Town Council jurisdiction over itself!

‘[E]xcept as prohibited by the Constitution of Virginia or restricted by this charter, the Town of Front Royal shall have and may exercise all municipal powers, functions, rights, privileges and immunities which are now, or may be hereafter, conferred upon or delegated to incorporated towns under the  constitution and laws of Virginia, as fully and completely as if herein enumerated in detail, and no enumeration of particular powers in this charter shall be held exclusive.”  Front Royal Town Charter § 1

The Town Charter specifically creates the Town and enables the Town Council the authority to create its own unique rules and laws that are granted to towns as a whole in Virginia.

Perhaps the most self-evident argument is that IF the appointment of the office of town councilman was NOT under the jurisdiction of the Town Council, we would not be having this discussion because the appointment by the Town Council of a councilman on January 4, 2021, would be null and void because the appointment would be ultra virus, or outside of the jurisdiction, for the Town Council to make such an appointment regardless of the one-year rule.

The only remaining question is whether the position of “town council” is an “office” in the context of Section 47 of the Town Charter. Not only does Section 9 of the Town Charter specifically refer to the “office” as councilman, the Charter defines the councilmen as “officers”:

“The municipal officers of said town shall, beginning with the effective date of this act and thereafter, consist of a mayor, four councilmen, a town manager, a town treasurer, and a town clerk, who shall also serve as the clerk of town council, and such other officers as may be designated by ordinance duly enacted from time to time. The town treasurer may additionally, by ordinance duly enacted, serve as the town’s finance director. Beginning July 1, 1994, and thereafter, the number of councilmen shall be six.” Front Royal Town Charter § 4

The press release of the Town Attorney claiming that Front Royal Town Charter § 47 does not apply to the appointment of councilman because it is found under the caption “Chapter 6 Town Officers” is misplaced. “Captions are intended as mere catchwords to indicate the contents of the subtitles”, Virginia Code § 1-244, Jones v. DCSE, 19 Va. App. 184, 450 S.E.2d 172 (1994). In Foster v. Commonwealth, the Virginia Court of Appeals rejected defendant’s argument that Virginia Code § 18.2-96 did not define “petit larceny” even though the caption to the Virginia Code section specifically stated, “Petit larceny defined ”. 44 Va.App. 574, 606 S.E.2d 518 (2004), affirmed 271 Va 235, 623 S.E.2d 902 (2006).

There is no ambiguity in the phrase, “or for one year thereafter” in the Town Charter. This is a period of time that councilmen are prohibited from appointment or election by the town council to an office under their jurisdiction. Four days is less than one year. The legislative intent, while unnecessary to interpret this section, is furthered by prohibiting a councilman’s appointment within one year of holding the office as councilman by minimizing nepotism and appearances of impropriety. The argument that the statute was only to avoid “double dipping” or a “conflict of interest” is misplaced since there would be no “double dipping” if the councilman is a former councilman. The “conflict of interest” remains applicable due to the recent appointment by his colleagues.

The Town Attorney’s reliance on Virginia Code § 15.2-1535 to assert that there is no time restriction on appointments is misplaced. Virginia Code § 15.2-1535(A) enables appointment to Town Council of a previous Town Council member. This is a correct, but incomplete, statement of law. The Virginia General Assembly permits “a member of a governing body may be named a member of such other boards, commissions, and bodies as may be permitted by general law”. Where the Town Charter precludes appointment for one year after serving as councilman, the Virginia Code does NOT permit appointment by general law. Consequently, the Town’s assertion the Code allows appointment “without any time restrictions” is contradicted by the statute which the Town relies upon.

Conclusion:

Where the appointment of council members is under the jurisdiction of the Front Royal Town Council and the Town Charter specifically precludes appointment or election of a council member to an office under the jurisdiction of the Town Council for one year, except for the office of Town Treasurer, any appointment by the Town Council of a councilman having held the office of  councilman within one year of his appointment would be an ultra virus act, specifically prohibited under the Town Charter, unlawful and null and void. The remedy would be to so find and vacate the appointment by proclamation of the Town Council unless Mr. Meza should decline the appointment. This clear meaning of Section 47 was also followed by former Town Attorneys when former Mayor James Eastham was found ineligible for appointment to the EDA (2009), when Councilman Bret Hrbek was found ineligible for appointment for committee appointment (2011), and when the current Town Attorney distinguished the interim Town Mayor as not a member of Town Council to enable him to serve in the office of interim town manager (2019) within one year after their respective terms of office.

David A. Downes, Esquire
Front Royal, Virginia