Decision on County Supervisors Removal Petition not likely until January 2020

After hearing just over 40 minutes of counsel arguments on a defense motion to dismiss the citizen Removal Petition against the entire Warren County Board of Supervisors, Judge Bruce D. Albertson took those contrasting legal stances under advisement. The Harrisonburg-based Chief Judge of Virginia’s 26th Judicial District handling the myriad EDA-related civil and criminal cases told the plaintiffs and defendants present and their attorneys that he would likely not have a decision before the turn of the year.

That fact makes that decision a moot point for three lame-duck supervisors who will be leaving office at the turn of the year due to either retirement, board Chairman Dan Murray and Linda Glavis; or defeat at the polls in November, board Vice-Chair Tom Sayre. None of that trio was in court Tuesday afternoon for the lone 2 p.m. civil docket matter in Warren County Circuit Court.

However, Happy Creek Supervisor Tony Carter and Fork District Supervisor Archie Fox, whose seats were not up for election this year, were interested spectators along with County Administrator Doug Stanley. Carter, Fox and Stanley on the defense side of Circuit Courtroom “B” were heavily outnumbered by interested citizens nearly filling the plaintiff’s side of the courtroom.

For Supervisors Tony Carter and Archie Fox, the criminal allegations of municipal negligence are behind them, but the civil court fight to retain their board seats continues. Royal Examiner File Photos/Roger Bianchini

What they heard was a restating of the defense contention that the County’s elected officials did not have direct oversight of the activities of former Front Royal-Warren County Economic Development Authority Executive Director Jennifer McDonald, and so have been wrongly targeted by the citizen ire over what stands at this point as a $21.3 million EDA financial scandal and resulting civil and criminal litigation. McDonald is alleged to have been the primary player in that financial scandal in the wake of the Cherry Bekaert investigative audit of EDA finances commissioned by the EDA and County Supervisors in September 2018.

McDonald currently faces 32 related financial felony charges and is the connecting figure in the EDA’s $21.3 million civil litigation against 14 defendants. Those defendants include several relatives, friends and business associates among others, accused of conspiring to defraud the EDA over a period of years during her decade of executive leadership of the Town-County economic development authority. Several of those civil case defendants have a decision pending on defense motions to strike them from the civil litigation alleging an intertwined conspiracy revolving around McDonald.

James Cornwell, co-defense counsel with current County Attorney Jason Ham, took the lead Tuesday afternoon in presenting the defendants’ case for dismissal of the Removal Petition. Recently appointed Rockingham County Assistant Commonwealth’s Attorney Michael Parker argued for the citizen plaintiffs.

Cornwell reminded the court that the misdemeanor criminal misfeasance and nonfeasance charges against all the supervisor that played heavily in the Removal Petition had been dismissed by the court. In granting that dismissal Judge Albertson ruled that he could find no basis, even in English Common Law upon which former EDA Special Grand Jury prosecutor Bryan Layton had based those charges brought by the EDA Special Grand Jury, that such unintentional acts of negligence were criminal by statute in Virginia.

However, Parker argued that while the criminal charges were gone, the negligent behavior of the county’s elected officials remained for consideration in civil court. In the now-dismissed misdemeanor criminal charges that negligence is alleged to have allowed the then EDA executive director to move another $309,000 dollars after the Cherry Bekaert forensic audit of the McDonald-led EDA had begun in September 2018.

And the Removal Petition alleges the county supervisors failed to heed “red flags” concerning McDonald’s ongoing conduct in 2018, including a published story earlier that year in which she alleged $2 million in casino slot machine gambling winnings over a three-year period during which she was using large amounts of cash in her private real estate business; acknowledging falsifying invoices; and land for a “data center project being sold substantially below market value”.

Cornwell countered for the defendants that the Warren County Board of Supervisors has no direct oversight authority of the EDA executive director, that such authority rested solely with the EDA Board of Directors.

“The Commonwealth will claim that the County authorized the expenditure of funds … and failed to exercise discretionary authority … but she (McDonald) was not an employee of the County, she was an employee of the EDA,” Cornwell told the court.

Cornwell’s primary point was that while the EDA was co-created by the Town and County governments, which for about 45 years shared EDA board appointment authority, it is that appointed EDA board that has direct supervisory control of its executive director, not the County supervisors, nor the Town’s elected officials to whatever degree they choose to remain proactive in EDA oversight.

Cornwell also cited a number of case histories he said indicated Removal authority was focused on personal abuses of office, rather than the type of unintentional lapses cited in this Removal Petition.

But rather than get bogged down in legal technicalities, plaintiff counsel Parker asked the judge to focus “on the simplest of matters – it’s just neglect, the board of supervisors was asleep at the wheel.”

He also disputed the defense contention the County officials “had no control of the EDA – not true, the board of supervisors has the authority to appoint and remove EDA board members,” Parker told the court. So it was that lapse in EDA board appointment authority that produced the lack of direct oversight of the former executive director as the financial scandal was evolving, the Commonwealth argued on the plaintiff’s behalf.

In rebuttal, defense counsel Cornwell told the court that the applicable statute on removal of elected officers “was not created to remove an entire body for making unpopular decisions – or not doing something.”

Cornwell criticized the Removal Petition’s call for dismissal of the board of supervisors as an entire entity, rather than as individuals for individual actions. He pointed out that the County board had to have a unanimous consensus to remove an EDA board member – “She (McDonald) was an officer of the EDA, not of the board of supervisors – this is where this gets balled up,” Cornwell concluded as this reporter’s notes got balled up in convergence with the point-counter-counter point legal arguments.

And sometime in January we will know the fate of the remaining two supervisors in office as the EDA financial scandal developed over the past two to three years.