McFadden reacts to council move to fill his vacant seat – and considers paths forward

Rather than the legal clarity he has been seeking from Front Royal Town Hall regarding his August 8 verbal resignation issued in a heated moment following what appears to have been a sometimes contentious Executive/Closed Session discussion, primarily around the immediate termination of Town Manager Steven Hicks, the Front Royal Town Council action out of another Closed Session on Monday, August 29th, regarding filling Joe McFadden’s vacant (or is it?) seat, seems to have further confused the situation.

On August 30, a press release from the council clerk’s office on council’s action of the previous day alerted the public to the council plan of action and official acknowledgement of McFadden’s resignation:

“The Front Royal Town Council is accepting resumes from citizens who are interested in serving on Town Council to fill a vacancy that is currently open due to the resignation of Councilman Joseph McFadden, submitted on August 8, 2022 and accepted by formal Council action taken on August 29, 2022 setting a date for a Special Election. If appointed, the term would end upon the oath being administered by the candidate elected at a Special Election to be held on November 7, 2023. The candidate elected during the Special Election will serve out the remainder of Mr. McFadden’s term which is December 31, 2024.”

In the heat of the moment on Aug. 8, Councilman McFadden verbally offered his resignation following the 4-3 vote to terminate Town Manager Hicks immediately. No official action by the mayor or council regarding acceptance of that resignation was taken at the time and four days later, McFadden submitted a written withdrawal of that resignation to Town Hall.

What jumped out from this opening paragraph of the two-paragraph release was that the formal acknowledgement and action McFadden and some supporters have asserted is required for a members’ resignation to become official, was being made at that August 29 meeting – “… to fill a vacancy that is currently open due to the resignation of Councilman Joseph McFadden, submitted on August 8, 2022 and accepted by formal Council action taken on August 29, 2022 setting a date for a Special Election.”

The vote to pursue this path out of closed session was 3 yes (Thompson, Morris, Gillispie), 1 no (Vice-Mayor Cockrell), with Councilman Jackson abstaining. Contacted about her dissenting vote, Vice-Mayor Lori Cockrell told Royal Examiner: “In my judgement the outside opinion relied upon by some members of council, was not definitive as to when Joe McFadden resigned, whether or not his resignation was effective, and whether or not he could rescind his resignation prior to the council accepting it. For that reason, my best judgement was to get a definitive Attorney General’s opinion on all of these issues prior to moving forward.” Cockrell noted that her earlier initiative to seek the opinion of the attorney general on these issues did not receive a consensus from her colleagues to proceed.

We asked McFadden about this acceptance of his resignation now, weeks into his and other’s debate over the necessity of specific actions by his colleagues for his resignation to be legally finalized, and where these moves leave his effort to be reinstated on council.

“It is unfortunate that there is no clear pathway forward and yet so many contradictions. I’ve let members of Council know that I’ll be submitting an application to be reappointed to council on Friday,” he began in response to the opening of applications for his seat, adding a possible precedent for reappointment since his seat is being treated as vacant by council. “Considering that the court battle on reappointment of former members of Council was already fought and won in the case of former Councilmen Meza, I would use that precedent to rejoin council until at least December of 2023. At some point prior to that I’d need to make additional decisions about either running in the Special Election next November. I’ll have to see where things are at that time. I guess we’ll see if I can get 3 votes,” he said of the potential of a more immediate reappointment by the five-member council that would make that decision.

McFadden has decided to show up at council meetings so that absence cannot be used as leverage to further remove him from the council seat he is seeking to regain. He was present here, on Aug. 22, though not offered a seat on the council dais.

“I do believe that legal clarity is needed. Not just for this instance but for any future instances of a Council member resigning. I was told that Ms. Egger was asked to submit a letter following up on her resignation (due to marriage and moving out of the area). I don’t have proof of that, it’s just what someone recalled … Maybe there needs to be a clearly defined process for all future resignations,” McFadden reasoned of the current confusion over processes, observing, “How a Town Councilmen resigns was dictated by Robert’s Rules of Order, which is in conflict with the Virginia State Code – that sounds like something that needs clarification.”

“I guess at the heart of this matter is that they essentially opted to go with the State Code as provided by the 2nd opinion attorney that my resignation was effective on August 8th. That was what Councilwoman Morris stated in her vote after the closed session. However, the statement that was released contradicts that,” McFadden observed of the press release reference to formal acceptance of his resignation on August 29. “I messaged some of my fellow or former, I’m still not clear which it is, council members regarding this, and was told that they left the meeting a little confused about what was going to occur afterwards.

Council has had a harder time achieving a quorum a man down, as here Aug. 22, when meeting was cancelled for lack of a physical quorum despite McFadden’s presence in the audience.

“But clearly, if the Town’s official position, as per the Press Release statement, is that they accepted my resignation on August 29th, then it would stand that I could withdraw my resignation prior to the acceptance a full 17 days after I sent a digital copy and mailed a letter to the Clerk of Council (withdrawing the verbal resignation made four days earlier). This is simply bizarre …

“They have now voted to hold a special election, which will cost the taxpayers nearly $14,000. Sure, I made a rash decision, but I acknowledged that it wasn’t a good representation of the voters who elected me and withdrew it as soon as I learned it was possible to withdraw the resignation … Seems like a waste of money,” McFadden said of the special election costs.