Questions about time frame for filling council vacancy answered – 45 days, plus …

Vague language in the Town Charter created confusion for some about the swearing-in deadline for the Front Royal Town Council seat vacated by the special election of Eugene Tewalt as mayor.

By a 4-0 vote (Thompson absent, Tewalt’s seat vacant) on January 6, council appointed local public school educator Lori Athey Cockrell to fill Tewalt’s unexpired council term four days before the 45-day deadline expired. However, while present Cockrell remained unseated for council’s January 13 meeting and work session. She explained to Royal Examiner that she had not yet been sworn in.

The Town Charter and State Codes agree that the town council has 45 days to fill the vacancy before the appointment authority would transfer to the local Circuit Court judiciary.
However, wording in the Town Charter that could be interpreted as indicating the vacant seat should be occupied within the 45 day time frame led several citizens to ask Royal Examiner if the failure to have Cockrell sworn in by January 10, the 45th day since Tewalt created the vacancy to be sworn in as mayor on November 26, meant appointment authority had transferred to the Warren County Circuit Court.

Imprecise Town Charter wording raised questions about whose authority presides over council vacancy appointments after 45 days if appointee not yet sworn in – the courts or town council. Royal Examiner Photos/Roger Bianchini

The Town Charter, Chapter 1-D wording in question reads, “The council may fill any vacancy that occurs in the membership of the council for the unexpired term, provided that such vacancy is taken within 45 days of the office becoming vacant”. With impeachment a hot current topic on the federal political scene, one is reminded of the Clinton Impeachment Trial question, “What is, is?”, or in this case more appropriately, what exactly does “is taken” mean?

The short answer after discussion with Town Attorney Doug Napier and Circuit Court Clerk Angie Moore is that “is taken” means the appointment was legally voted on and a council decision made. So, council’s unanimous January 6 vote – Thompson later said she would have voted with her colleagues for Cockrell’s appointment – to appoint the long-time county public school educator stands – as long as she is sworn in by someone authorized to do so within 30 days of her appointment, as State Codes mandate.

On Wednesday, January 15, Circuit Court Clerk Moore said her office had received verification of Cockrell’s appointment from the town government the previous day, eight days after it was made. Moore verified that Cockrell could now be sworn in by a judge, her as Circuit Court Clerk or someone within the town government so authorized. Chapter 10 of Town Charter state that the mayor, town clerk, treasurer or town manager all “have the power to administer oaths”.

So, one would guess that Cockrell will be, not only present as a note-taking observer at council’s next scheduled meeting, a January 21st work session at Town Hall, but “signed, sealed and delivered” to her appointed council seat.

Still waiting to be sworn in, Lori Athey Cockrell was present as a citizen observer at January 13 council meeting and work session.

We asked the town attorney if it might be worth a wording tweak to that relevant and less than grammatically precise Town Charter section to prevent this question from ever resurfacing. We suggested that perhaps the words “action on” should be added to the phrase “provided that (action on) such vacancy is taken within 45 days”.

However, Napier noted a long history of legal interpretation supporting the intent of that section meaning the council decision be made within the 45-day timeframe. He called that legal precedent perhaps adequate and preferable to the somewhat lengthy and legally tedious seeking of State General Assembly approval of even such minor changes to Town Charters. Responding to a Royal Examiner question, Napier said he believed the Charter wording in question dated to 1937.

So, 83 years later thanks to that history of legal interpretation of a vaguely written Town Charter section, council’s appointment of Cockrell stands – as long as she is sworn in and seated in the next 24 days.

As previously reported, she will not be the first in her family so seated. Her brother Clifford L. “Clay” Athey Jr. is not only a former Front Royal Councilman and Mayor, but also an 18th District State Delegate, Circuit Court judge and current Virginia Appeals Court judge. Her sister Kim is a Domestic Relations Court Judge after a career, like her brother, as an attorney locally.

While awaiting her turn in the council interview process, Cockrell noted she was nearing retirement from her career in public education and would have time to devote to the political sphere of her community. Welcome to the machine, Lori – and good luck.