Local Government
The question at root of legal dispute over Meza Council appointment
Was Jacob Meza’s appointment to the Front Royal Town Council on January 4 a legal violation of the Town’s own rules designed to prevent the appearance, or actual fact, of cronyism in the conduct of its municipal business? That was a question circulating by a phone conversation, on social media, and around the Royal Examiner office on Tuesday, January 5.
At issue was whether the Town Charter or a Town Code forbids the reappointment of a council member within a year of their leaving council. After taking the public point on a number of controversial council actions over the past several years, including approval of a maternity ward-less Warren Memorial Hospital being constructed by his employer Valley Health, Meza chose not to run for reelection in November 2020. Officially he left office at the turn of the year with the new council members being sworn in, then was appointed by those new and returning members four, two working, days later.
Above, the newly configured, virtually broadcast Front Royal Town Council has gotten 2021 off with a BANG – appointing former Councilman Jacob Meza, below in foreground at January 2020 work session, four days after his term expired. There are conflicting legal opinions on whether that violates a Town Charter Section prohibiting appointments of council members to positions under the council’s ‘jurisdiction’ for a year following their departure from council. Royal Examiner File Photos by Roger Bianchini
With a little help from our friends, Royal Examiner tracked down the applicable Town Charter reference dating to 1937, Chapter 6, Section § 47. In its entirety it reads: “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 (1937, c. 44)”.
At question would appear to be whether council itself is legally considered an “office under the jurisdiction of the council”.
One might argue that council is under the jurisdiction of the citizen electorate every two years when they vote for mayor and half the council seats. But citizens have no day-to-day authority over council operations and policy decisions. And citizens are not authorized to appoint people to immediately fill sudden council vacancies. In fact, it appears a “Special Election” to fill out now-Mayor Holloway’s vacant council seat’s two remaining years term will not be held until November 2021, with the citizens’ choice not taking office until half that term has expired. Whether elected councilmen whose terms haven’t expired should be allowed to seek the mayor’s seat creating unscheduled council vacancies if they win is a philosophical argument for another day.
Mayor Holloway chairs his first meeting virtually, with minimal public attendance due to COVID-19 pandemic precautions, on Jan. 4, 2021.
Today’s argument is by whose authority is council directed in the daily conduct of its business, including appointments to immediately fill vacancies. Theoretically at least, though there have been recent citizen questions whether its “tail” has been wagging the council “dog” over the past year-plus, as Meza’s now and last year Lori Cockrell’s at the end of a long history of appointments illustrate, it is council that has that “jurisdiction”.
So, does Mr. Meza’s appointment – or should we call it reappointment since he first came to council by appointment to fill a previous vacancy – four calendar days after he left office fly in the face of the Charter Section § 47 statement that, “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”?
We sought guidance from attorneys. Town Attorney Doug Napier was out of the office Tuesday, January 5. So, this reporter left him a voice message seeking information on the Charter section and Meza’s appointment. While we did not hear directly back from him, one might say that the Town Attorney responded to our, and apparently other, inquiries on the matter in a press release opinion released through Town Public Information Officer Todd Jones at 6:38 p.m. Tuesday evening, January 5, addressing “press and public” inquiries on the matter.
The short version of Napier’s opinion is that the Charter Section § 47 only addresses what he terms “double-dipping or conflicts of interest where a Town Council member is also an employee of the local government in which he serves.”
That press release assertion by the town attorney that Town Charter Chapter 6, Section § 47 does not apply to council appointments is posted on Royal Examiner’s home page in its entirety, along with a conflicting legal opinion by local attorney David Downes submitted to Royal Examiner Wednesday morning, January 6.
Town Attorney Doug Napier in his Town Hall office. His released written opinion is that Town Charter Chapter 6, Section 47 does not apply to council seats.
However, yesterday following the unsuccessful attempt to contact Napier directly, this reporter sought the opinion of a local attorney involved in town political issues recently, sometimes in an adversarial position related to parking on his property, but occasionally in a well-received advocacy role as well – guess who: Virginia Beer Museum proprietor and defense counsel David Downes.
Below I will report his initially expressed opinion, given prior to issuance of Town Attorney Napier’s written opinion of Tuesday evening.
After some research, Downes responded. He observed that his exploration of Town Charter Chapter 6, Section § 47 indicated that no amendments have been made to it over its 83-year existence, something that perhaps attorneys will take more note of than a non-legally trained journalist.
Local attorney David Downes, at the podium, has sometimes found himself in conflict with council over property rights and parking space issues, as well as on the same page in creating proactive measures to curb drug abuse in the community. He and the town attorney are at odds over the interpretation of the Town Charter as it applies to council’s ‘jurisdiction’ over its own membership and appointment terms.
“The legal phrase ‘under the jurisdiction of’ is synonymous with ‘subject to the jurisdiction of’ a legal body. If the town council has the jurisdiction to ‘appoint’ the office of town councilman, then section 47 applies, and that jurisdiction is subject to the one-year limitation. In other words, they cannot have it both ways,” Downes told us Tuesday in a written response to our questions.
“The context of Section 47 makes this interpretation clear,” Downes elaborated, adding, “The only exception for council appointments is if ‘one of the members of the council’ is appointed as town treasurer. If the Founding Fathers of Front Royal intended to permit ‘one of the members of the council’ to be immediately re-appointed ‘councilman’, then they could have said so in the Charter.
They chose not to.
“Examining the purpose of this section also supports the reasonable interpretation that ‘under the jurisdiction’ includes all offices within the jurisdiction of council for appointment. The objective is to prevent nepotism and an appearance of impropriety where colleagues would simply reappoint former fellow councilmen after a vacancy is created on the council. Consequently, attempting to appoint Mr. Meza less than one year after his service as a councilman would be an ultra vires act, or outside their lawful authority based on the Town Charter.”
What do YOU think?
Royal Examiner would like to know.
Not so fast with that appointment of Mr. Meza back on council 4 days after his last term expired – is it a legal appointment? The Warren County Courthouse may be the ultimate destination for an answer to that question. But in the meantime, can Mr. Meza serve on his disputed council seat?
