Seeking Higher Standards of Political Accountability in Virginia

Is the "Handcuffs and Prison Bars" standard of behavior good enough for Virginia elected officials?

How low can we set the bar for political accountability?

Is it time for recall reform in Virginia?

Readers of the Iconoclast may recall a series of articles we did back in February and March concerning Chesterfield County government officials and their high flying taste for jet fuel.

We poked some well deserved fun at County Administrator Lane Ramsey and Supervisor Dickie King for their $18,000 charter jet trip back to Chesterfield to deal with some unpleasantness involving the then Chairman of the Board and Supervisor Edward B. Barber .

All the while we made fun of County officials and their jet-setting around the country, there was a deadly serious personal tragedy and criminal matter unfolding in the life of then Chairman of the Board of Supervisors Edward B. Barber. The Iconoclast chose not to focus on what was then unproven allegations against this public official.

That personal tragedy and criminal matter came to a final head this past week and was reported in The Richmond Times Dispatch. The headlines read: “Chesterfield supervisor pleads guilty to sex counts.”

Allegations are now fact. I won’t go into the details here. You can read about it if you want. Frankly, I have no taste for or desire to “pile on” Supervisor Barber. Others are taking care of that nicely.

Since the plea agreement reduced the original felony sexual battery charges down to lower grade misdemeanor charges for essentially the same behavior, Supervisor Barber is legally permitted to retain his office representing the Midlothian District in Chesterfield County.

Thus far, and in spite of a fire storm of protest, Supervisor Barber seems determined to keep his elected seat as he is legally entitled to do. He is not a convicted felon which would automatically disqualify him from office.

Yes, citizens are collecting signatures to submit to the Circuit Court. No doubt they will get the requisite number of signatures. But the outcome is not at all certain. Supervisor Barber's "digression" did not involve any neglect of official duty, or misuse of office, or incompetence. Nor did the behavior clearly fit the other criteria stipulated by Virginia law for the removal of elected officials from office. By all accounts, Supervisor Barber has been a rather conscientious elected official.

So... exactly what grounds will a judge use to remove Supervisor Barber from office?

There are at least two high profile examples in Virginia of failed citizen petitions to remove from office bad elected officials: Richmond City Councilman Chuck Richardson in 1994 for self admitted drug use, and the York County Sheriff "Press" Williams for forcing sexual acts with an employe. Given the particulars of Virginia law, the likely results of a recall trial for Supervisor Barber remain doubtful and may be rendered moot by a politically forced resegnation in the coming days or weeks.

Nonetheless, there is an important public policy issue here that should be addressed. That issue is the inability of the people of Virginia to directly and democratically change the government when needed through lawful special recall elections.

What do voters in Virginia do about elected officials involved in objectionable behavior like in the Barber case but especially in cases where the behavior may be highly objectionable butless scandalous?

The case of former Lynchburg Mayor Carl B. Hutcherson Jr. is a fairly clear example of removal by felony conviction. Hutcherson resigned almost immediately as the felony conviction was disqualifying (of course Hutcherson may have had some appeals options still available).

But what if an elected official is alleged to be engaged in questionable moral or ethical behavior that falls short of a felony conviction? A good example of this is the recent case of former Richmond School Board Member Stephen B. Johnson. He was never charged, although he could have been. Mr. Johnson, after first having his provocative photos on the internet publicly exposed was then caught up in an embarrasing drug incident. While he was not legally disqualified, Mr. Johnson wisely chose to resign.

Even more basic, what if an elected official, by the preponderance of his or her actions or inactions, is deemed by the voters to no longer represent the interests of the voters? No particular reason... the voters are just fed up with the official maybe for a lot of little reasons.

The most dramatic recent example of this is the sucessful 2003 voter initiated special recall election of former California Governor Gray Davis.

The voters got fed up with Governor Gray Davis and went through the process provided by California law to compel a special recall election and democratically threw the guy unceremoniously out of office.

The process was not easy. This was a major endeavor involving a lot of work. It is not supposed to be easy. But the process is fair and democratic. It is a process that puts the final say into the hands of the citizens.

This is a good thing!

Here in Virginia, voters do not have the legal right to initiate a special recall election for any elected official. This is because of the unique provisions of Virginia Law that takes these important decisions out of the hands of the voters.

Specifically, Code of Virginia §24.2-233 provides that "Upon petition, a circuit court may remove from office any elected officer or officer who has been appointed to fill an elective office, residing within the jurisdiction of the court."

This Code provision goes on to spell out very limited and specific grounds by which an elected official may be removed including neglect of duty, misuse of office, incompetence in the performance of duties, various convictions of misdemeanor drug charges, and convictions of misdemeanor "hate crimes."

Golly... I didn't even know that there were any misdemeanor "hate crimes". I guess that means only a little hate was involved.

But, you get my point... by omission, there are lots of serious sins that are more or less tolerated as insufficient grounds for the removal of elected officials in Virginia.

The fact is, Virginia is one state that stands out in contrast with many other states as a non-recall state.

It is almost as if, our General Assembly does not trust the people to use good judgment in the political process. This is a curious thing and begs the question of why? Maybe this unusual law is a remanent of bad old days of Jim Crow. Or, maybe it is a reflection of the control mentality all too prevalent during the heyday of the Virginia Byrd Organization. Who knows?

As many as 36 of the 50 states allow special recall elections for at least locally elected officials (this would take care of the Barber case). In Virginia, no recall elections are permitted because instead we have a so called "recall trial." Only the circuit court judge can decide based on narrowly defined legal criteria. The final decision is taken away from the people.

Because of Virginia's rather unique laws (read non-voter friendly), we have here in Virginia what might be characterized as the "Handcuffs and Prison Bars Standard" of public accountability for elected officials.

So long as elected officials can avoid drug convictions, hate-crimes and felony convictions, there is a pretty good chance that anything else goes. Even misdemeanor sex crimes, deficient ethical behavior, and a whole host of other less than commendable behavior is "acceptable" for Virginia elected officials... at least so far as the law is concerned.

Perhaps it is time that the Virginia Governor, Attorney General and General Assembly take the initiative to reform Virginia's laws concerning the removal of unworthy elected officials.

The vast majority of all elected officials are good people who do a good job on behalf of the citizens who put them in office. These honorable civil servants set standards for their own behavior far higher than the law requires. These elected need not fear progressive recall laws.

However, as we know from the all to common news headlines, there are always a few elected officials who continue to dishonor their offices and push the envelope of ethical and/or moral behavior. These few "bad eggs" should not be allowed to hide behind weak and antiquated Virginia laws to keep their seats in office.

For that small minority of objectionable elected officials, Virginians deserve the right to initiate special recall elections.

Trust the voters to establish appropriate standards for public accountability for elected officials.

Make Virginia a "recall state."