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Comment from Dave Briggman
Time: April 24, 2008, 10:20 am

I’ll take a look….give me a few minutes.

Comment from Dave Briggman
Time: April 24, 2008, 10:30 am

May not be on the legislative information system yet. I’m not finding any reference to that amendment anywhere…I’ll look throughout the day.

Comment from Christa Gitchell
Time: April 24, 2008, 11:39 am

Hm, how interesting is this?

Pingback from The Republitarian » This Is Interesting
Time: April 24, 2008, 11:52 am

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Comment from JGFitzgerald
Time: April 24, 2008, 1:50 pm

It might have been related to the Henry County sheriff. Hard to say, although one hopes Virginia doesn’t have very many indicted constitutional officers in any given year.

Comment from finnegan
Time: April 24, 2008, 4:38 pm

Joe might be right. A reader tells me this bill came from Sen. Robert Hurt of Chatham. Here’s his proposed amendment (in yellow).

Comment from David Miller
Time: April 24, 2008, 6:03 pm

“3b. Place a prohibition on a person who holds an elected office of public trust and who is accused of a felony arising from the performance of his duties from returning to his workplace; or”

Good find Finn and unnamed reader. At first I was nodding my head in recognition of the common sense that this bill seems to hit upon. Second thought though brought trepidation when applying hypotheticals to real world possible impacts.

Comment from Dave Briggman
Time: April 24, 2008, 8:41 pm

I think that amendment has a separation of powers problem.

Comment from JGFitzgerald
Time: April 24, 2008, 9:52 pm

Presumably the constitutional or other elected office becoming vacant upon conviction of its holder is in the state constitution. (Last I checked, it’s in the city charter, non-amendable by council, for city council members.) Thus, presumably, would be any removal or restriction based on indictment. A constitutional amendment would be needed, with all the hoops therein entailed.

The bill in question here does the kind of end-run legislators dream of. It doesn’t remove the person from the post, but rather gives the judge the right to make avoiding the actual office space a condition of bail. The indicted official who declines stays in office, but stays in jail, at the judge’s discretion.

Of course you do have to worry if the judge is a Pub and the office-holder is a Dem activist (whatever that is).

Comment from Dave Briggman
Time: April 24, 2008, 10:06 pm

She only loses her office if she’s convicted of a felony, or drug-related misdemeanor…unless the petition is used.

I’ll see if there is any existing caselaw on the petition issue.

Comment from Christa
Time: April 24, 2008, 10:09 pm

I have heard this “Dem activist” term a few times now. What is the difference between a “Repub activist” and a “Dem activist”? The times I have heard it mentioned, it was like they were making it sound like a dirty word. I hate politics.

Comment from JGFitzgerald
Time: April 25, 2008, 7:05 am

“Dem activist” is a Mellott thing. Whether he uses it at the insistence of one of his bosses or truly believes that it is relevant and accurate is anybody’s guess.

Comment from Mike
Time: April 25, 2008, 9:50 am

Every time I read “dem activist” I think of it as the new word for whippersnapper, and I picture a grizzled old man shaking his fist in the air as he says “Why you dem activist you.”

Comment from Lao Tzu
Time: April 27, 2008, 10:43 pm

I am proud to be a Becky Neal supporter. I will always be a Becky Neal supporter.

Yet the issues here are not about Neal’s behavior: rather, yours! The petition is wrong to pursue NOT because of Neal’s allegations, BUT RATHER your overreaction to a situation of which we all know very little.

The indiscretions which may have been committed and which may be judged as illegal will neither be rectified nor justified by the signing of a petition for removal. Out of all the “outraged” Harrisonburg taxpayers, show me one that has suffered a loss, not been credited properly, or any other matter before the Treasurer’s office which was not properly handled. The City coffers are balanced. They were balanced before the indictments. The City suffered no loss (lest you split some finely chopped interest hairs).

You — the signers of the petition — where is the justification? What purpose does the petition serve except to satisfy your need to revenge something that didn’t financially touch you. Your revenge lies elsewhere. Perhaps this is some way to find revenge for a past personal vendetta? Pitiable. Can we then say that you feel “morally outraged” at the allegations enough to smear a family’s good name? Take a family’s major source of income? Ruin an otherwise unblemished career? Make Harrisonburg politics akin to Dukes of Hazzard’s?

If it is your morality that compels you to support Neal’s ouster. Where are you on the immoral acts happening everyday? From your own life to worldwide, Neal’s acts pale on the morality scale — but she should suffer because she’s an easy target? You stone-throwers suffered no loss, yet beat the drum of righteousness to oust Ms. Neal just months before our system of justice can properly evaluate her actions! Shame on you.

Many bloggers blaspheme by bringing Biblical notions to this cause. When Jesus spoke to the crowd of stone-throwers, he made it clear that the stone-throwers’ actions were more reprehensible than anything that the woman may have done. Et Tu, Harrisonburg?

To paraphrase Mohandas Gandhi: “I like your Jesus; I do not like your Christians — they are so unlike your Jesus.”

Comment from Gxeremio
Time: April 28, 2008, 7:06 am

Wow, that was quite a jump at the end.

Comment from JGFitzgerald
Time: April 28, 2008, 8:05 am

Lao Tzu,

The morality scale issue is an old one: pick an issue, or a group of issues, and declare that no one should pursue any moral issue until the target group is solved. How can I clean my rain gutters when children in Africa are starving?

The blasphemy issue is also interesting. Jesus said not to sign the petition? That’s not what he told me. I didn’t sign it, but that’s not why.

As to the system of justice evaluating things: that’s what happens Thursday, in a courtroom, before a judge. Really. Despite the dramatics above, the treasurer will not be dunked to see if she drowns. She’ll appear in court, with her lawyer, with the Constitutions of the United States and Virginia to protect her from her callous neighbors.

Comment from Seth
Time: April 28, 2008, 9:54 am

So I’m confused. Does this make Briggman the Second Coming or the Anti-Christ?

Comment from Mike
Time: April 28, 2008, 2:02 pm

I think it makes him a guy with a clipboard.

Comment from Dave Briggman
Time: April 28, 2008, 2:12 pm

Actually, Carolyn has my clipboard.

Comment from Gxeremio
Time: May 2, 2008, 4:17 pm

Senator Hurt’s bill is working its way through the process, according to Richmond Sunlight (what a great site!).

I’m still confused why the judge couldn’t have suspended her pending a felony trial under state code 24.2-236.

What’s even more confusing to me is that there’s a document produced by the state court system explaining about magistrates which says this: “Section 24.2-231 requires a magistrate who is convicted of a felony or an offense in the Sex Offender and Crimes Against Minors Registry to forfeit the office of magistrate once all rights of appeal have expired. Section 24.2-236 allows the circuit court to suspend a magistrate DURING THE PENDENCY of a criminal trial involving a felony or a crime that requires registration in the Sex Offender and Crimes Against Minors Registry and any resulting appeal.” (emphasis mine) Obviously, Neal is not a magistrate, but why wouldn’t this apply in her case as well?

Comment from Dave Briggman
Time: May 2, 2008, 10:31 pm

Jeremy,

I’m still unsure as to what your point is.

This is my last reply to your lack of understanding.

There are two separate processes, one criminal and one, civil. they use different burdens of proof.

The criminal charges were instigated by criminal investigators on behalf of the Commonwealth of Virginia.

The civil process was instigated by the 553 valid signers of the petition. the petition used statements by two HPD Investigators used in the affidavit for the two search warrants. The petition alleges that Neal acted in excess of her authority under Virginia law and asks the judge to remove her, and pending a decision on removal, the petition asks the judge to suspend her. If she is removed, she won’t get her job back if she is found “not guilty”. She also, by operation of law, is out of a job if she is convicted of a felony. NOTICE THE WORD APPEAL DOESN’T OCCUR WITHIN MY EXPLANATION OF THE CIVIL PROCESS?

If the petition was not filed, a judge could do NOTHING until and unless she was convicted of a felony. Upon conviction, using your statute, a judge on his own motion could suspend her while she appealed her criminal convictions as far as the law permits her to appeal those. Once those appeals of her criminal convictions were exhausted, Neal loses her job by operation of law because she would be ineligible to vote or to become elected to that office.

If you don’t like the law, try and change it.

If you can’t understand the law, spend a couple of hundred dollars and I’m sure David O’Donnell will explain the procedure to you. He likely understands it only too well now.

Comment from Gxeremio
Time: May 2, 2008, 10:45 pm

I can understand the law. I’m reading the law and quoting the law. Unless you have access to a secret state code, the law is quite clear. Anyone else care to chime in?

Comment from Dave Briggman
Time: May 3, 2008, 7:44 am

Aside from the stunning silence from your offer to have others “chime in” in this and other forums, you still haven’t explained your point to me.

Did you want Becky Neal to remain in office pending results from her criminal trial?

What is it that you are looking for, Jeremy?

Comment from JGFitzgerald
Time: May 3, 2008, 8:27 am

Gx,

Ask some people what time it is, they tell you how a watch works.

DB,

Why the stunning silence to my question on that other blog, which, by the way, I will only address there.

Comment from finnegan
Time: May 3, 2008, 9:05 am

No need to be nasty, Dave. When I read his comment, here’s what I see: shouldn’t there or couldn’t there be another way to oust or suspend a constitutional officer, other than by petition?

What’s the harm in asking a question?

Comment from republitarian
Time: May 3, 2008, 9:30 am

Finnegan, Dave has already said that he just operated under the current law and that if someone doesn’t like it, then change it.

It seems like Jeremy is dazed by the legalities involved, instead of the goal…..which was to suspend or remove her. Nothing works perfectly in a situation like this. We did the best we could with what the law gave us.

Everyone else seems to get it but Jeremy. The judge even said that this is a little used statute, but a fair reading of a petition written by a layman is clear that the signers want her out of office.

The petition is a civil action bought by the voters…it is based on a preponderance of evidence.

Comment from Gxeremio
Time: May 3, 2008, 9:40 am

The goal of the petition is to remove her, regardless of proven guilt or innocence of “misdeeds”. I should add that the goal of the petition that was stated to me originally by some people was only to suspend her until the trial since she refused to step down herself.

The goal of the criminal trial is to determine her guilt or innocence. If she is guilty, part of her punishment will include being removed from office. The judge could have suspended her after the indictment, but didn’t. Instead, Marsha Garst waited until it looked like there was a public outcry for her suspension (via the petition) before asking the judge to suspend and then possibly remove her. It sure looks and sounds like the Commonwealth’s Attorney’s office and the petitioners are or have been in cahoots throughout this process.

Is suspension preferable? Probably. Is removal warranted at this point, months before her criminal trial? Absolutely not. Are people taking advantage of this situation for reasons other than being concerned about the use of city funds? Definitely.

Comment from finnegan
Time: May 3, 2008, 10:16 am

Is suspension preferable? Probably [...] Are people taking advantage of this situation for reasons other than being concerned about the use of city funds? Definitely.

Those two sum it up pretty well for me.

Comment from republitarian
Time: May 3, 2008, 12:32 pm

“It sure looks and sounds like the Commonwealth’s Attorney’s office and the petitioners are or have been in cahoots throughout this process.”

You know Jeremy, you ought to stick to teaching French.

Of course, Marsha was in cahoots with the petitioners. SHE, BY LAW, WAS THEIR ATTORNEY.

I don’t believe you can file a petition to suspend. The removal and suspension is up to the judge.

Comment from Gxeremio
Time: May 3, 2008, 3:09 pm

I’d appreciate you not telling me what I ought to do, Myron. What’s your profession and education again? Should I bring that up in every conversation we have or whenever you have something to say about law or politics?

You don’t have to file a petition to suspend an official…under the law, the judge can do it pending a felony trial without a petition. By the way, the law says the CA is to represent the Commonwealth, not that she needs to plan with the petitioners how they will carry out their petition, or that she should wait until a petition gives her political cover to ask for a suspension of an officer when she could have done it because of a judicial proceeding under 24.2-231 right after the indictment came down. Yet she “announced” a petition was necessary and lo and behold, someone she is in regular contact with (you) comes along with a posse of petition-collectin’ cowboys.

Who managed the stories getting out to media about the trial and about the petition?

Who picked up the slack when other petitioners lost heart and had second thoughts about whether county residents should be involved in prematurely prosecuting a city official over an alleged crime that as far as I can tell had no negative impact on the city’s bottom line?

And isn’t it odd that the “whistleblower”, a public official in her own right, Cynthia Fitzwater, was at your house while the whole situation was developing?

Don’t play this off as simple citizens getting the help of brave crimefighting officials - we need to think carefully about who is using who in this situation, and why.

Comment from republitarian
Time: May 3, 2008, 3:17 pm

Well Jeremy, I am all ears as to how all this was a benefit to me?

Comment from Gxeremio
Time: May 3, 2008, 3:31 pm

Why are YOU asking ME what benefit you derived from hours and hours of work to try to bring down an official in a district where you don’t live? Are you saying you did all that work for no benefit?

If it makes you feel any better, I consider your role in this affair as more of a tool than a mastermind.

Comment from republitarian
Time: May 3, 2008, 4:02 pm

Yes, I did it to to support and stand by my friends.

It cost me time away from my family and money….but, like Christa, I don’t turn my back on my friends.

Comment from Dave Briggman
Time: May 3, 2008, 5:31 pm

Jeremy, you’re intentionally misstating the law, yet again. The Judge is unable to suspend her, without a petition, until she’s convicted.

Comment from Dave Briggman
Time: May 3, 2008, 5:37 pm

Jeremy, last time, read the title to the statute, and because the title isn’t always indicative of the content of the statute, read the wording I’ve underlined…since she hasn’t been convicted of anything yet, you couldn’t use this statute to suspend her.

§ 24.2-231. Forfeiture of office by person sentenced for commission of certain crimes.

Any person holding any public office of honor, profit, or trust in this Commonwealth who is convicted of a felony or any offense for which registration is required as defined in § 9.1-902 and for whom all rights of appeal under Virginia law have expired, shall by such final conviction forfeit his office or post and thereafter may not act therein under his previous election or appointment. A pardon which may be afterwards granted him shall not void the forfeiture.

Comment from Gxeremio
Time: May 3, 2008, 8:18 pm

Dave, last time, final conviction under the part you cited would remove her from office. But we’re not talking about final removal…we’re talking about being suspended pending a hearing. Now read this wording I’ve underlined.

§ 24.2-236. Suspension from office pending hearing and appeal.

In the event of a judicial proceeding under §§ 24.2-231 [note: this is the one you quoted above], 24.2-232, 24.2-233, or 24.2-234, the circuit court may enter an order suspending the officer pending the hearing.

Your argument, as I understand it, is that “pending the hearing” here means pending the appeals, not pending the trial, but only for 24.2-231 (removal by felony), not for 24.2-233 (removal by petition). Both kinds of removal, by the way, can be appealed under 24.2-237.

The statute doesn’t restrict suspension to only being an option during the appeals process…in fact, check out the name of the statute again.

See, there’s not a separate hearing after a felony conviction to remove them from office…the felony conviction itself has that effect. So pending that felony hearing in August, the judge could have suspended her under this statute. Instead he’s suspended her pending the petition hearing in June, which is another type of judicial proceeding she can be suspended until under this statute. I wonder if she avoids removal, if he’ll still suspend her until the August trial…I guess we’ll have to wait and see.

Comment from Dave Briggman
Time: May 3, 2008, 8:44 pm

You’re right, Jeremy, everyone is else wrong. :-(

There would be an order coming after her conviction suspending her from office pending the exhaustion of her appeals.

Comment from Gxeremio
Time: May 3, 2008, 8:53 pm

I’m not sure how to read that last comment…but I assume it’s sarcastic since “everyone else” only includes 3 people I know of: you, Myron, and Marsha Garst.

What amazes me is that you still don’t get it, even after connecting the dots in the laws for you. Did the judge have to wait to suspend her after the initial removal by petition (during that appeals process)? No. So why would he have to wait to suspend her after the initial removal by felony (during the appeals process) using the VERY SAME STATUTE? He can suspend her PENDING THE HEARING in either case.

Comment from Christa
Time: May 3, 2008, 9:04 pm

Guys, what the hell difference does it make now? It’s done. Can we give the Neals some peace? I don’t like being vindictive, but I’ll be standing by when something really horrible happens in your lives. You know of who I speak of…..only a chosen few. Very simple statement, but I have always known it to be true. What goes around, comes around. Please, I beg of you. Give it a rest. Find someone elses life to pick apart.

Comment from Gxeremio
Time: May 3, 2008, 9:10 pm

Christa, you raise a good point. But if she could have been suspended other than by petition then the following things are true:

1. The Commonwealth’s Attorney was wrong about an important legal matter.
2. The petition was unnecessary.
3. It answers the question about what laws need to change for future problems like this one: they don’t need to change because they’re fine as is.

I urge people to follow up on this and either verify my conclusions or explain to me where my understanding derailed. My email address is gxeremio (at) gmail (dot) com.

That said, I agree that I’ve said plenty on the matter and will now give it a rest.

Comment from Dave Briggman
Time: May 3, 2008, 9:58 pm

I know, Jeremy, that I’ll thank God every day that my child won’t have you as a teacher. You likely have troubles following maps, too.

Comment from Christa
Time: May 3, 2008, 10:02 pm

Speaking of your child Dave, I took his picture at soccer today. He flashed me that great little smile of his. He is adorable. You sure he’s yours? :)

Comment from Gxeremio
Time: May 3, 2008, 10:08 pm

Oh David, somehow you’re even more endearing when you’re angry. Hope to see you at the blogger get-together! No hard feelings here.

Comment from Lowell
Time: May 3, 2008, 10:09 pm

Dave, rather than being rude to Gxeremio, why not simply address the issue he raised in his 8:53 pm comment?

Comment from cook
Time: May 4, 2008, 12:00 am

I am supposed to be preparing some comments for tomorrow morning, so of course I now for the first time take the time to look at the statutes at issue in the battle of wits between GX and DB. Very interesting, guys.

The issue you are debating, as I understand it, is whether the Circuit Court judge could have temporarily suspended the Treasurer from her duties before the trial of the criminal case as part of the criminal proceeding.

GX takes the affirmative position while DB maintains that the judge could not have temporarily suspended the Treasurer until she is convicted of a felony (at which time she would be removed from office) or until a Petition is filed pursuant to § 24.2-233.

The statute addressing temporary suspension from office, quoted above, authorizes (but does not require) suspension in the event of “a judicial proceeding” under certain code sections.

Clearly, “a judicial proceeding under § 24.2-233” includes a prosecution of the Petition for Removal from Office.

But what is “a judicial proceeding under § 24.2-231”? That code section does not authorize any separate judicial proceeding; it merely requires forfeiture of the office upon “final conviction.”

DB wants to say that this applies to situations where the criminal conviction is on appeal, but on its face § 24.2-231 does not take effect until “all rights of appeal under Virginia law have expired.”

DB is technically correct to say that the criminal prosecution is not a “judicial proceeding under § 24.2-231,” but I cannot see what other judicial proceeding to which the statute could be referring.

Therefore, I choose to “chime in” on the side of the affirmative position: the Circuit Court judge is authorized to temporarily suspend the Treasurer from office while the criminal trial is pending as part of the criminal proceeding.

In saying that, however, I am not saying that the statute is well-written or “clear” (quoting GX). That’s why we need lawyers. Or maybe that’s why we need legislators who can write.

Interesting related issues:

What standard should a judge use to determine removal under the Petition? Suppose the proponents of the Petition prove “misuse of office . . . [to the extent that it] has a material adverse effect upon the conduct of the office.” At that point, the judge MAY (not shall) remove her from office.

She has a constitutional right to remain silent (and it will not be held against her) at the criminal trial, but the civil trial comes first. Should she testify? I’ve commented about that elsewhere.

OK. Now back to work for tomorrow . . .

Comment from Lowell
Time: May 4, 2008, 6:25 am

Thank you Mr. Cook.

Comment from Dave Briggman
Time: May 4, 2008, 8:10 am

Knowing, Aaron, how much I respect your legal views, I’m still going to stick with my view of § 24.2-231. In my view, a conviction would remove her by operation of law, however, should she appeal, the judge could suspend her pursuant to§ 24.2-236.

Unfortunately, there’s an Attorney General’s Opinion on this that I can’t get until tomorrow, and virtually no case law.

Should you have access to Westlaw or Lexis, the A.G. Opinion is 1995 Op.Atty.Gen. No. 244.

Comment from cook
Time: May 4, 2008, 8:38 am

Dave,

I saw that AG opinion last night and the issue there was whether the elected official could be removed under section 231 after the petition for appeal was denied but before the petition for rehearing was decided. The AG opined that forfeiture of office does not occur until after everything - including petition for rehearing - is decided.

Like I said, the answer is not as clear as it ought to be. However, I cannot find in the statute your distinction, Dave, between “while the trial is pending” and “while the appeal is pending.”

Great issue, though. Legislators should spend more time on drafting and editing and re-editing than they seem to spend on such tedious activity; I guess photo ops are more fun?

Comment from Lowell
Time: May 4, 2008, 9:17 am

I agree Mr. Cook.

Greater care should be exercised when choosing our legislators. All too often folks vote based on issues of emotion rather than reason. And we now (perhaps always have to some greater or lesser extent) live in a time when members of both parties play a tug of war by attempting to manipulate the electorate with emotion and fear and illogic.

We constantly seek a messiah to lead us to some new promised land, forgetting that that particular position is already taken, quite ably I might add.

What we need instead, are individuals capable of, and willing to, engage in critical thinking, study of detail, conversation and debate, and ultimately the finding of solutions and improvement of governmental function.

Those incapable of governing look to the photo op and the media spotlight to make it seem like they are out in front on the issue of the moment. They look to see which way the mob is heading and then act like they’re leading the parade.

The true representative legislator is willing to roll up his/her sleeves, and do the work necessary.

Comment from Gxeremio
Time: May 4, 2008, 12:17 pm

Thanks cook and lowell. By the way, while reviewing the stories in the media to make sure my memory wasn’t failing me again as it often does, I ran across this from a Feb. 22 story in the DNR by Jeff Mellott about the petition:

“A city resident and a Rockingham County man plan to start collecting signatures today to petition a Rockingham County circuit judge to suspend City Treasurer Rebecca Neal.

Neal, 47, who faces 20 counts of misappropriating public funds and altering deposits, has remained at work since a Rockingham County grand jury handed down indictments against her on Tuesday.

If the petitioners are successful, Neal would remain treasurer but she would not be able to run the office while her case is pending, according to the law.”…

“”The allegations are serious,” Briggman said Thursday. “The petition is not whether she is guilty or not.”"

And from a March 18 story by Hannah Northey:

“Once the signatures are collected, the law requires the petition be submitted to a circuit court judge.

Neal would then be given the opportunity to tell the court why she should not be suspended, according to the state code. If she is suspended, the judge can select a temporary replacement.”

Interesting, huh?

Comment from Dave Briggman
Time: May 4, 2008, 2:09 pm

What’s so interesting? Jeff Mellott reporting something different than what he was told?

Nothing new there. I often wonder if Jeff and I were attending the same meeting when I read his story in the paper. As recently as last week on TV-3, I heard Bob Corso improperly characterize the petition.

Comment from Gxeremio
Time: May 4, 2008, 6:26 pm

You’re right Dave. During the petition drive, both DNR and WHSV made it seem as though the petition was for suspension until the trial, not permanent removal from office before the trial. I wonder how many people who signed it realized what they were actually calling for.

Here are some comments from local residents (signers?) who clearly misunderstood the purpose of the petition:

“She shouldn’t be in office and still getting a salary until she’s either proven innocent or guilty, but I think she needs not to be there right now,” says Bonnie Hinkle, who also signed the petition.”

“Suspension until this is decided is the only way to be fair, it makes sense. I would think it would be miserable to work in that office along side her under these circumstances, other employees should not have to deal with that. ” - fos46

“this petition is a legal option put in place for situations like this. lets assume mrs. neal is innocent, she will temporaraly be suspended from working and her salary withheld, however once she is determined to be innocent she will receive her back salary. now let’s assume she is guilty, she will be continuing to work and receive a very nice, taxpayer paid salary until the courts find her guilty-not exactly how i want my money spent. ” - mhburg

“To all those commentors, that support Neal, to continue with her present job duties. Think….she has a lot less to loose now, than before she was indicted, by the Grand Jury….her REPUTATION. The taxpayers of Harrisonburg, deserve peace of mind. I don’t think they have that, with Neal continuing to control the Treasures Office. If she is innocent, she will be vendicated and paid. Sign the petition.” - coolbeanz

“Too many questions still unanswered that yes she should be suspended with her pay on hold and if indeed she is found not guilty it is hers, until then we don’t need to continue paying her. ” - citizent