"A New Hope" or "The Empire Strikes Back" ?
Hint: WTF hasn't gotten into the movie trivia business...
Two critical disclaimers to start this off:
#1 Wayne Hall’s resignation from Smithfield Town Council turned The Grange issue and Smithfield Town Council upside down. If Wayne Hall were still on Council (and this is in no way saying that he shouldn’t have resigned), only having to select Renee Rountree’s replacement would not be nearly as contentious.
#2 We have yet to see anything about the process in which the Smithfield Town Council is choosing to appoint the two new members is illegal, regardless of how much it lacks transparency.
Everything else that follows will either be seen as constructive criticism of a political process or annoying bitching by some guy in Windsor who doesn’t really have a dog in the fight. The two most significant factors that will affect your perception are:
1) Are you an elected official appointing peers to a government body?
2) Where you sit on a spectrum between radical transparency and elitist authoritarianism.
For those who are not up to speed, Smithfield Town Council has to appoint two new members to join the Council due to Wayne Hall’s resignation and the pending resignation of Renee Rountree when she joins the Isle of Wight Board of Supervisors in January.
The Appointment Process
First, let’s discuss appointing new members to an elected governing body. Virginia State Code Title 24, Chapter 2, Article VI, prescribes the process, specifically § 24.2-228. The highlights of the statute are:
1) The Council has 45 days from the date of the resignation to appoint a new member, or the new member is selected by the judges of the presiding state circuit court (5th Circuit for Isle of Wight). This technically only applies to Wayne Hall’s seat; Renee Rountree has not formally resigned and does not have to until she assumes her new role as a Board of Supervisor. That said, the Council should not be able to select her replacement until the seat is actually vacated (i.e., Rountree cannot vote on her replacement).
2) The person appointed shall hold office only until the qualified voters fill the vacancy by special election. Technically, the Town Council could decide to hold a special election to fill the seat instead of appointing someone, but they would have to pay for it. Assuming they choose not to hold a special election to fill the seat, a special election will be held in November 2024 for the remaining years of the respective term. So, for Wayne Hall’s replacement, they would only be in office for an additional two years and would have to run again in 2026. Renee Rountree’s term ends in 2024, so whoever runs for her term, if elected, would get another four years (2024-2028).
3) “Any person so appointed shall hold office the same as an elected person and shall exercise all powers of the elected office.”
Manipulating the Virginia Freedom of Information Act
Equally important and more controversial (in our view) is how the Virginia Freedom of Information Act (FOIA) is interpreted regarding appointing folks to fill elected official vacancies.
Usually, governing bodies interview candidates and debate their decision in closed session. It appears Smithfield intends to do the same. Then, they must come back into open session to officially nominate and vote on the appointment(s). § 2.2 3712 dictates the procedures for closed session, which requires the governing body to tell the public why they are going into closed session and to cite the exemption they are invoking to enter into closed session. For interviewing and debating the appointment, they will use what is referred to colloquially as the “personnel exemption” or § 2.2-3711.A.1, which states:
“A. Public bodies may hold closed meetings only for the following purposes …Discussion, consideration, or interviews of prospective candidates for employment; assignment, appointment, promotion, performance, demotion, salaries, disciplining, or resignation of specific public officers, appointees, or employees of any public body”
It takes a generous interpretation of FOIA to call appointing a peer to a governing body an “employment” decision. Elected bodies are “employed” by their constituents; when a member must be appointed, it should be done under maximum transparency. In fact, in the opening paragraphs of the Virginia Freedom of Information Act it states:
“The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government…The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed… This chapter shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth.”
Knowing this, ask yourself and, more importantly, your elected officials:
1) Why is it critical that they interview your future representative(s) in secrecy?
2) Why should your future representative’s views on any issue be a secret to the public?
3) Ask them for an example of something that could happen in these interviews and deliberations where it is in the public’s interest not to know.
4) Or just be blunt and ask them to cite what exactly they are afraid of the public knowing?
What Has Happened So Far
Smithfield Mayor Steve Bowman appointed council members Randy Pack and Vice Mayor Valerie Butler as a subcommittee to narrow the number of applicants to a manageable number. There is no issue with Vice Mayor Butler being a part of this process. However, selecting Randy Pack, who has abstained from voting (but not participating in) all of the Town Council and Planning Commission meetings related to the controversial Grange project, seems politically tone-deaf at best and more like a poke in the eye to the Grange detractors. If the Mayor was interested in maintaining the balance the voters selected for Town Council at the ballot box, he would have placed Jeff Brooks or Mike Smith on the subcommittee instead of Randy Pack. Ramming the Grange vote through before you vote on the new appointments doesn’t suddenly make it ethical to have had Randy Pack pick the candidates.
The subcommittee narrowed 23 applicants down to five. After personally reviewing all 23 applications, it is clear there were a lot of talented people to choose from: business professionals, engineers, lawyers, educators, and seemingly every planning commissioner from the past 10 years, so inevitably, the decision will draw scrutiny. So it is disappointing that the public doesn’t know the criteria used by the subcommittee to select these five candidates. There isn’t room to go through all 23 candidates, so we provide a couple hot takes for the five the subcommittee selected (in alphabetical order:
James Collins: He is a professional engineer, business professional, and board member of the Isle of Wight Economic Development Authority. There are rumors that he is one of the two who are going to be selected. Other than the rumor he is pre-ordained by the powers that be, he seems good on paper.
Raynard Gibbs: Retired Navy nurse serving on the Smithfield and Isle of Wight Planning Commissions. He put forth almost zero effort in explaining why he wants to be on the Council and stated he can only offer 2-4 hours a week to devote to being on the Council (far less than most applicants). He is rumored to be the other pre-ordained choice who will be selected.
Bill Harris: Retired educator, lots of civic involvement, and clearly put thought and effort into his application. He has been a vocal but respectful opponent of The Grange at Council and planning commission meetings. It is clear he is in the group of five to be the token opposition candidate who has no chance of being appointed.
Charlotte “Candy” Hayes: Real estate agent who is active in the community. She is available from noon to 6 PM Monday-Friday and is flexible on the weekends; it’s not clear how she will be able to attend town council meetings based on that availability.
Vicky Hulick: Former school board member for the then-Newport District. She resigned when she moved from Carrollton to Smithfield. Ironically, she resigned from the school board precisely 89 days before the 2021 election, allowing the school board to appoint her replacement; had she resigned one day earlier, her constituents would have been able to vote for her replacement instead of living with Renee Dial as their representative until she was rejected in a landslide vote a year later. It is also interesting that she stated she wanted to bring “equity” to the community like she did on the school board. District 1 (which is most Smithfield voters) just ousted Hulick’s equity ally, Denise Tynes, six weeks ago by 25 points, so it’s unclear why the subcommittee thought she was one of the top five applicants the voters of Smithfield would want.
We Have Seen This Movie Before…
This article is written from a position of experience. In October 2021, yours truly threw his name in the hat for the vacant Windsor School Board seat. I participated in a closed session interview and answered questions about the role. The questions were reasonable, and the discussion was professional. Nothing that occurred during the interview should have been hidden from the public. Ultimately, Michael Vines was appointed on a 2-1 vote. Here is a small sample of how that went: exhibit A, exhibit B, exhibit C, exhibit D, and there are many more.
Worse than that, because the interviews were conducted in closed session, it enabled former School Board Chairwoman Denise Tynes to blatantly lie about what occurred in the interviews for her political gain. If that wasn’t enough, the school board illegally destroyed records from the closed session, denying the candidates the ability to set the record straight. It doesn’t take much imagination to envision something like this repeating in Smithfield.
Where does it go from here?
Point blank, there really isn’t much that can be done to change the events that have been set in motion. The majority of the Town Council has wide latitude to push through candidates with as much or as little transparency as they want. Those in the minority (Jeff Brooks and Mike Smith) can’t take any specific action to stop this train. However, they could help point out the hypocrisy by voting against going into closed session for any interviews or deliberations. They could ask, in public, for Randy Pack and Valerie Butler to explain the criteria that were used to identify the five candidates. They could also nominate other citizens if they are unhappy with the five candidates. They should not be judged too harshly if they choose not to take any of these actions. They have to pick their battles, and while public shaming might work, it is unlikely.
That said, if the voters of Smithfield are unhappy with how this all plays out, they have recourse. Everyone involved in the literal backroom scheme to fix the Isle of Wight School Board through political appointments was crushed at the ballot box in their subsequent election. The “Empire” is definitely striking back after the Grange opposition, but next November can bring “A New Hope.”