AMHERST - Town of Amherst officials filed a request in Amherst Circuit Court last Thursday seeking a special election on Nov. 5 for voters to determine who will fill the seat made vacant by town council’s controversial decision to expel a member.

After a closed session at its July 10 meeting, council voted 4-1 to remove member Janice Wheaton, who was elected Nov. 6, for undisclosed reasons. Wheaton, a newcomer to town government who received 511 votes, or 22%, opposed the move and openly said during two recent council meetings she was “blocked” from getting answers to questions and felt disrespected.

In a statement two days after the vote, town officials said they could not give reasons for the “difficult” removal decision made possible by provisions in the town’s charter, citing a closed session and the council’s code of ethics policy. Town Manager Sara Carter said the move is highly unusual and she has yet to find a record of it ever happening in the town’s history, while adding council gave it serious consideration.

The decision sent shock waves throughout Amherst, with many taking to social media to voice criticism. The town’s official Facebook page had a July 12 post displaying its statement on Wheaton’s removal that drew more than 40 responses, the majority voicing opposition to the move and questioning the reasoning behind it.

Comments on the town’s posted statement included changing the town’s charter to do away with the expulsion clause and opposition to four elected officials — Mayor Dwayne Tuggle doesn’t vote except in rare circumstances and did not vote on removing Wheaton — undoing the will of voters.

Tuggle and councilors did not comment on the removal.

Meanwhile, the town has posted on its website a call for applications for an interim appointment to fill the vacant seat by the Aug. 14 regular meeting. Council will have a special called meeting prior to then for the purpose of interviewing candidates, according to the notice. Council has within 45 days of the vacancy, or Aug. 25, to appoint a qualified member, according to the town’s request to the circuit court for a special election.

As of noon Wednesday, a judge had not yet ruled on the special election request. 

The request states a special election on Nov. 5 complies with all requirements in state code for such an election.

“The citizens of the Town of Amherst should enjoy the earliest opportunity to elect a new member of Town Council, but the election should be held in a manner to afford any interested candidates sufficient time to qualify for the ballot and campaign for the office,” the town’s request states.

Wheaton has not yet said if she will run for office again but she has the legal right to do so as a registered voter and town resident. Amherst County Registrar Francine Brown said if the special election is approved, residents who wish to have their names appear on the ballot per state code have at least 81 days before the election to do so, which would put the filing deadline at Aug. 16. Residents could also run as write-in candidates.

Before the vote to expel Wheaton, council went into a closed session and cited “personnel disciplining of specific public officers” as a reason.

Paul Kilgore, a former Amherst mayor and real estate agent, said he personally doesn’t believe the closed session should have applied in this case because a council member is an elected official and not an officer, appointee or employee of a public body.

“This overreach of elected authority should be repaired immediately by legislative action in the General Assembly,” Kilgore wrote in a letter to the editor of the Amherst New Era-Progress. “The discipline of an elected official in secret anywhere could lead our society into a very dark place.”

According to the minutes of all council meetings from January to June, Wheaton voted in favor with council decisions at each meeting through April. An apparent rift arose at the May 8 meeting when she voted no in measures resulting in five 4-1 votes. When asked by the New Era-Progress that night why she cast the no votes, she said she didn’t feel like she could make informed decisions based on a lack of information.

She was the lone no vote in two other matters at the June 12 meeting, minutes show. During that meeting, she spoke out against Tuggle removing a matter on planning future uses for a town-owned park site on Scott’s Hill Road from further review by a committee she served on and she felt he “cut me off at my knees.”

“I can’t ask questions?” Wheaton said in a raised tone during that meeting.

She left that meeting appearing upset. According to council minutes of all meetings for the first half of 2019, she was present for all votes except two that night — going into a closed session to discuss the performance of the town manager and adjourning the meeting.

The town’s charter section allowing expulsion of a council member requires concurrence of two-thirds of council. In researching the matter, Tom Berry, the town’s attorney, found a July 2014 advisory legal opinion from Virginia Attorney General Mark Herring, which he wrote to Town of Haymarket officials in a similar situation, that said in his opinion expelling a member by a two-thirds vote is a constitutional exercise of legislative power.

Sen. Mark Peake, R-Lynchburg, said in a phone interview Monday he was surprised to learn the Amherst town charter allows language giving members power to remove an elected official.

“It does concern me a board can remove one of its fellow elected members,” Peake said.

He said he knows no background on the situation, which he described as unusual. State code states council has to request a charter change from the General Assembly, he pointed out.

Preston Bryant, who represented Lynchburg and Madison Heights in Virginia’s House of Delegates District 23 seat from 1996 to 2006, said he spent much time on a House committee that reviewed local governments’ charters.

“I think it’s a little unusual to have a provision that gives carte blanche permission for a political body to expel a member for no reason whatsoever,” Bryant said, adding a standard such as malfeasance typically is stated. “My personal opinion is that should not be allowed. The town should give consideration to changing that.”

Council can send charter amendment requests to the General Assembly. The most recent came in 2018 when the state signed off on a charter change to make council election seats staggered four-year terms rather than two-year terms. Wheaton, who received the second-highest vote total last year, joined Councilman Kenneth Watts in receiving enough votes to land four-year terms while three other seats are set to begin a four-year status following the 2020 election.

Bryant said council may have information he doesn’t have but he feels it sets a “terrible” precedent and overruling the will of the voters is an act that “struck me as, ‘wow, this is somewhat over the top.’”

“This is a pretty heavy decision to make behind closed doors and not give the public any explanation,” Bryant said. “That just strikes me as wrong.”

Vance Wilkins, chairman of the Amherst County Republican Committee and a former Virginia Speaker of the House, said he could recall no other time in the county’s history a public body ousted one of its own members. 

“It will be interesting to see what happens this fall,” Wilkins said.

Reach Justin Faulconer at (434) 385-5551.