Legal Futility of Virginia’s Online Petitions

by Emilio Jaksetic

Currently, online petitions are advocating the removal of the superintendent of the Fairfax County Public Schools and the principal of Thomas Jefferson High School. (See the petitions here and here.)

Such online petitions are legally futile.

Under Virginia law, removal of elected officials such as Fairfax County school board members is handled differently from removal of appointed officials such as a principal or superintendent. According to Virginia Code, Section 24.2-230:

Appointed officials. “[A]n appointed officer shall be removed from office only by the person or authority who appointed him unless he is sentenced for a crime as provided for in [Section] 24.2-231 or is determined to be ‘mentally incompetent’ as provided for in [Section] 24.2-232.”

Accordingly, no petition signed by Virginians — regardless of the number of signers — can force the removal of an appointed official in Virginia. At best, a petition signed by Virginians can be presented in the hope of persuading the appointing authority.

However, the online petitions found at Change.org are unlikely to apply much political pressure on an appointing authority. They merely list the number of people who signaled their support, providing little information about who they are, much less whether they reside in the locality in question.

Elected officials.  Members of the Fairfax County School Board are elected officials. They can be removed either (a) by the voters at the next election, or (b) by satisfaction of the removal procedures set forth under Virginia Code, Title 24.2, Article 7.

To start the removal process, a removal petition “must be signed by a number of registered voters who reside within the jurisdiction of the officer equal to ten percent of the total number of votes cast at the last election for the office that the officer holds.” (Virginia Code, Section 24.2-233.)

Furthermore, the removal petition must set forth statutory reasons for the requested removal, which are limited to the following:

  1. “neglect of duty, misuse of office, or incompetence in the performance of duties when that neglect of duty, misuse of office, or incompetence in the performance of duties has a material adverse effect upon the conduct of the office” [Virginia Code, Section 24.2-233.1(1)]; or
  2. upon conviction, after all rights of appeal have terminated, for any specifically listed  offense [Virginia Code, Sections 24.2-233(2) through 24.2-233(4)], and the conviction “has a material adverse effect upon the conduct of such office.”

Even if an online removal petition lists reasons for removal that track the statutory language, the signature requirement will not be satisfied. Because a petition to remove a member of the Fairfax County School Board must be signed by people registered to vote in Fairfax County, any “votes” by unidentified people in support of an online petition — no matter how numerous — are legally useless. Online petitions offer no proof that the people supporting the petition are registered voters in the jurisdiction in question. Even if someone attached a copy of such an online petition to a removal petition filed in a Virginia court, it likely would not be counted toward the 10-percent threshold of registered voters.

Online petitions may be useful to allow people to express their opinions and beliefs about public officials and their actions. But they are legally insufficient under Virginia law to make any practical contribution to the removal of appointed or elected officials.  Anyone interested in removing a public official from office in Virginia should not place their hopes on any online petition.

Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.

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20 responses to “Legal Futility of Virginia’s Online Petitions

  1. James Wyatt Whitehead V

    Keep the feet of education leaders in Fairfax close to the fire. If you make that fire hot enough they will eventually move along. It took 6 years to move Williams out of Loudoun. But he did leave…
    https://thevirginiastar.com/2020/11/16/loudoun-county-schools-superintendent-announced-sudden-departure-for-texas-superintendent-position-parents-in-new-district-react/

  2. I’m lost. Why do they want Brabrand out? Here is the first sentence of the Change.org petition …

    “Scott Brabrand has continued to put the safety of young children attending FCPS schools and has ignored the complaints of parents and students of Fairfax county.”

    I assume the author meant “put the safety of young children attending FCPS schools [at risk] and has ignored …”

    The children’s safety is put at risk because he wanted to open schools during COVID?

    The website claims the petition was filed a year ago. That was before the COVID outbreak.

    • A year ago? Ha ha. So someone was a critic to begin with? sounds familiar! Even signatures on paper petitions can be problematical in terms of validating they are legitimate AND are actually in the jurisdiction of the elected. I note that State candidates have to get so many signatures – who actually checks to see they are not “illegal” or “dead” , etc?

      Some states actually have an ability for citizens to set up recall eletions, like they can also do ballot initiatives. Again, someone has to vett and validate those signatures.

      • The general registrar of each jurisdiction is responsible for validating the signatures on petitions. The state Dept. of Elections maintains a master database that the registrar can use to do this. Also, I assume that representatives of any rival candidates would also “help” identify any invalid signatures. For detailed procedures to be used, see the handbook the department provides to each registrar. https://www.elections.virginia.gov/media/grebhandbook/archives/2019-chapters/individual-chapters/16_CandidateProcessing2019.pdf

      • “who actually checks to see they are not “illegal” or “dead” , etc?”

        Ask two-time rejected CD-2 candidate Scott Taylor. In addition, since the list of signatories is posted someplace, an occasional citizen might detect an irregularity, i.e., their own name, or a dead spouse, as was the case for Scott and his campaign workers, who then compouded their sin with threats.

        As to electronic signatures. The only online petition I ever signed required name, address, and email, which I’m sure got sold to a spammer. I guess verification is done when the signer complaims about the spam.

      • “A year ago? ”

        These online petitions are created when candidates are announced, or when the appointee is announced… or born?

        Look at Obama, he had to publish 1961 newspaper birth announcements to prove his place of birth. Such foresight!

        Don’t you think that a petitioner can’t pull the same fantastic trick, drafting the petition before the subject is born?

  3. Ah, but it’s the least one can do. No, really, the least.

  4. RE: Elected officials – I agree with the author. I sincerely doubt an on-line petition would satisfy the requirements of Title 24.2, Article 7. The one time I organized such an effort we began collecting signatures on paper, asking those who signed to show a voter I.D. card or at the very least verbally confirm that they were registered voters. Most people who were sufficiently interested in the issue to sign the petition were happy to show us proof of voter registration. Also, we only collected signatures in the affected jurisdiction.

    I’m pretty sure we would have collected the number of signatures needed to go to the next step, but the elected official in question resigned his position after we’d barely gotten started.

    • Nixon? Has there ever been another? Rostenkowski and Traficant had to be booted as they sat in their cells. With Zoom that may not happen again. “Resign? I can attend and vote via zoom. It’s only 5 to 10, so…”

      • The person against whom I organized a removal petition was a local elected official in Virginia.

        • Wait! No way! Resigning is just not a part of The Virginia Way.

          Now, let’s hear the rest of it. He wept at the city council meeting, pledged his soul to Jesus, and was re-elected 2 years later, right?

          • He was a Commonwealth’s Attorney who was caught lying in court in order to convict a young man for the well-publicized murder of an elderly woman. Court transcripts pretty much proved his “misrepresentation of facts” (as his supporters put it).

            I am a huge proponent of catching, convicting and punishing criminals but I also strongly believe that a prosecutor should not be allowed to lie in court to obtain a conviction. Even though I had voted for the guy three times I organized a removal petition and started collecting signatures. A few days later the man resigned his position. As far as I know he has not been elected to any public office since and I do not know anything about his relationship with Jesus.

            The Innocence Project at UVA Law School took on the young man’s case and his conviction was overturned. While I do not think the young man was actually guilty, to this day I do not know for certain that I did not help free a murderer from prison. I have never once regretted getting involved in the case, though.

            Does this harm my “conservative creds”? 😉

          • You are NOW my hero. Prosecutorial misconduct is waaay more of a problem than police brutality. The fact that the prosecutors are harder to punish (SCOTUS protected) leads to real systemic racism and other problems. The Bar has to step up and ruin these people for life if the system will not.

            Blacksone? Blackwell? “It is better 10 guilty go free than to convict an innocent man”. In his country it is probable that for every 11 men executed, one was innocent. We’re sick!

          • Well thank you.

            I still consider it one of, if not the, most important of the many political activities I have involved myself in.

          • “WayneS” wait I thought you were a centrist, haha.

            Outside of that I completely agree that your actions were of the highest standard.

            NN you were right on your first take, it was Blackstone’s ratio.

          • I knew it was some black guy… wait.

        • If this is the guy I’m thinking of, he had a whopping 4 years of experience as an attorney before he was elected to Commonwealth’s Attorney. Graduated law school in 1988, elected in 1992.

          • And his initials are GLC, right?

            I think he’s still practices law in Culpeper.

            He was eventually publicly reprimanded by the Virginia Bar for his handling of that murder case.

        • That’s the one

  5. In rural SWVA the embarrassment caused by the ignorant comments of elected public officials is prevalent. The GOP stayed silent in one county as a BOS member called a LGBT sticker “downfall of humanity ” .

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