Despite media reports and analysis suggesting otherwise, the prosecutor playing coy, and there only being a single reporter who did some accurate legal research, the fact remains that if convicted of any of the class 3 misdemeanors, Virginia Beach Mayor William Sessoms can be forcibly removed from office during the sentencing phase of his case.
November 4, 2015 Mayor William Sessoms [nominal R] was charged with five violations of Va. Code § 2.2-3112 a portion of the Virginia Conflict of Interest Act. Pursuant to Va. Code § 2.2-3120 this type of violation is prosecuted as a class three misdemeanor which carries the lightest sentence under the Conflict of Interest Act.
As reported here and here, conviction carries a $500 fine.
This should be a huge victory for Sessoms as the charges will not make for an easy conviction, and the comparatively small fine is not commensurate with the criminality perceived by many members of the public.
A special prosecutor
Special prosecutor Michael Doucette was appointed after Virginia Beach C.A. Colin Stolle recused himself. Doucette held a press conference where he answered press questions about the prosecution of Sessoms. Doucette displayed a superb knowledge of the case, the procedure, and the law, except on the issue of removal:
When first asked:
There is no requirement in the statute that he be removed or resign…
When asked differently:
My understanding of Virginia law, and I’ve been a prosecutor for 31 years, is that Judges have the authority that the General Assembly give them, and the General Assembly has not given the Judges the authority to remove someone from office for this particular violation. There are other statutes that are out there that are basically automat, Any felony is an automatic removal. Any sex offense is an automatic removal. This is not on that particular list and so my understanding of Virginia law is that, no a Judge can not do that, I’ve had Judges disagree with me, so, but I don’t think, in my opinion a Judge could not do that.
When read a portion of Va. Code § 2.2-3122 he said:
And I have, I had forgotten about that and I’d have to look at that again because there are different provisions for different violations, to tell you the truth it is a complicated Act…I’d have to look at that again.
Enter a reporter doing actual reporting
Nadeen Yanes of News Channel 3:
Upon conviction thereof, the judge or jury trying the case, in addition to any other fine or penalty provided by law, may order the forfeiture of such office or employment.
She repeats it in the news clip, here. It appears the editors though did not want this to slip into the written article.
So what IS the penalty for Sessoms if convicted?
Up to a $500 fine. Va Code § 2.2-3120
Disgorgement of ill-gotten gains. Va Code § 2.2-3124
And Ms. Yanes is correct, under Va. Code § 2.2-3122:
Any person who knowingly violates any of the provisions of this chapter shall be guilty of malfeasance in office or employment. Upon conviction thereof, the judge or jury trying the case, in addition to any other fine or penalty provided by law, may order the forfeiture of such office or employment.
It is not a secret, it is not a trick, it is right there in Va. Code § 2.2-3122: The Judge has the power to remove Mayor Sessoms from office.
I wonder when the special prosecutor will figure this out…
7 comments
[…] As I previously indicated Sessoms is subject to removal if convicted. […]
I don’t exactly understand how constitutionally a discretionary judicial ruling can remove from office a duly elected state official without some form of impeachment process being undertaken. It sounds strange to me, has Va. Code § 2.2-3122 every been used in this manner? Has the State Supreme Court every had to rule on it’s use to actually remove an elected official as far as you know? Very odd, does a jury rule on it as a sentencing option?
LW, My presumption that there was no caselaw on this issue was wrong. There is one case in Virginia under a previous constitution that makes it clear that the power of removal is inherently a judicial function, sometimes performed by the legislature, and that the officer must be given the right to notice, to present evidence, and to appeal. Fugate v. Weston 1931. This case is one of the most complicated Va. SC decisions I have ever read substantively and procedurally.
That being said, it did tip me off to what types of things to look for in the current Va. Constitution. Under Art. IV Sec.14 of the current Va. Constitution the legislature has extremely broad powers: “The authority of the General Assembly shall extend to all subjects of legislation not herein forbidden or restricted; and a specific grant of authority in this Constitution upon a subject shall not work a restriction of its authority upon the same or any other subject.”
In short, although there is a Va. constitutional means to impeach elected officials, the legislature still can prescribe a means of removal as long as the officer receives due process. Here, with a criminal trial, due process will undoubtedly apply, and the grant of authority to the judiciary does not violate the Va. constitution.
I see and that was the linkage I didn’t grasp, the grant of authority extension, very interesting. Thank you for the effort in doing this review. I wonder how many sitting state judges even realize such an extension of powers via grant of authority even exists under Va. Code § 2.2-3122 .
If Sessoms gets anything other than a fine, everyone will be surprised. The statute of limitations was his Get Out of Jail card and Bryant will work to kill the rest.
Yes, I would be surprised if removal was imposed. The prosecutor will eventually have to ask for it, and a strong case for prior bad acts will need to be developed in order to show a pattern of behavior warranting removal.
Hold on to your girtle kids the shows not over yet. Stay toned in round two is coming.