CHESAPEAKE — As some Chesapeake residents are pushing back against an effort to force Don Carey out of his council seat amid his bid for mayor, the dispute highlights a unique election law on the books in Chesapeake compared to surrounding cities.
It’s a legal question expected to be handled in court, primarily because of different interpretations of Chesapeake’s city charter — seemingly the only charter for a major Hampton Roads city that puts the city in this novel position.
Multiple council members are challenging mayors this November elections in surrounding cities, like Virginia Beach and Portsmouth. Yet Chesapeake finds itself in this situation as it’s the only Hampton Roads city with a provision in the city charter that requires council members to formally resign from their council seat during their mayoral election bid instead of after. Carey’s council term is set to end Dec. 31. Chesapeake’s charter provision calls for a council resignation by June 30, though it was established when Chesapeake held city elections in May.
The ongoing legal question has spurred division among council members, some of whom are practicing a boycott of certain city business they don’t believe Carey should be part of, like closed sessions, as a result.
At a July 23 meeting, some residents said Carey was being penalized for an oversight issue in the charter, and called for council to make the appropriate changes in lieu of legal action. But that’s challenging in a Dillon’s Rule state like Virginia, where the General Assembly determines the scope of local governments’ power. That means when a city needs to update its charter, state legislators are the ones who can make it happen.
“No two local government situations are alike, and they’re often quite obscure provisions that are at issue,” said Richard Schragger, a law professor at the University of Virginia.
He added that in Chesapeake’s case, it can be tricky because even if the dates should have been changed, the charter also clearly states June 30.
“So then the question becomes, if there’s ambiguities in the interpretation of that provision, who makes that decision? And generally we end up in courts when that’s the case,” Schragger said.
For most Hampton Roads cities, council members who declare candidacy in a mayor’s race must formally resign their council position following the election or upon the start of the newly elected mayor’s term, according to the respective city charters. That includes Norfolk, Hampton, Suffolk and Virginia Beach.
In Virginia Beach, Councilman Chris Taylor, representing District 8, has joined a crowded field to challenge the sitting mayor. To do so, Taylor had to file a formal resignation letter effective after the election since his council term spans until 2026, which will necessitate a special election. His resignation will take effect Dec. 31, regardless of whether he wins or loses the mayoral race.
Sabrina Wooten is another Virginia Beach council member challenging the mayor, but her term ends at the end of the year.
Portsmouth’s charter lacks any resign-to-run requirement. The current vice mayor, Lisa Lucas-Burke, is challenging sitting Mayor Shannon Glover. There is no apparent provision in Newport News’ charter that addresses resign-to-rule stipulations, but a process for filling vacancies is included.
General Assembly action in 2021 shifted Chesapeake’s elections from May to November, but the accompanying provision for resignation was not altered, according to an opinion issued in May by Republican Virginia Attorney General Jason Miyares. His opinion concluded that Carey was required to step down by June 30.
In March, Carey declared a bid to challenge Mayor Rick West. On July 9, a majority of council members directed the city attorney’s office to file a writ of mandamus with the Circuit Court asking a judge to compel Carey to resign from his position as he seeks election as mayor.
While it’s still unclear when the city will formally file the petition in Circuit Court, Carey said he was officially served last week by the city with a notice of intent to file. City Attorney Catherine Lindley previously said a “reasonable time” must lapse before filing with Circuit Court, though she has declined to specify what that timeframe will be.
Carey has previously called the move political and unethical.
“Citizens realize how foolish this endeavor is for council to waste taxpayer dollars to attack a political opponent,” he said in a phone interview Monday.
Carey was first elected to City Council in May 2020. He assumed his role July 1 when Chesapeake still held local elections in May instead of November. In Miyares’ opinion, he stated that though resignation would have the effect of shortening Carey’s term, it’s “due to his voluntary decision to seek election to the office of mayor, as was the case prior to the 2021 amendments for council members seeking to become mayor in middle of their otherwise four-year term.”
Around a dozen residents spoke at a July 23 meeting, mostly expressing frustration with division among council and the city money and resources that will be dedicated to litigating the issue. Others said he should stay in his seat through the end of his current term.
Resident Nancy Pettigrew and George Reed of the New Chesapeake Men for Progress argued that the intent of the charter change law wasn’t to result in a monthslong vacancy when a council member runs for mayor.
“Forcing Councilman Carey off the council at this point in the year will hamper the work that the City Council does,” Pettigrew said. “And in fact, we are already seeing that happen.”
Reed cited a summary document about the 2021 law when it was passed, which states the terms of mayor, council and school board members should not be shortened as a result of shifting elections to November. It also states all those members elected at a May general election and whose terms end as of June 30 “shall continue in office until their successors have been elected at the November general election and have been qualified to serve.”
Another election-related bill passed that year amended that portion of state code and the clause Reed cited was removed.
“We ought to have a writ of mandamus to get our city attorney to configure our charter to meet the state law,” Reed said. “I say to you there must be a different agenda. You should explain that agenda to the public. Because it’s certainly not running good governance with transparency and accountability.”
Natalie Anderson, 757-732-1133, natalie.anderson@virginiamedia.com
