Why the timing of Fairfax City mayor’s resignation matters

WASHINGTON — With Fairfax City, Virginia, Mayor Richard “Scott” Silverthorne set to resign over charges he agreed to provide drugs for a group sex encounter, the City Council is set to meet Tuesday night to take up the next steps — which are highly influenced by the fact that his resignation is effective Thursday.

Had Silverthorne’s resignation been effective Monday, when his decision was announced, it would have come more than 90 days before November’s general election. Under Virginia law, that would have most likely led to a special election for mayor Nov. 8.

But by making his resignation effective Thursday, the vacancy in the office comes 89 days before the election. That means the new mayor’s race could be held as late as November 2017, just six months before the regularly scheduled election for a full two-year term.

Silverthorne was arrested last week after Fairfax County police said he bought meth in the parking lot of a Tysons hotel to bring to a sex party he had agreed to online with an undercover police officer. Both Silverthorne and the officer had brought other men with them, and two of the men with Silverthorne were arrested on drug distribution charges.

Election experts in the city have been considering the state laws that govern the special election to ensure the city is following the proper interpretation, since the law clearly requires the City Council to ask within 15 days of the office becoming vacant that the circuit court issue a writ of election.

The council is allowed to ask for that order before the resignation becomes effective, but the city has said the council might leave Tuesday night’s closed meeting without making any public announcements.

The law requires that a special election “be held on the date of the next general election in November or in May if the vacant office is regularly scheduled by law to be filled in May. However, if the governing body or the school board requests in its petition a different date for the election, the court shall order the special election be held on that date.”

The leading interpretation among city officials at the moment is that since there is no scheduled May 2017 general election in the City of Fairfax, the default date for the election would be on the same day as Virginia chooses its next governor, in November 2017.

The City Council also is allowed to request a standalone election date, although there are a number of legal constraints on that, and it would cost the city more. No special election is permitted within 55 days of a general or primary election, and no special election is allowed on the day of a primary election; special elections, however, can be held on the same day as a general election.

Either way, the City Council is responsible for appointing an interim mayor within the next 45 days to lead the council until a special election is held. After his arrest last week on drug distribution charges, Silverthorne temporarily appointed City Councilmember Jeffrey Greenfield to serve as acting mayor.

The day-to-day operations of the city are handled by a city manager, not the mayor or council.

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