The effort to recall Fairfax County School Board Member Elaine Tholen hit a dead end Friday, when Albemarle County Commonwealth’s Attorney Jim Hingeley asked Fairfax Circuit Court Judge Richard Gardiner to dismiss the recall petition. According to Tholen’s press release, Hingeley said the petition did not have factual allegations that met the legal standard.
“In this case, a small group of people unhappy about Covid restrictions tried to use the law to substitute their opinion for a unanimous consensus of the Fairfax County School Board. I was happy to hear the special prosecutor tell the judge that the case was about a policy disagreement, and that the recall process is not a vehicle to resolve such disputes with elected officials and governing bodies. That is why we have elections,” Tholen said.
The Open FCPS coalition found a partial win when Gardiner dismissed Tholen’s Motion to Quash the petition. But the overall result highlights the challenge recall efforts face in Virginia, where successful recalls are rare, and the law is focused on “neglect of duty, misuse of office, or incompetence in the performance of duties,” rather than on political disagreement.
Under Virginia law, once the petition to recall has enough signatures and is properly submitted to the court, the petitioners are no longer active in moving the case forward. Instead, the case is prosecuted to trial by the commonwealth’s attorney, with a circuit court judge hearing the case and a defense attorney representing the targeted official. Commonwealth’s attorneys have broad discretion over what cases they prosecute.
The judge then decides whether or not to remove the official, and depending on the timing, a special election to fill the vacant seat may be held.
Although recall trial decisions can be appealed, since the petitioners aren’t part of the case, they can’t appeal the results.
Fairfax County Commonwealth’s Attorney Steve Descano is himself facing two separate recall efforts. He recused himself from the Tholen recall case and recommended Hingeley. Open FCPS attacked Hingeley for deciding not to prosecute the removal.
“Even though the Judge today deemed our petitions sufficient, Descano’s handpicked replacement commonwealth’s attorney, James Hingeley, put politics ahead of our kids and refused to advance the case,” the coalition said in a Twitter statement.
According to Tholen’s release, Open FCPS lawyer Charles Spies said Hingeley was pushing the same agenda of the school board and Descano.
“I disagree with that,” Hingeley said in court, adding that his decision “was not in any way ideologically driven.”
Hingeley defeated Republican incumbent Robert Tracci in 2019. He was funded mostly by Democratic donor Sonjia Smith, but he also received funds from the George-Soros-linked Justice and Safety PAC, which helped elect a wave of progressive prosecutors, including Descano, according to The Virginia Public Access Project (VPAP).
Open FCPS has said their petition isn’t motivated by Republican or Democratic allegiance, but Open FCPS Coalition PAC is largely funded by $65,000 from Republican advocacy organization N2 America Inc, according to VPAP. Pete Snyder also gave the organization $15,000 during his campaign for the GOP nomination for governor as part of his Open Our Schools push.
Delegate Marcus Simon (D-Fairfax) tweeted, “The statute is being misused to frivolously harass elected officials by a small minority of hard right partisans who can’t bear to see them doing what a majority elected them to do.”
Open FCPS is still collecting signatures for two remaining recall petitions against school board members Laura Jane Cohen and Abrar Omeish, but it’s unclear how those recalls will turn out differently even if they obtain enough signatures.
“Parents proved today that we can mount a massive grassroots effort to gather thousands of signatures to recall a school board member,” Open FCPS founder Dee O’Neal said in a press release. “It is a shame that the voices of thousands of parents have been silenced by a Commonwealth’s Attorney, who just like the School Board, is more interested in politics than the wellbeing of our kids.”
“This legal case has been an ordeal for me, but our students have been struggling through a much greater one,” Tholen said in her release. “Please, let us put these divisive events behind us and work together to give our students the positive, undivided attention they deserve.”
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Eric Burk is a reporter at The Virginia Star and The Star News Network. Email tips to [email protected].
Photos “Elaine Tholen” by Elaine Tholen for School Board and “Classroom” by Annandale High School.
