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Our view: Trying to make sense of Montgomery County clerk dispute

Our view: Trying to make sense of Montgomery County clerk dispute

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Let’s try to make some sense out of the controversy in Montgomery County over the clerk of court, shall we?

(Spoiler alert: Neither side will like our analysis of the situation.)

First, the basic facts, which aren’t really in dispute: Last fall, Erica Williams stood for re-election. Among the things she cited on her behalf was a “qualified and dedicated” staff of deputy clerks. After she won election, and prepared for a second term, she declined to re-appoint four of those deputy clerks (a fifth declined reappointment.) That’s about half her nine-member staff who apparently went from “qualified and dedicated” to out of a job.

Technically, the deputy clerks weren’t fired; they simply weren’t re-appointed, although the end result surely felt the same to them. Now, there’s a public uproar in Montgomery County, with a petition being circulated trying to get Williams removed from office, and the Board of Supervisors is demanding answers and threatening to cut her pay.

That’s a lot to unpack, so let’s unpack it piece-by-piece.

First, can Williams really just let people go for no reason – or perhaps some unstated reason? On this point, the law is clear: Yes, she can.

Virginia is an “at will” employment state, which means employees serve at the employers’ discretion – and the employer can let them go for almost any reason whatsoever, or no reason at all, as long as there’s no violation of some protected status. In other words, discrimination based on age, gender, race, religion, and so forth.

Other than that, employers can fire employees anytime they want. That’s considered part of our “good business climate.”

Furthermore, elected officials clearly have the power to install appointees to help them carry out their mandate. Just as the next president will pick his or her own cabinet members, the clerk is entitled to pick whomever she wants to help her carry out her agenda.

It’s curious that Williams got re-elected claiming she had a “qualified and dedicated” staff and then proceeded to replace four of them, but that’s no different from a president getting re-elected on the grounds that things are going well – and then proceeding to reshuffle his cabinet for a second term.

It just feels different here because this is closer to us, and thus more personal – and because we don’t think of deputy clerks in the same way that we think of, say, a Secretary of Defense.

We will point out that Williams may have alluded to such a change in a candidate forum last October, in which she cited improvements that her office had made. Quoting now from our news story at the time:

If re-elected, Williams said she anticipates the improvements will continue.

“I’m going to improve everything,” Williams said. “I’m going to walk in and talk to citizens and ask myself and my staff what we can do better.”

Presumably, in her mind, these personnel changes are part of “improve everything.”

The real question is: Should Williams have done this? That’s a political question, and as such, can and should be adjudicated by the voters themselves. Unfortunately for those who take umbrage at her actions, the clerk serves an eight-year term – a curious feature of Virginia’s constitution that dates back to 1902, when clerks were often the de facto county administrators of their communities.

That means voters will have to wait until 2023 to weigh in.

Williams is a Democrat; a leader in the Montgomery County Republican Party is leading a petition drive to initiate a court review. Virginia doesn’t have recall elections like some states do, but there is a rarely-used provision for a judge to remove an elected official.

This petition drive is a fundamentally bad idea for two reasons, and not just because it smacks of political opportunism.

n The first is philosophical: Democracy is not well-served if election results can be overturned; we need to give elected officials time to make even unpopular decisions that might play out well in the end. We set terms for a reason.

n The second is legal: Unlike other states, Virginia properly sets a high bar for removing someone from office. The key language here is “for 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.”

That is plainly not the case here. Williams may have made what to many is an unpopular decision, but deeds are still being filed, marriage licenses still being issued. This is ultimately a political dispute that ought to be settled in the political realm, which means the voting booth. That’s not a satisfying answer to opponents because eight years is a long time to wait, but life is often unfair.

However, the clerk has set herself up for another, more immediate, line of inquiry.

The Republican-controlled Board of Supervisors voted Monday 4-3 – along party lines – to give Williams a week to answer certain questions they have about her conduct in office. Specifically, why has her staff turnover been an astonishing 155 percent? And how many hours does she actually spend in the office?

Should the supervisors be demanding such questions of what is, legally, an independent office? Generally, the answer to that would be “no” – the clerk does not report to them. The constitution intended the clerk as a separate office unto itself precisely to avoid such meddling.

This case, though, is an exception – not because of the questions involved, but because the supervisors supplement Williams’ state-paid salary each year by $21,700, to bring her total pay to $142,691.

It’s not uncommon for local governments to supplement the pay of constitutional officers. It doesn’t seem unreasonable then for those governments to be able to make sure their dollars are being well-spent, however the supervisors define well-spent.

In effect, the supervisors are asking: Is Williams a bad boss? That may, ultimately, turn out to be a political question, too. If the supervisors are paying part of Williams’ salary, though, they’re entitled to ask however many questions they want – and voters can render their judgment all around, on both the clerk and the supervisors.

Williams didn’t have to take the extra money. Since she did, these are the strings that come with it.

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