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Virginia Beach City Council candidate wants courts to kick two others in race for Beach District seat off the ballot

Richard “R.K.” Kowalewitch is a candidate in the special election to represent the Beach District on the Virginia Beach City Council. [John-Henry Doucette/The Princess Anne Independent News]

BY JOHN-HENRY DOUCETTE

COURTHOUSE   Richard “R.K.” Kowalewitch, a businessperson who has run for local office unsuccesfully in the past, recently said he liked his odds this year in a three-person race to represent the Beach District on the Virginia Beach City Council.

Now Kowalewitch wants to knock his two competitors off the ballot, claiming they are not eligible to run – even though Donna Patterson, Virginia Beach’s director of voter registration and elections, says he seems to be confused about a law that was meant to prevent people from holding two offices at the same time.

In a letter to Patterson and a recent court filing, Kowalewitch says his two competitors in the Beach District – Guy Tower and Rosemary Wilson – cannot run because Tower is a temporary appointee to the council in the seat he seeks and Wilson is representing another seat on the council while running in the Beach District. 

Kowalewitch also argues that two other local politicians running for seats they represent as temporary appointees should not be eligible to run. Those candidates, both representing the Rose Hall District, are Michael Berlucchi, running for the City Council seat, and Jessica Owens, a candidate for the district’s School Board seat. 

For now, there is no indication anyone is going anywhere. Absentee voting started on Friday, Sept. 20. A request by Kowalewitch for an injunction is scheduled to be heard by Circuit Court Judge H. Thomas Padrick Jr. on Friday, Oct. 11, according to a court record.

“I think he’s misreading the statute,” said Tower, an attorney, on Tuesday, Sept. 17. “I disagree with his interpretation.”

“I am confident that I am eligible to continue my service to the residents of Virginia Beach,” Berlucchi said in an interview.

Wilson declined to comment. Owens could not be reached by telephone. 

Kowalewitch based this argument upon what, according to an email to him written by Patterson, appears to be “some confusion” about the meaning of a state code section Patterson said is intended to prevent officials from holding offices simultaneously. 

Saemi Murphy, an attorney representing the registrar, said on Sept. 13 in court that the law cited by Kowalewitch is “very clear” in that it means to address whether an elected official can hold two offices simultaneously.

In a response to Kowalewitch’s filing, Murphy argued the code “shows that it prohibits holding of two offices, but not from running for another office while holding an office.”

If so, that means the candidates Kowalewitch wants removed from the ballot can run.

Kowalewitch’s initial letter to Patterson, like the later court filing, cites a section of the code that says, in part, “no member of a governing body of a locality shall be eligible, during the term of office for which he was elected or appointed, to hold any office filled by the governing body by election or appointment … ”

“I believe that the candidacy of the above four named individuals, who currently occupy their seats both elected and appointed, is in violation of this state law,” Kowalewitch wrote.

Patterson told Kowalewitch via email – after consulting with state elections officials – that he cited part of the state code that aims to prevent folks from holding multiple offices simultaneously.

Patterson’s response limits its discussion to the example of Tower, who is an appointee like Berlucchi and Owens, and Wilson, who was elected to the City Council in an at-large seat and now seeks another seat amid her current term.

“[T]here is nothing in the law that prohibits Ms. Wilson from seeking election for [the] Beach seat,” Patterson wrote. Current office holders can run for other offices and don’t need to resign, except when running for mayor, she wrote. 

That last point came up last year when two members of the City Council sought the mayor’s office after the resignation of Will Sessoms. Councilmembers Ben Davenport and Bobby Dyer both resigned their respective seats to run in a special election. Dyer ultimately won. 

Wilson doesn’t need to resign to run, though, according to the registrar. Should she win in the Beach District, Wilson would vacate her at-large seat in order to take the Beach District seat. 

Tower, too, can run, according to the registrar. Patterson wrote he was appointed to hold the seat until it is filled during a special election. Holding the seat as an appointee doesn’t mean he cannot run for it, she wrote.

“His appointment to the seat ends after the special election is certified, regardless of whether he wins, loses or doesn’t run at all,” Patterson wrote. “There is nothing in the law that prohibits him from seeking election for this seat.” 

Kowalewitch filed a request for an injunction in Circuit Court on Monday, Sept. 9, and the matter was discussed before Circuit Court Chief Judge Glenn Croshaw a few days later. Croshaw, who had not seen the filing, said on Friday, Sept. 13, that he would need to determine how to proceed on the matter and he did not want to get into the merits of the case.

At that point, discussion included whether the legal matter might need the attention of outside judges, such as with the residency issue that led to David Nygaard being declared ineligible to hold the Beach District seat on the council earlier this year. Judges found he had moved into the district only to run, and that vacancy led to the special election scheduled for Tuesday, Nov. 5.

“We went through this before with David Nygaard,” Kowalewitch noted at one point.

“Don’t think I’ve forgotten,” Croshaw replied.

The Nygaard matter was one of three residency issues over the past year that led to the vacancies that will be filled by special elections on Nov. 5. Nygaard had defeated John Uhrin, a longtime incumbent in that race, as well as Kowalewitch and John Coker, a candidate who dropped out after ballots were printed but still gained thousands of votes.

In Rose Hall, former City Councilmember Shannon Kane resigned because her family was moving outside the district. She resigned before she moved, and she is currently a candidate for the Virginia House of Delegates.

Also in Rose Hall, former School Board Member Joel McDonald was found to have lived outside the district amid his term, and his seat was declared vacant. McDonald moved back into Rose Hall. He is running in the special election to reclaim the seat in a field of four candidates that includes Owens.


© 2019 Pungo Publishing Co., LLC

The Independent News

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