Special Prosecutor to Handle Open FCPS Coalition Case

Special Prosecutor to Handle Open FCPS Coalition Case

Previous case to recall Elaine Tholen was dismissed.

 The Open FCPS Coalition, a self-described bi-partisan, grassroots, volunteer group of parents and citizens, recently filed its petition with Fairfax Circuit Court for recall of Springfield District School Board member, Laura Jane Cohen. Cohen is one of three board members targeted by the group for recall action, along with Elaine Tholen, Dranesville District, and Abrar Omeish, At-Large. The Coalition says that in their observations, out of 12 school board members, only one member took actions toward reopening schools.  

The Coalition selected three members for recall in 2020-21, saying the choice was based on vote count for each seat, and to include one school board member at-large, for recall petition expediency. 

Recall petitions require ten percent of the total number of votes cast at the last election for the office.

The Coalition filed in court against Tholen in August, but the Circuit Court granted the Commonwealth Attorney’s motion to dismiss the Tholen case based on the position that “the petition is not based on facts establishing probable cause for removal.” 

The first hearing in the December petition filing against Cohen was Dec. 22.  No petition has been filed to date against Abrar Omeish.

At the Dec. 22 hearing, Judge Richard E. Gardner heard a motion from the Fairfax County office to recuse itself as the case prosecutor since Commonwealth Attorney Steve Descano “has interacted with Cohen on a number of occasions and they have campaigned together.” In granting the motion, Judge Gardner, who has been designated by the Chief Judge to hear all matters related to the recall petition, must assign another available Commonwealth’s Attorney from outside the local office as a Special Prosecutor for future hearings. The Tholen case also enlisted a Special Prosecutor. The next hearing, likely in early February, is expected to consider a motion to dismiss from Cohen’s attorney or possibly from the appointed special prosecutor, as in the Tholen case.

Virginia is one of the few states which addresses recall through State statute, not Constitutional Law. In bringing a recall before the court under the statute, the petitioners must prove “material adverse effect upon the conduct of the office.” According to statute, recall efforts may be due to neglect of duty; misuse of office; incompetence in performance; conviction of misdemeanor related to drugs or hate crimes; or sexual misconduct.  The Open FCPC Coalition filing stated “Laura Jane Cohen voted to keep all Fairfax County Public Schools closed,” alleging negative impacts to various groups of children.

Petitions carry a penalty of perjury requiring signers to affirm full reading and understanding of allegations, which the Virginia Supreme Court ruled applies to all signers, not only to petition organizers. Writing for the William and Mary Law School, Cody Brandon advised, “The strict construction of the statute requires caution and increased investigation by voters approached by circulators. Signing one of these petitions that includes false allegations could subject thousands of voters to charges of perjury.”  

If the court moves the case forward, either the judge or a jury will decide the authenticity of the petition accusations and whether they meet the statute standards for recall.