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WISE — An appointed Pound Town Council member will not participate in council business at least until Nov. 16, a Wise County judge ruled Friday.

Circuit Court Judge John Kilgore issued a preliminary injunction barring James Pelfrey from participating in council meetings after hearing motions on a lawsuit against council members Glenn Cantrell, Danny Stanley and Clifton Cauthorne and the town.

The suit, filed Sept. 28 by town council candidate Leabern Kennedy and nine other residents, stemmed from a Sept. 17 meeting, which was opened by Cantrell and Stanley without the presence of Cauthorne or Mayor Stacey Carson. The two then voted to appoint Pelfrey to fill the seat vacated on Aug. 17 by Marley Green.

The suit, which seeks to invalidate Pelfrey’s appointment, claims that Cantrell and Carson did not form a quorum since they were only two members of the five-seat council specified by the town charter.

Jonesville attorney Sidney Kolb, representing the plaintiffs, told Kilgore that the town is experiencing irreparable harm because of Cantrell and Stanley’s action and because of their and Pelfrey’s subsequent moves to seek bids on town police vehicles.

“There’s no pressing business that they have to take up,” Kolb said, asking for Kilgore to take action.

Kolb also cited Virginia Code section 49-3 in claiming that Pelfrey was not sworn in by an authorized official, since he took the oath of office from the town FOIA officer instead of a judge, court clerk or certain state officials.

Town Attorney Cameron Bell argued that a 2010 state attorney general’s opinion on quorums for governing bodies ruled that the actual number of members on a body should determine the quorum. In Pound’s case on Sept. 17, that quorum would have been two of three remaining members since two seats were vacant.

“Whether someone can absent themselves and prevent a quorum is a separate matter,” Bell said in an apparent reference to Cauthorne’s absence from the Sept. 17 meeting.

Bell said it was “incredibly troubling” that Kolb and “people who are not elected to town council” apparently had a copy of a document he provided to council members on the quorum issue, claiming attorney-client privilege.

“We’re probably writing a future bar exam for students on what has gone on in Pound,” Bell said later.

Kolb cited the 2006 Virginia Supreme Court decision on Jakabcin v. Town of Front Royal as the only on-point case law for the quorum issue in the suit.

In Jakabcin, the state Supreme Court ruled that a rezoning decision by Front Royal’s town council was invalid because only three of the council’s six members were present to vote on a first public hearing for the rezoning. Two of the absent members disqualified themselves in writing from considering the rezoning issue and one member recused himself in writing without specific reason.

Only three members of the Front Royal council were present for the next meeting, where the first public hearing was held, according to the Supreme Court case summary. Even though four members of council were present for the second public hearing, the court ruled that a lack of a quorum at the first two meetings made the final rezoning vote invalid.

Kolb said the 2010 attorney general opinion did not cite any case law, adding that Kilgore should find that a Pound Town Council quorum should be three of five seats, according to the town charter.

Bell said a three-person quorum means one person could dictate what happens on the council.

“But that person can’t take any action,” said Kilgore.

“What the town of Pound needs is to move forward,” Bell said. “The legal, but most practical way, is to let Mr. Pelfrey’s appointment stand.”

Kilgore said there was a reasonable likelihood that the suit might succeed on the quorum issue, and asked Bell and Kolb about evidence discovery before a final hearing on the suit.

Kolb asked for 30 days, citing a lack of council meeting minutes in recent months.

Kilgore ordered a preliminary injunction that council could not take action with fewer than three “duly elected members,” blocking Pelfrey from participating as a council member until a Nov.16 hearing on what defines a quorum.

“I feel like it was the right decision at this point until the issue is resolved,” Kennedy said after the hearing.

Kolb said he will file an amended suit including calls for blocking any council action without the presence of Cantrell, Cauthorne, Stanley and Carson “until the membership makeup of the Council is legitimately changed and until a chairperson is elected by Council.”

Fourth District Delegate Will Wampler III on Friday clarified a Thursday statement on any General Assembly action on the town charter in the wake of a September Wise County Board of Supervisors resolution asking the legislature to consider revoking that document.

Wampler said the General Assembly can become involved under Virginia Code section 15.2-3712 only after the town and county come to an agreement on assuming town debts, property and records. After that, the council and a referendum of town voters would have to approve the annulment.

The annulment request would then be entered by a circuit court judge and submitted to the secretary of the commonwealth, Wampler said, and the town would have to submit the request to the General Assembly for action.

Wampler said he would only introduce action after the council completed the state code process and requested annulment.

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