Richmond County attorney says without full-timer, he won’t prosecute misdemeanors

Posted on Tuesday, November 13, 2012 at 4:41 pm

The fight between the top legal official in the county and local representatives took an unexpected turn last week, revealing potentially devastating and far-reaching effects.

Wayne Emery

Commonwealth’s Attorney Wayne Emery has pleaded for a clerical position in his office that's currently in dispute.

During a Nov. 8 Richmond County Supervisors meeting, members brought up the ongoing issue regarding the funding of a full-time staffer at Commonwealth’s Attorney Wayne Emery’s office.

The position, which was created in 2004 and has been full-time since 2008, was recently vacated after the employee could no longer work due to an ongoing medical condition.

Two months ago, Emery was approved to seek a part-time replacement with the intention of the job reverting to full- time in January.

And although the position was filled, during last month’s board meeting District 3 Supervisor John Haynes revisited the issue, citing criteria from the commonwealth’s compensation board that he interpreted as showing the lack of need for the staffer, a stance he reiterated last week.

Quoting the document, Haynes said that of the 120 offices, Richmond County is ranked 112th in terms of immediate need.

“So relative to available funds, we are pretty low priority as far as the state’s viewpoint,” Haynes said. “I would say that our funds are even more limited than theirs. That’s not necessarily a matter of that we don’t want to fund this position or think that it’s not worthwhile, but the state – who has many more funds than we do – says that they cannot afford this, so I really can’t see how on our scarce resources we can afford it.”

What Haynes did not mention was that the same document also supported Emery’s request for an assistant commonwealth’s attorney, saying that a full-time and part-time position were overdue.

Additionally, of all four counties on the Northern Neck, Emery’s is the least staffed, with Westmoreland, Lancaster and Northumberland each having assistant attorneys as well as support staff.

Although improper notification precluded Emery from attending the October meeting, last week the feisty attorney was prepared with two important documents refuting Haynes’s proposal.

First, Emery produced an unsolicited letter from Michael Doucette, the president of the Virginia Association of Commonwealth’s Attorneys, who became concerned about the situation after reading a recent article in the Northern Neck News.

“While I applaud [Haynes’] efforts to glean more information before making any decision, he is using the staffing standards in a way which was not intended,” Doucette said, going on to note that while the document is a guideline for the state to allocate limited funds, it considers only the time commonwealth’s attorneys spend in Circuit Court, and not General District (GD) and Juvenile and Domestic Relations (JDR) courts.

“We meet and serve far more of our citizens in our district courts than we do in circuit court and gather far more revenue for the state and locality in our district courts than we do in circuit court… and yet we are not funded by the state to provide any of that… representation,” Doucette said, adding that staffing is dependent on each county’s specific needs and not the document to which Haynes was referring.

However, it was Emery’s own letter, pleading his case and outlining the need for the full time staffer, which contained a dire and shocking warning.

According to Emery, should the position be cut, his only option might be to discontinue prosecuting misdemeanors, which currently take a large amount of time, require incredible amounts of documentation and consume a lot of his employees’ time.

It was a proposal that caused District 4 Supervisor Courtney Sisson to become very concerned.

“I garnered from [Emery’s] letter that according to statutes, he does not have to prosecute misdemeanors,” Sisson said, which Emery acknowledged as correct.

“You have work that is being done by arresting officers, presumably making arrests for misdemeanors,” Sisson said. “So if you have additional officers who are making such arrests it is really a waste of time if you are unable or unwilling to prosecute such matters.”

Emery agreed, adding that the burden of prosecuting misdemeanor cases such as DUIs, reckless driving and traffic violations could possibly fall to the Sheriff’s office or be relegated to lengthy trials where the presiding judge is left to muddle through the evidence.

“The commonwealth’s office has constitutional obligations and statutory obligations that have to be performed,” Emery said. “Those have to take precedence over everything else that has to be done. It is fairly clear to me that without staffing the way we had…we are not going to be able to do everything that we have been doing.”

After learning that the discontinuation of his role as county attorney did not reflect less work for his employees, District 2 Supervisor Jean Harper asked if Emery would consider a 30-hour employee or lowering that salary to accommodate a full-time position.

“I need the help, I need all the help that you will provide for me,” Emery said. “I can’t say that I wouldn’t consider 30 hours a week, but I believe you are doing a disservice to the community to do that.”

However, Haynes, who reprimanded Emery for interrupting him during the meeting, was not satisfied with Harper’s proposal, marking the continuation of a personal feud that began earlier this year.

In June, Emery resigned as county attorney, saying that the divide between Haynes and himself began after he declined to “bend to [Haynes’] demand,” that he render an opinion as commonwealth’s attorney as to whether those supervisors who voted yes on last year’s school issue had violated the commonwealth’s conflict of interest statute.

Pursuant to Emery’s denial, Haynes announced in an email that he planned on asking for Emery’s removal as county attorney, a move Emery saw as “contrived.”

Instead, Emery vacated the office, saying that the political environment, including Haynes’s “toxic approach to the current problems” precluded him from successfully doing his job.

During last week’s meeting, Haynes said he is more concerned with funding the sheriff’s office and questioned if Emery’s workload even justified the position in question.

“We have gone from no position in 2004 to a full-time position in 2008. During those periods we were better off financially,” Haynes said, adding that he would not approve a position of more than 20 hours.

Emery instantly contradicted Haynes, noting that his caseload has increased exponentially during that timeframe, saying that with the addition of each deputy comes an increase in arrests and workload for his office.

According to Emery, another factor that was particularly concerning was the growing population and the increased burden that growth placed upon all areas of law enforcement.

“I understand where you are in terms of dollars, but you have to recognize that the community and the commonwealth are not capable of doing everything that it has done without the staffing that is necessary to do it,” Emery said. “What it is that suffers, I don’t know at this point.”

Haynes disagreed, saying that every department that comes before the board with funding requests always thinks they are the “most important” but do not have the answer for where to make cuts to facilitate the financing.

“Crime is always a consideration,” Haynes said. “I don’t perceive that our county right now has a very severe crime problem.”

However, last week  local law enforcement announced that a major sting operation had resulted in 45 grand jury indictments across the region related to illegal narcotics. Two years ago Richmond County uncovered one of the largest marijuana growing operations in the history of the commonwealth.

Additionally, crimes that used to be confined to more urban areas have been encroaching into the Northern Neck, with arrests for drugs, illegal firearm possession and violent felonies on the rise, according to arrest records.

Citing economics, Haynes said while he sympathized with Emery’s plight, he felt that the county’s spending “is out of control” and that a part-time person was the best he could in good conscience approve.

“You might also want to talk economics with the judges too. See [what] they feel if this office had to consider whether it would have to cut back on its participation in misdemeanors,” Emery said.

Although Haynes was ready to vote on the matter, District 1 Supervisor Richard Thomas asked that the conversation be continued until next month so as to allow all supervisors the chance to investigate the matter in greater detail.

“If you all have questions, write me or call me and I will try the best I can to answer them and if you all need me to come back, I’d certainly do that,” Emery said


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