Virginia Beach mayoral candidate challenges eligibility of 2 opponents, including Mayor Dyer

VIRGINIA BEACH — A perennial mayoral candidate contends two opponents are not eligible to run because of a technical requirement and has filed a lawsuit seeking their removal from the ballot before the November election.

Virginia Beach residents Richard “R.K.” Kowalewitch and Donald Edwards petitioned the Supreme Court of Virginia to force the Virginia Beach Voter Registrar and Electoral Board to remove Mayor Bobby Dyer and Councilwoman Sabrina Wooten from the ballot.

They claim Dyer and Wooten violated the city charter by not tendering their resignations, effective Dec. 31, before qualifying for the ballot. The plaintiffs contend that the registrar and the board placed “ineligible and unqualified” candidates on the ballot.

“They have to put the resignation letter in,” Kowalewitch said by phone Wednesday. “It wasn’t done.”

Dyer’s term as mayor expires Dec. 31. Wooten represents District 7; her term also expires Dec. 31.

Virginia Beach’s charter states: “In the event any councilman, including the mayor, shall decide during his term of office to be a candidate for mayor, he shall tender his resignation as a councilman not less than ten days prior to the date for the filing of petitions as required by general law. Such resignation shall be effective on December 31, shall constitute the councilman’s intention to run for mayor, shall require no formal acceptance by the remaining councilmen and shall be final and irrevocable when tendered.”

Kowalewitch contends resignation letters would have needed to be filed by June 18.

Wooten submitted a resignation letter, effective Dec. 31, to City Clerk Amanda Barnes on Aug. 27. Wooten declined to comment about the lawsuit when reached by phone Wednesday.

Dyer has not submitted his resignation letter, according to Barnes. The mayor also declined to comment.

Another mayoral candidate, council member Chris Taylor, provided a resignation letter, also effective Dec. 31, to the city clerk May 30. Taylor is in the middle of his four-year term as the District 8 representative.

The fifth mayoral candidate, former Councilman John Moss, doesn’t currently hold office. The upcoming election will be Kowalewitch’s fourth run for mayor.

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Kowalewitch and Edwards are seeking a writ of mandamus from the court, which is a judicial order that requires a government official to comply with the law. The petition names Virginia Beach Voter Registrar Christine Lewis and the city’s Electoral Board: chairman Jeffrey Marks, vice chair Nanette Miller,  and secretary Lauralee Grim. Lewis declined to comment on the lawsuit. Marks, on behalf of the board, also declined to comment.

The legal action was filed ahead of the start of early voting, which begins Sept. 20. It references a recent opinion by the Virginia attorney general on a election matter unfolding in neighboring Chesapeake, though the issue at hand there appears unique to the city’s charter.

Chesapeake City Council filed a lawsuit against sitting member Don Carey in a dispute over whether he should have resigned — in this case, officially stepped down from his current seat — in his bid for mayor.

The Chesapeake city charter calls for a resignation by June 30, six months before Carey’s term ends. But it was established when Chesapeake held elections in May.

General Assembly action in 2021 shifted the city’s elections to November, but the accompanying provision for resignation was not altered, according to an opinion issued in May by Virginia Attorney General Jason Miyares. His opinion concluded that Carey was required to step down by June 30.

In contrast to Chesapeake, the Virginia Beach charter states that the resignation to run for mayor must be made 10 days prior to the deadline for filing a petition to run, which occurs in June. But it is effective Dec. 31.

Kowalewitch says Miyares’ opinion proves candidate eligibility requirements in a municipal charter must be upheld.

“There’s a value in that,” said Kowalewitch.

He cited another part of the city charter which states that the term of office for each council member continues until his successor has been duly elected and qualified. Kowalewitch worries if Dyer and Wooten didn’t follow the proper resignation procedure, they could stay in office beyond their term should a problem arise with the election of their successor.

Kowalewitch and Edwards previously filed a federal lawsuit contending that the city illegally changed its voting system prior to the 2022 election. The lawsuit was dismissed. A separate state lawsuit challenging the city’s district voting system was allowed to proceed in circuit court .

When the resign to run issue arose in Chesapeake, The Virginian-Pilot asked Virginia Beach City Attorney Mark Stiles if Dyer and Wooten each was required to submit a letter of resignation.

“No,” Stiles wrote back in an email on Aug. 6. “The resign to run provision states that the effective date of the resignation is December 31. Because their terms end on that date anyway, there is nothing for them to resign from.”

On Aug. 12, The Pilot asked Stiles to provide more context as to why Dyer and Wooten were not required to submit a resignation letter.

“Because their terms naturally expire, there is nothing for them to resign from and there is no need for a special election to fill the balance of their terms,” Stiles wrote.

On Wednesday, Stiles said he would not comment on the lawsuit because the city’s not a party in it.

Stacy Parker, 757-222-5125, stacy.parker@pilotonline.com