Last week Fairfax Circuit Judge Richard Gardiner dismissed a petition to remove Elaine Tholen from the Fairfax County School Board, based on the recommendation of the special prosecutor.

Albemarle County Commonwealth Attorney James Hingeley, also a former Charlottesville City School Board member, was selected by Fairfax County Commonwealth Attorney Steve Descano to be special prosecutor on the case. Descano recused himself from the case citing the recall efforts against him that are currently underway. 

Hingeley asked for the case to be dismissed saying “The assertions made [in the petition] are factually incorrect in the Commonwealth’s view.” He also called for the motion to quash, presented by Tholen’s legal team, to be granted. 

Initially the judge also said that with the motion to dismiss he thought that made the motion to quash moot. However, after hearing from Charlie Spies, counsel for Open FCPS Coalition, Gardiner denied the motion to quash, treating it as a demurrer to the petition, which he said he believed on its face. “I’m not considering any of the evidence that Mr. Hingeley’s brought to the Court’s attention because that’s not appropriate for a demurrer.” According to Merriam-Webster, a demurrer is a response in a court proceeding in which the defendant does not dispute the truth of the allegation but claims it is not sufficient grounds to justify legal action.

“I believe that the petition on its face is adequate to allege a neglect of duty by Ms. Tholen and to allege incompetence in the performance of duties,” said the judge. “And under that standard [of the demurrer], I believe that the petition is sufficient to go forward with a full show cause here.” Gardiner also pointed out that the Court was working within the framework that the legislature has given to make determinations on whether or not to remove public officials.

When asked to comment further on the case, Hingeley declined saying, “Under the rules of the Supreme Court of Virginia [Rule 1.1a Expiration of Court’s Jurisdiction], final orders are subject to being modified or vacated for 21 days after the date of entry. It is not my practice to comment on cases in which there may be further proceedings.”

“This legal case has been an ordeal for me, but our students have been struggling through a much greater one,” Tholen said. “Please, let us put these divisive events behind us and work together to give our students the positive, undivided attention they deserve.”   

With other recall efforts in process around Virginia, parents should be encouraged that the petition language for which signatures were gathered was determined in court to be legally sufficient, according to Open FCPS Coalition. Petitions are still being circulated to recall Laura Jane Cohen of the Springfield District and Abrar Omeish, At-Large member.

“We must continue to fight for our students and children, because the School Board has not done so over the past 18 months,” said Dee O’Neal, founder of Open FCPS Coalition. “It is a shame that the voices of thousands of parents have been silenced by a commonwealth’s attorney, who just like the school board, is more interested in politics than the wellbeing of our kids. Hingeley chose special interests over parents and children who deserved representation.”

According to their website, Open FCPS Coalition is a bi-partisan, grassroots, volunteer group of concerned parents and citizens from Fairfax County. The group was formed in late 2020, and its aim is to hold members of the Fairfax County School Board accountable and to keep politics out of schools.

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