RPV in Crisis: Due process and rule of law ignored in removal of 5th CD Chair Jon Berkley

By Lynn R. Mitchell

Last weekend’s Republican Party of Virginia State Central Committee meeting may have set a dangerous precedent for the future of the party by ignoring the rule of law and due process. New RPV Chairman John Whitbeck had just finished giving a speech calling for unity and then moved on to preside over the removal of 5th Congressional District Chairman Jon Berkley despite being advised that Mr. Berkley had properly fulfilled his duties as district chair and that the procedure to remove him was illegal.

This case should not have even been on SCC’s agenda last weekend because the bylaws that govern RPV, known as the State Party Plan, clearly state an appeal should have first gone to the 5th Congressional District Committee, not to State Central Committee (State Party Plan, Article X, Section B3).

Bypassing that crucial step, the original motion that was first presented to SCC was to remove Mr. Berkley from his position as District Chairman. However, First Vice Chairman Mike Thomas objected to the motion, noting that it violated the Articles of Incorporation and pointing out to members and Mr. Whitbeck that RPV’s Articles of Incorporation define the Directors of the Corporation (Republican Party of Virginia, Inc.) as the State Chair and Congressional District Chairmen. Once seated, a Director can only be removed through the official removal process outlined in the Party Plan (Article VII, Section C) which requires notification that the removal is being sought, a copy of the written charges presented with no less than one-third of the members’ signatures, and allowing thirty days for the person involved to appear and defend himself. It then takes a vote of two-thirds to remove. None of those criteria were met.

Of importance is that Mr. Berkley had not violated his duties as District Chairman but, even if he had, due process was not followed. Attempting to remove him by any other means is a clear violation of the Articles of Incorporation. Instead of official charges, an email with a list of “grievances” was sent out by Russ Moulton who is not a member of State Central nor in party leadership (see Doom for Virginia Republicans).

Because the original motion was out of order, Mr. Thomas called point of order which was never ruled on. RPV General Counsel Pat McSweeney spoke to the point of order, saying that he wasn’t sure, hadn’t had time to look into it, and cited a Supreme Court case about Freedom of Association and State laws interfering with political parties.

Mr. McSweeney, however, did not pursue the position that Mr. Thomas pointed out stating that the Commonwealth of Virginia had not forced RPV to incorporate. RPV freely chose to incorporate because the law provides certain protections for Directors and Officers of corporations (such as lawsuits) and, by providing those protections, RPV agreed to abide by the laws governing corporations in Virginia. There was no infringement on constitutional rights.

Therefore, upon hearing they could not use that route as a means to remove Mr. Berkley, the motion was then amended to say they were not removing him but were, instead, voting to declare that he was non-functioning in his position as chair which would require only a majority vote, not the two-thirds under the removal section of the Party Plan. So they were still planning to remove him, just playing a shell game to achieve it (see RPV in Crisis: How is a chairman ‘non-functioning’ when he raises $10,000 for a bankrupt unit?). To argue semantics, however, does not hold up legally.

Mr. Whitbeck announced it would be a secret vote and, when asked by a member of the body why it was secret, responded, “Just because.” He then said he wanted to make sure everyone understood that a yes vote was a vote to remove but not really to remove but for non-functioning,  according to a source in the room.

The vote was 46-29, falling four votes short of the two-thirds that would have been needed if it had been a legal process. Irregardless, victory was declared and Mr. Berkley was out as chair. In keeping with the decorum of it all, someone let out a cheer in the back of the room. A new chair will now be appointed by Mr. Whitbeck until a replacement is voted in at the next 5th District meeting.

Saturday’s vote was a clear disregard for the Party Plan. Forty-six State Central Committee members knowingly voted against the rule of law even after it was pointed out to them and, therefore, set a precedent for the removal at will of political opposition. Who will be next?  What occurred Saturday demonstrates why due process is so important to protect the rights of individuals.

Jon Berkley did not get due process. In the nine tumultuous months while he was chairman, a time during which he was continually challenged and undermined, he worked to build a District that had only $45 in its bank account and over $800 in outstanding bills, raising it up to $10,000. He noted on Facebook that his District also gave Congressman Robert Hurt over 60 percent of the vote for the first time ever, and had more polls manned than any District in the state for the November 2014 election. For that and more he was declared non-functional and removed.

There were 29 members of State Central who actually understood the Party Plan and voted against the illegal removal. The will of the people in the 5th District was overruled by the other 46 SCC members. Jon Berkley had received overwhelming support from leadership and grassroots (see Ousted Chair Jon Berkley’s overwhelming support from 5th Congressional District leadership).

Saturday’s meeting had presented the new chairman John Whitbeck with an opportunity to show he would be fair and follow the rules of the State Party Plan. Unfortunately, this action has now set the tone for his chairmanship.

After the vote, College Republican Chairman Liz Minneman (UVa Class of 2014) lamented the day’s proceedings:

I’m sad that my last vote on the Republican Party of Virginia State Central Committee had to be against the impeachment of my friend Jon Berkley. Numerous people who complimented me on my speech calling for party unity today were the same individuals who have spent countless hours scheming to destroy members of our own party. I am so proud of College Republicans across Virginia who have donated thousands of hours to helping our candidates this fall. My biggest hope upon leaving office is that more members of our party will join in our efforts to fight the Democrats—not each other. ‪#‎Unity‬ ‪#‎BigTentParty‬ ‪#‎WinElections‬

Young Republican Peter Finocchio also took to Facebook Saturday with profound comments about the proceedings that had taken place:

I am extremely disappointed by today’s decision of the Republican Party of Virginia’s State Central Committee to remove my friend Jon Berkley from his elected position as Chairman of the Fifth District Republican Committee. I had hoped that after a unanimous RPV Chairman election and the many calls for party unity by leaders like my good friends Elizabeth Minneman and Kasha Nielsen, cooler heads would prevail at today’s meeting. The removal of Jon by a secret ballot vote is divisive, it is illegal, and it is wrong. It overturns the decision of the fifth district’s Republican voters who elected Jon to serve and is another example of continuing disconnect between our state party and its local committees. If we will continue to treat each other worse than we treat our Democratic opponents, and without the respect that even our most distant opponents merit, then we will not be able to make the most of our recent successes and we will slump back into defeat at the polls. I hope that Jon will continue to be a vocal and a welcome leader in our party, and that we can undo the damage done by today’s vote.

Lynchburg Republican Committee Chairman Zach Martin’s Facebook post asked a question:

… did SCC follow the proper procedure with this without the ruling of the 5th District Committee first being appealed to the 5th District Committee? Not taking sides, just asking questions.

Sunday night the man at the center of these actions, Jon Berkley, thanked the many who had reached out to him after Saturday’s debacle in Northern Virginia:

I would like to thank everyone who has called, texted, and emailed me today and last night with words of encouragement. Especially my wife Tiffany Berkley who always has my back. When I decided to run for Chairman of the 5th District Committee I had many things I wanted to get done. With the help of many great volunteers and Chairman we accomplished most of these goals.

We had a group of individuals that did everything possible to stop us from accomplishing these goals. The governing body of RPV, the SCC, has been taken over by an extremist group who are only concerned with power, not winning elections. Since they were elected, we have lost EVERY Statewide Election and RPV is broke.  [emphasis added]

[State Central’s vote to remove me came even] after raising our checking account from $45 with $800 worth of outstanding bills to having over $10,000 in our Checking account, giving Congressman Robert Hurt over 60% of the vote for the first time ever, and having more polls manned than any District in the state.

State Central voted to remove me from office just because the extremists have the numbers on SCC to ignore the Party Plan and do whatever they wish. I have had many people ask what I will do now. Well, to answer that question will take a little time. The only part I’m sure of is I will file a lawsuit against RPV and the SCC. I’m giving serious thought (with a lot of encouragement) to running for the Va. State Senate. Please keep me in your prayers as I have some serious decisions to make. God bless you all, God bless our great state of Va. and God bless America.

For more background on the 5th Congressional District and Campbell County politics, see the article Doom for Virginia Republicans by Bill Wheaton who lives in the 5th District. Mr. Wheaton has also documented the past year’s battles that led to Saturday’s events:

–  Rebuilding the Campbell GOP
– Campbell County 1: What really happened at the 2014 mass meeting?
– Campbell County 2: Refusing to concede a loss
– Campbell County 3: Background on what led to appeal to be heard Saturday
– Campbell County GOP appeals results
– Campbell County Republicans file lawsuit against RPV and former GOP chairman