CUMBERLAND – A petition filed in circuit court requesting the removal of Cumberland Board of Supervisor Parker Wheeler, District Five, from his elected office is being dropped.

Robert Beasley, Powhatan County Commonwealth's Attorney, the special prosecutor appointed to the case, told The Herald Thursday that he has filed a motion for nonsuit. The motion asks for the dismissal of the suit against Wheeler without prejudice.

Beasley explained that he had looked through the materials associated with the case – the complaint filed by the citizens and the documents filed with that complaint – and did some of his own investigating.

“Having done that, I did not see anything that justified thwarting the will of the people as that will was expressed in the previous election,” Beasley said.

Coy C. Leatherwood, a citizen of the fifth district, filed the case last March after accusing Wheeler of having unpaid taxes, based on the existence of a federal tax lien filed against Wheeler in Prince Edward Circuit Court.

Although the board's Standards of Conduct states that all board members shall, “pay all taxes due to the County, State, or National Government,” the board itself cannot remove one of its members.

Wheeler has since announced that while there is currently a lien against him, he no longer owes the full amount to the IRS. He reported to The Herald that he reached a settlement with the IRS this January.

“I am not trying to avoid taxes. I am paying my taxes,” Wheeler stated during a March meeting of the Cumberland Board of Supervisors.

Leatherwood announced earlier this month that he desired to now drop the suit, because it was weak and Wheeler was sure to win, potentially having the County pay his attorney fees. But only the prosecuting attorney could request the case be dismissed.

Now, Beasley, recently appointed as special prosecuting attorney to represent the citizens of the fifth district and the commonwealth, is making Leatherwood's desire a reality.

When Beasley talks about the case, he starts with the fact that America is a democratic republic.

“We elect people from among us to govern us. And, if you believe in that system, then you believe that the election of someone is a mighty important and pivotal event in self-government…” Beasley told The Herald.

“Any action that you take, you have to be aware that you are, in essence, thwarting the desires of the people as reflected in the previous election,” Beasley said while discussing the complaint.

He concedes, “it may be that the people have changed their mind, but we're not holding a recall election to determine that. That's not what Virginia does.”

Action under Virginia statue, such as the petition filed against Wheeler, “is, by definition, thwarting to the will of the people to some extent,” says Beasley.

Wheeler was the only fifth district candidate named on the November 2011 ballot. He was elected as supervisor with 71.7 percent of the 425 votes that were cast. His seat will come up for election in two years.

The electorate has to petition for the removal of an elected official, such as a supervisor, according to Virginia Code. Ten percent of the total number of votes cast in the last election for the office, which the elected official in question now holds, must sign a petition and file it with the Circuit Clerk.

The petition filed against Wheeler almost three months ago included the signatures of 73 registered voters of the fifth district, all of which were verified by the Registrar's Office.

If it had not been dropped, the case could have potentially come before a circuit court judge.

The court can remove an elected official for “neglect of duty, misuse of office, or incompetence” when it is determined to have a “material adverse effect” upon the conduct of the supervisor's office, according to Virginia Code Section 24.2-233.

Beasley points out that this type of case is awkward and uncommon. It is awkward procedurally because it is a civil action that is quasi-criminal in nature, with its own set of special rules, he says.

It's a creation of statute, Beasley points out, and there are only a few cases to give guidance.

Because the motion to drop the case is without prejudice, it could be brought back to the court, but Beasley says he doesn't think it will be.

“I don't envision bringing anything back…Based upon what I've seen there's nothing that, to me, would justify thwarting the will of the people,” Beasley told The Herald.

When contacted by The Herald, Wheeler stated he did not yet have any comment.

The judge still has to sign the motion, but Beasely does not expect that to be an issue. Beasley says he can file one nonsuit in a case and the judge, more or less, has to sign off on it.