BERRYVILLE — A special prosecutor will urge Clarke General District Court to drop seven malfeasance charges lodged against Berryville Town Council Recorder Harry Lee “Jay” Arnold Jr. in connection with a recent investigation in which the Virginia State Police were involved.
Winchester Commonwealth’s Attorney Marc Abrams said he believes Arnold has committed no wrongdoing based on evidence he has seen since the misdemeanor charges were issued within the past week.
The Winchester Star on Thursday was unable to obtain copies of criminal complaints in the case. Information on Virginia’s online judiciary information system showed the charges stem from incidents that allegedly occurred between Jan. 1, 2018, and Sept. 25, 2019. It indicated the charges stem from alleged violations of state code Section 2.2-3122, which reads, “Any person who knowingly violates any of the provisions of this chapter shall be guilty of malfeasance in office or employment. Upon conviction thereof, the judge or jury trying the case, in addition to any other fine or penalty provided by law, may order the forfeiture of such office or employment.”
The section is part of code Chapter 31, which deals with the State and Local Government Conflicts of Interest Act, and Article 3, which outlines prohibited conduct related to contracts.
A court hearing on the charges currently is slated for Dec. 5, the online records system shows.
Clarke County Commonwealth’s Attorney Anne Williams said that due to conflict of interest concerns, she believed she should not be involved in the investigation because she provided Arnold a legal opinion a couple of years ago related to his firm, Berryville Auto Parts, doing business with the town. That resulted in Abrams being appointed as special prosecutor in the current case.
According to information provided by Abrams and Arnold’s attorney, Suni Mackall, the case concerns repairs and maintenance work performed by Berryville Auto Parts on vehicles belonging to the town.
State code Section 2.2-3107 generally prohibits an elected or appointed member of a local governing body from having a personal interest in a contract in which the local government is involved, unless the body has demonstrated a need for a product or service that the member can provide, and it has gone through a competitive sealed bidding process.
Yet Section 2.2-3110 provides exceptions. One is when a contract involves the governing body of a locality having a population of less than 10,000 — Berryville’s is about 4,000 — and it does not exceed $5,000 annually, or it is less than $25,000 when a sealed bidding process is used.
Furthermore, code Section 2.2-3121 states that a government official cannot be prosecuted for an alleged violation of the chapter if it “resulted from his good faith reliance on a written opinion of the attorney for the Commonwealth.”
In the investigation, Abrams said, the state police did not see anything in town records indicating that Berryville Auto Parts’ involvement with the care of town-owned vehicles resulted from a sealed bidding process, which contributed to the charges being filed.
Mackall said she met with Abrams and Doug White, an assistant commonwealth’s attorney for Winchester, on Wednesday and provided them “information they did not have” during the investigation showing that a contract stemming from a sealed bidding process was awarded and Arnold has “been very transparent (in his dealings with the town) and tried to do everything right.”
“Upon review of the evidence,” Abrams said, “it seems he was above-board ... (and) we are going to move to have the charges dropped.”
“The special prosecutor appointed to this case (has) declined to prosecute,” Sgt. Brent Coffey, regional public information officer for the state police, wrote in an email.
White plans to visit the Clarke General District Court clerk’s office this morning to file the necessary paperwork, Abrams said.
Mackall, a former Clarke County commonwealth’s attorney, described the paperwork as an “order of dismissal.”
“I am optimistic that the charges will be dropped,” she said.
Arnold’s duties as recorder are similar to those of the vice mayor of many towns and cities. He is a voting member of the council and oversees meetings in the mayor’s absence.
He first was elected by voters as recorder in 2006 and has since been re-elected to the office three times. His current four-year term will expire on June 30, 2022.
Arnold declined to comment on the charges. He referred inquiries to Mackall.
“We’re not sure” what led to the charges, Mackall said.
R.D. McClelland is listed in the online court records system as the complainant in each of the cases. McClelland is a Virginia State Police sergeant.
Mackall said a state police officer recently served Arnold with warrants.
However, “Jay didn’t know he was being investigated until they served him with these charges,” said Mackall. “Nobody came and spoke to him” during the investigation.
“If we had all of the information” originally, Abrams said, “we wouldn’t have brought the charges.”
Berryville Town Manager Keith Dalton declined to comment on the charges from the town’s perspective.
Abrams said he understands “various people” in Berryville have expressed concerns about Arnold’s business doing work on town vehicles, but he did not know who contacted the state police.