A York County man locked in a court case with county officials that has reached the Virginia Supreme Court asked County Administrator James McReynolds and the York County Board of Supervisors to alter County Code pertaining to employee actions.
The request, made via email Aug. 30 by Anthony Bavuso, asks for the county to modify its code to include language that would terminate county employees if a judge found that employee to be acting against the law or if they had exceeded the authority granted to them by the law. He said the current policy does not adequately deal with employees who have been found to have done either of those things by a judge.
His request also asks for a change that would forward matters regarding these two violations to the Commonwealth’s Attorney for the consideration of criminal charges.
The request comes after a lengthy case over oyster farming at two York County residences. Bavuso is the owner of one of the two residences. The York County Board of Zoning Appeals determined Bavuso would need a special-use permit to operate his home oyster farming business, launching a court case over using their land for oyster farming. York-Poquoson Circuit Court Judge Alfred Swersky sided with Bavuso and the other oyster farmer, Greg Garrett.
The case is now before the Virginia Supreme Court, which has yet to set a date to hear arguments. The case deals with whether Bavuso and Garrett are allowed to use their land to facilitate aquaculture — i.e., the offloading of oysters from boats onto the property — rather than whether they are allowed to harvest oysters from waterways, as the county does not have jurisdiction there.
In his email asking for the policy change, Bavuso cites language from Swersky, who ruled that York County Zoning Administrator J. Mark Carter’s interpretation of county code was “arbitrary and capricious” in a move that reversed the rulings of Carter and the Board of Zoning Appeals. Bavuso also cited another part of Swersky’s decision, which says Carter exceeded his authority to interpret the code when Carter made a determination about the principal use of Bavuso’s land in the county.
County officials said Swerksy’s language does not label Carter as being guilty of misconduct. Melanie Economou, the assistant county attorney for York County, said “arbitrary and capricious” is legal terminology the court must find in order to overturn a zoning determination.
“It doesn’t find any misconduct or malicious intent by the employee,” Economou said. She said employees make a good faith effort to interpret policies and that it’s up to the courts to determine whether they interpreted it correctly. Swersky could not overturn the two findings without having made that determination, she said.
McReynolds said the existing policy is written in a manner that allows for incidents like this to be addressed. The policy outlines a number of specific offenses that can result in disciplinary action and goes on to say:
“The preceding is intended only as a guide and disciplinary action is not limited to these offenses. The severity of the discipline will depend on the facts and circumstances of each particular issue.”
McReynolds said the county periodically reviews personnel policies and procedures, and all input from citizens will be considered during that process. He said that will happen within the next three to four months.
Related Coverage:
- Virginia Supreme Court Agrees to Hear York Oyster Farming Case
- York County Files Petition with Virginia Supreme Court Over Residential Oyster Farming
- York County to Appeal Rulings in Oyster Cases
- Judge Rules in Favor of York Oyster Farmers
- Circuit Court Hears Garrett Oyster Case
- Judge Delays Ruling in Bavuso Oyster Case
- Circuit Court to Decide Oyster Cases This Week
