BREAKING: Recall effort against school board member Elaine Tholen dismissed in court

(Updated at 4:05 p.m.) A Fairfax County Circuit Court judge dismissed a case today (Friday) that sought to recall Dranesville District School Board Representative Elaine Tholen.

Tholen’s legal team had argued against letting the case continue in court, which came after a parents’ group called Open FCPS Coalition collected and submitted over 5,000 signatures to protest school closures during the pandemic.

“Citizens who disagree with elected officials’ policy choices should vote for someone else in the next election, not ask courts to yank them from office,” Tholen’s legal team previously argued in seeking to dismiss the case.

The group, which has received funding in part from a former Republican gubernatorial candidate and a nonprofit committed to with center-right policy advocacy, voiced opposition to how the school board handled the closures. A petition submitted to court argued that keeping schools closed hurt children with disabilities the most.

The legal team for Tholen, who represents Dranesville District, argued in part that the lawsuit contained “no allegations that comes close to showing that Tholen acted with ‘wilful,’ ‘evil’ or ‘corrupt’ intent.”

“We are very pleased that the Court dismissed this case and saw it for what it was – an attempt by a small number of people to substitute their judgment for that of the full elected School Board,” a Fairfax County School Board spokesperson said in a statement. “We look forward to a full, five-day schedule of in-person classes starting next week.”

Democrats weighed in on the matter Friday.

“Republican operatives are leading these so-called ‘bi-partisan’ groups seeking to overturn the democratic election of our officials,” Fairfax County Democratic Committee Chair Bryan Graham said in a statement Friday afternoon. “The pandemic has caused a difficult situation for all of us, and our school board has done a tremendous job balancing the need to keep our community safe while serving the education needs of our students” and more.

Del. Marcus Simon, a Democrat whose office covers part of Fairfax County, called the dismissal a signal that recall efforts are a waste of time and resources. He said on Twitter that the “statute is being misused to frivolously harass elected officials by a small minority” of constituents.

Open FCPS Coalition had also been collecting signatures to recall two other school board members, Member-at-Large Abrar Omeish and Springfield District Representative Laura Jane Cohen. The group previously said those members were chosen because those representatives gathered the least amount of votes, which lowered the amount of signatures needed to file recall efforts.

When it submitted the petition for Tholen on July 19, Open FCPS Coalition said only one school board member, Megan McLaughlin, advocated for reopening in a way that it felt was consistent and a priority.

The petition required that a special prosecutor to handle the case. Commonwealth’s Attorney James Hingeley of Albemarle County was appointed to that role on Aug. 10.

“[Hingeley] concluded that he could not prosecute the recall petition because it did not have a sufficient basis to move forward,” the school district said in a statement. “So, he moved to dismiss the petition and the judge granted the motion to dismiss.”

In a statement, Open FCPS derided Hingeley’s decision to request a dismissal as evidence of politics being put ahead of children’s well-being.

“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,” Open FCPS Coalition founder Dee O’Neal said. “Hingeley chose special interests over parents and children who deserved representation.”

In a statement, Tholen called the legal case “an ordeal” but said she was glad she could now focus her attention on the students who will return for five days a week of in-person learning on Monday (Aug. 23).

“I am excited to say, we have over 180,000 students starting school next week. Those students need our full attention to keep them safe and to give them the best education possible,” she said. “They are still suffering in a pandemic, just like the rest of us. Please, let us put these divisive events behind us and work together to give our students the positive, undivided attention they deserve.”

Fairfax County Public Schools has implemented a universal masking rule and announced earlier today that staff will be required to be vaccinated by late October.

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