ISLE OF WIGHT— The Suffolk Commonwealth Attorney has rejected Isle of Wight Supervisor Byron “Buzz” Bailey’s prayer for summary judgment and costs, including paying for his attorney’s fee.

H. Woodward Crook, who represents Bailey in a petition recall case, filed the motion for this on July 30 in Isle of Wight County Circuit Court.

After recounting details of the issue, including the agreement with the Commonwealth Attorney’s move to file non-suit on July 25, Crook concluded, “Wherefore, defendant prays that he may have summary judgment against plaintiff and his costs expended in this action including reasonable attorney’s fee.”

The matter of taking Bailey out of office developed in the spring after his refusal to resign in spite of several demands from both the public and two fellow board supervisors.

This came following an embarrassment caused when controversial emails were revealed in mid-May. Bailey and Herb DeGroft of the Isle of Wight County School Board had privately circulated emails of crude humor to other board members and county staff. President Barack Obama and Michelle Obama were the subjects of some of those emails.

A little over 300 people signed a petition asking that the supervisor be legally removed from office. The Suffolk Commonwealth Attorney’s office, which took the case because IW CA Wayne Farmer had to recuse himself, ultimately could not find sufficient grounds for Bailey to be taken from his place. The petition for DeGroft also went to non-suit because of a lack of certifiable signatures from Hardy District voters.

Susan Walton, senior assistant Commonwealth Attorney in Suffolk, explained the rejection of Crook’s request in the motion she filed Wednesday.

Walton noted that Virginia Code 23.2-238(A) provides that if such a case is dismissed in favor of the respondent, “the court in its discretion (her emphasis) may require the state agency or political subdivision which the respondent serves to pay court costs or reasonable attorney fees, or both for the respondent.”

She also argued the non-suit was neither a dismissal of the issue nor in Bailey’s favor, and cited cases to back that claim.

Further, Bailey’s case doesn’t merit the Isle of Wight Circuit Court to award expenses and lawyer fees because it’s “discretionary and not mandatory” and also there’s no basis for it.

The Commonwealth Attorney also noted Bailey brought the matter on himself “through his inappropriate and hurtful conduct,” adding that had he resigned, both the issue would have ended and expenses to the Commonwealth and himself would have been much less.

Finally, Walton wrote that to award costs and an attorney’s fee “without legal basis” would insult Isle of Wight taxpayers, put an unfair burden on the residents and would be “rewarding the defendant for his unprofessional and egregious behavior.”

For those reasons, the Commonwealth is asking the court to grant both the non-suit motion and refuse the attorney’s latest motion.

Walton told The Tidewater News on Thursday that should the judge reject the claim for expenses and an attorney’s fee, Bailey and his attorney could appeal.

The hearing is scheduled for 10 a.m. Monday, Aug. 12, in Isle of Wight County Circuit Court.