Commonwealth reverses its trial position, arguing that “may” means “shall” and that removal is mandatory once the jury’s findings are made

PURCELLVILLE, Va. — The special prosecutor in the removal case against Town Council member Carl Benjamin “Ben” Nett has asked the Loudoun County Circuit Court to set aside part of the jury’s verdict and enter a judgment removing Nett from office, arguing that state law leaves the court no discretion once the grounds for removal have been proven.

The “Motion to Vacate or Set Aside the Verdict and to Remove Benjamin Nett From Office” was filed by Eric L. Olsen, Attorney for the Commonwealth and special prosecutor, in Qualified Voters of Purcellville v. Carl Benjamin Nett (Case No. CL25-2775). A certificate of delivery indicates the motion was sent to Nett’s counsel, Jennifer McGovern, by electronic mail on May 21, 2026, and the court file bears a stamp dated May 29.

At the center of the motion is a single word: “may.”

A Reversal of Position

According to the filing, the court raised the issue on its own during trial — sua sponte, in legal terms — questioning whether the removal statute makes removal mandatory or discretionary. Virginia Code § 24.2-233 states that “[u]pon petition, a circuit court may remove from office any elected officer or officer.”

The motion acknowledges that, at trial, the Commonwealth did not object to the court’s view that the word “may” rendered removal permissive, and “in fact, agreed that the language of the statute supported the Court’s position.” Olsen wrote that he lacked the time and resources during the “lengthy and complex jury trial” to fully research what he described as an issue of first impression.

After further review, the Commonwealth now takes the opposite position: that when the statutory grounds for removal are established by clear and convincing evidence, “removal from office is required” and is not left to the court’s discretion.

What the Jury Found

The motion recounts that the jury was instructed on the elements required under § 24.2-233(1) and, applying a clear-and-convincing-evidence standard, returned findings that:

• Nett violated Virginia’s Conflict of Interest Act;

• Nett failed to follow the Policies and Procedures of the Town of Purcellville;

• both instances constituted neglect, misuse or incompetence; and

• both had a material adverse effect upon the conduct of his office.

The Commonwealth argues that the statute requires proof of two distinct elements — that an official engaged in prohibited conduct, and that the conduct materially and adversely affected the office. Because both elements were found, the motion contends, “there is nothing left to decide.”

“May” Means “Shall”

Much of the 9-page filing is devoted to a survey of Virginia case law on statutory construction. Olsen argues that just as courts have sometimes read “shall” as directory rather than mandatory, they have likewise construed “may” as mandatory “when it is necessary to accomplish the manifest purpose of the Legislature.”

The motion cites the Supreme Court of Virginia’s decisions in C. & O. Ry. Co. v. Pulliam (1947), which reversed a civil verdict over a jury instruction using “may,” and Martin v. Howard (2007), an exhumation case in which the court held that “may” vested authority without granting discretion to deny. It also references Hood v. Commonwealth, Commonwealth v. Malbon, Caputo v. Holt, Harper v. Virginia Department of Taxation and Rickman v. Commonwealth.

Olsen further points to Virginia Code § 24.2-235(E), the removal procedure statute, which provides that if a trial establishes by clear and convincing evidence that removal is warranted, “the officer shall be removed from office.” The motion argues that removal functions as a “punishment” that follows the jury’s factual findings, and that, because burden of proof applies to facts rather than to punishment, the decision to remove is not a question left to the jury.

What the Commonwealth Is Asking For

The motion asks the court to vacate or set aside the portion of the verdict form the Commonwealth says erroneously treated removal as a discretionary jury determination, and to remove Nett from office based on the jury’s findings. “The word ‘may’ which appears in § 24.2-233 is not permissive, it means ‘shall,’” the filing concludes.

The motion represents the Commonwealth’s argument and has not been ruled on. Nett, through counsel, is due to file a response on June 12, and Olsen will then have until June 22 to reply to that filing. The court is scheduled to take up the matter at a hearing at 11 a.m. on June 30.

This is a developing story. Purcellville News will report on any response from the respondent and on the court’s ruling.