Point Pleasant wrongful termination suit amended

By Lawrence Smith | Sep 23, 2008

POINT PLEASANT – Two plaintiffs have been added to a civil suit in Mason County that alleges wrongful termination.

On Sept. 5, the case of Harriett Nibert v. the City of Point Pleasant and Marilyn McDaniel, was formally amended to include Heather Moore and Brook Kapp. Like Nibert, Moore and Kapp allege their employment with the city was terminated for political reasons.

According to the complaint and suit, "Plaintiffs and several other City employees who were associated with the previous Democratic administration were terminated simultaneously upon the ascension of Mayor McDaniel and the Republican majority on Point Pleasant City Council to their positions."

Though the suit does not say if Moore and Kapp, like Nibert, was a registered Democrat whose replacement was a registered Republican, it does say all three "did not occupy policy making or confidential positions."

In the May 2007 municipal election, McDaniel defeated incumbent Mayor James Wilson for re-election. Four years earlier, the pair faced-off with Wilson, then councilman for the city's 7th Ward, defeating McDaniel, then city recorder, by 13 votes.

Also in last year's election, the Republicans were successful in not only holding three council seats, but also gaining six additional seats on the 10-member council. The lone Democrat, Dr. William Park, ran unopposed.

Because voters approved a change to the city charter to coincide the next municipal election with the state primary election in 2012, both the mayor and council were elected to a one time 5-year term.
According to court records, Kapp was hired in April 2005 as manager for the city's water office. A month later, Moore was hired as finance/human resources director.

Within a day of each other, both Moore and Kapp received notices on June 28 and 29, respectfully, their positions were being eliminated. This action, records show, was done by the city council and to take effect July 1, 2007.

Likewise, the suit alleges Nibert received notice on June 29 saying her position was eliminated July 1 by council. However, she "was immediately replaced by Louise Hudson…a Republican."

Along with other reasons why they believe their termination was conducted improperly, Kapp, Moore and Nibert allege the council made its decision in violation of the state Open Governmental Proceedings Act. The council, along with McDaniel, was sworn-in on June 30, and conducted its first official meeting on July 9.

As damages Kapp, Moore and Nibert are seeking compensation for lost wages and mental and emotional distress. Also, they are asking "punitive damages, reinstatement and other such other further relief as my upon the premises be appropriate."

Records show on Sept. 5, Wood Circuit Judge Jeffrey B. Reed entered a scheduling order in the case that included an Aug. 11, 2009 trial date. Shortly after the case was filed, the state Supreme Court appointed Reed when both Mason Circuit judges David W. Nibert and Thomas C. Evans III recused themselves.

David Nibert is Harriett's husband.

In addition to Walt Auvil, with the Parkersburg law firm of Rusen and Auvil, West Virginia Uuniversity College of Law Professor Robert Bastress represents Kapp, Moore and Nibert.

Mason Circuit Court, Case No. 08-C-489

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