WEST VIRGINIA RECORD

CLARKSBURG - A lawsuit against West Virginia University Board of Governors by two professors who alleged their reputations were damaged has been dismissed from federal court.

WVU employees Nigel Clark, Marjorie A. McDiarmid, E. Jane Martin, James P. Clements and Michele G. Wheatly were also named as defendants in the suit. On Aug. 22, U.S. District Judge John Preston Bailey, of the Northern District of West Virginia issued a Memorandum Opinion and Order Granting Motions to Dismiss. The court granted each of the three motions to dismiss filed by the defendants.

Drs. Cyril M. Logar and R. Stephen Sears, who were employed by WVU, claimed thedefendants "acted arbitrarily and capriciously and deprived the plaintiffs of 'their constitutionally-protected rights to fundamental fairness,'" according to Bailey's opinion.

"It is important to identify the right which the plaintiffs allege was violated. In this case, the right is the right to have the appropriate University officials take steps to remediate any damage to the plaintiffs' reputations," Bailey wrote.

"This would appear to be a 'right' provided by the AIC policy. It certainly is not a fundamental right, such as relating to marriage, family, procreation and the right to bodily integrity. Accordingly, this Court finds that the plaintiffs have failed to allege, nor can they allege, a violation of substantive due process."

The plaintiffs also claimed they were denied procedural due process when university officials failed to take steps to remediate their reputations as required by the AIC policy.

"In this case, with the issues of proper notice and hearing barred by res judicata, the alleged failure of the University to comply with the AIC policy does not rise to the level of a due process violation... the procedural due process claim will be dismissed," Bailey wrote.

Logar was hired in 1976, was granted tenure in 1982 and became Associate Dean of the College of Business and Economics in 2004. Sears accepted the position as the Puskar Dean of the College of Business and Economics and as a tenured professor and faculty member in 2005, according to a complaint filed May 14.

On Oct. 11, 2007, a regional media outlet contacted WVU for the purpose of inquiring whether Student A had satisfied the requirements to earn an eMBA degree at WVU and four days later, then-University President Michael Garrison’s Chief of Staff Craig Walker called a meeting to review the inquiry about Student A and
whether she had satisfied the requirements to earn an eMBA.

Logar and Sears were required to attend the meeting. Student A is how the lawsuit refers to then-Gov. Joe Manchin’s daughter, Heather Bresch.

Manchin is now a member of the U.S. Senate.

The plaintiffs claimed Alex Macia, the university’s general counsel, advised the attendees at the meeting that potential adverse legal consequences could follow if the university did not award a degree to Student A and acting on this advice, on Oct. 23, 2007, Sears sent a response letter advising the inquiring media outlet that Student A had satisfied the requirements to earn her eMBA degree at WVU.

On May 30, 2008, Garrison submitted a formal letter to McDiarmid requesting an investigation of the “potential academic misconduct committed by Stephen Sears… or any others who might have been involved,” according to the suit.

The plaintiffs claimed in December 2008, McDiarmid sent letters to Logar and Sears, informing them that they were being charged with academic misconduct. The letters also said the Hearing Panel contemplated by the procedures set forth in the Academic Integrity Policy was not even set to convene until April 27, 2009, more than 100 days beyond the 210-day limit set forth in the policy for completion of the investigation, the plaintiffs say. Even on its delayed schedule, the Hearing Panel never convened, the university never presented a case of academic misconduct to a Hearing Panel and no finding of misconduct was made, according to the suit.

The plaintiffs claimed during the course of the investigation, the university leaked several stories to the media publicizing unfavorable views of Sears and Logar from within the university and these leaks – not to mention the years-long duration of the university’s investigation – caused serious harm to the plaintiffs’ reputations.

Despite the fact that the university never convened a Hearing Panel pursuant to the policy, the university maintained until recently that the Academic Integrity Proceedings against Sears and Logar were ongoing, according to the suit.

The plaintiffs claimed more than three years after the 210-day deadline imposed by the policy for completing the investigation had passed, the university charged Clark with reviewing the Academic Integrity Process regarding Student A in November 2011 and another 265 days passed from Clark’s appointment to the time he completed his review.

After conducting his review, Clark found in August that there were unreasonable delays in the investigation of Sears and Logar raising due process implications
and impugning the concept of fairness and the conclusion was reached more than 1,500 days after Garrison’s first allegation of misconduct, according to the suit.

The plaintiffs claimed Clark further stated that no further academic misconduct action would be taken with respect to the Student A matter and the defendants then terminated the Academic Integrity proceedings against Sears and Logar, agreeing to take no further steps.

Because there was no finding of academic misconduct, by the terms of the policy, the defendants are now obligated to consult with Sears and Logar in order to restore their reputations, and Sears and Logar have requested in writing that the defendants take steps in order to restore their reputations as required by the policy, according to the suit.

The plaintiffs claimed despite the fact that the investigation resulted in no finding of misconduct, the defendants have refused to restore the harm done to Sears' and Logar’s reputations as a result of the university’s conduct. By their blatant refusal to comply with the policy to repair Sears' and Logar’s reputations, the defendants have arbitrarily and capriciously violated the plaintiffs’ substantive due process rights guaranteed by the Fourteenth Amendment of the United States Constitution, according to the suit.

The plaintiffs were seeking for the court to enter judgment in their favor and against the defendants; enter an appropriate declaratory or equitable relief
required to prevent the continued violation of the plaintiffs’ constitutional rights; and compensatory damages.

They were being represented by Robert J. Ridge of Thorp Reed & Armstrong LLP; John H. Tinney Jr. of the Tinney Law Firm PLLC; and Thomas A. Clare of Kirkland & Ellis LLP. Clark was represented by L. Lee Javins II and Mark A. Barney of Bucci Bailey & Javins LC.

WVU, Clements, Wheatley and Martin were represented by Stephen M. LaCagnin, Wendy G. Adkins and Seth P. Hayes of Jackson Kelly PLLC.

McDiarmid was represented by Scott Curnutte of Curnutte Law Office.

U.S. District Court for the Northern District of West Virginia at Clarksburg case number: 1:13-cv-145