SUMMERSVILLE – A three-judge panel has dismissed a removal petition against the Nicholas County Commission, its president and two commissioners.
The judges granted an order granting the respondents’ motion for summary judgment, according to the Jan. 4 order. The three-judge panel included Judges Phillip D. Gaujot, John W. Hatcher Jr. and Timothy L. Sweeney.
“The County Commissioners were pleased with the dismissal of the removal petition and the finding that they did not engage in any official misconduct or malfeasance,” said attorney Duane J. Ruggier II, who represented the commissioners. “The actions of the Commissioners in attempting to do what 39 other counties in the state had already done, in no way, shape or form warranted their dismissal from elected office.”
Ruggier said this was simply a statutory disagreement and prior to establishing the County Administrator position, the commissioners sought the opinion of the Nicholas County Prosecuting Attorney and counsel for the West Virginia Association of Counties.
He said both attorneys approved the actions of the commissioners.
“I think it’s important to recognize that under W.Va. Code 6-6-7(b)(1) it only takes 50 signatures to seek the dismissal of an elected public official and empanel three judges from across the State of West Virginia,” said Ruggier, an attorney with Pullin, Fowler, Flanagan, Brown & Poe in Charleston. “It is very easy to get 50 signatures for just about anything. In my opinion, the 50 signature threshold is way too low and needs to be looked at by the West Virginia Legislature.”
On Sept. 25, the parties appeared before the court for a status hearing, oral arguments on the respondents’ motion for summary judgment and oral arguments on prospective intervenor Kenneth Culp’s request to join as an intervenor/party-petitioner and amend the petition.
“After a thorough review of the record, the parties’ oral arguments, and the parties’ proposed findings of fact and conclusions of law, the court finds that there are no genuine issues of material fact remaining and further inquiry regarding the facts is not necessary in order to make a determination that the Respondents are entitled to judgment as a matter of law,” the order states.
The petition was filed in May 2014 by Tim Clifford, Charles B. Bever, Robert A. Dorsey Sr., Duane Borchers and Richard Key and sought to remove County Commissioners Kenneth Altizer, John Miller and Dr. Yancy Short.
On Aug. 6, 2013, the Commission conducted a regularly scheduled meeting, where it was announced that Roger Beverage would be appointed to the newly created position of countywide administrator and the proposed role was to oversee the day-to-day business of the county when the commissioners were not present and to provide oversight of various county agencies.
On Aug. 9, 2013, notice was provided of a special meeting that indicated, among other things, that the commission would meet on Aug. 12 to rescind Beverage’s appointment because the commission failed to place it on the agenda for the Aug. 6 meeting. The notice further indicated that the matter would be placed on the agenda for the next open meeting scheduled for Aug. 20 to allow for public comment on the creation of the position and the hiring of Beverage.
On Aug. 12 the special meeting was held and the commissioners sought legal advice on the decision to create the countywide administrator position, according to the suit.
On Aug. 20, the next meeting was held and the petitioners were all afforded the opportunity to speak in opposition of the commission’s proposals and the commission unanimously voted to create the countrywide administrator position and hire Beverage.
On May 5, 2014, the petitioners initiated the civil action against the commission and claimed the respondents violated the West Virginia Constitution and certain provisions of West Virginia Code.
The petition asserted that the commissioners’ actions constituted official misconduct and malfeasance in office and that each commissioner was guilty of incompetence and neglect of duty because they attempted to reform the structure of the county government without following the proper procedures.
On Aug. 28, 2013, the petitioners filed a petition for preliminary injunction seeking to prevent the creation of the countywide administrator position and the hiring of Beverage.
The respondents filed an answer, denying the allegations on Sept. 6, 2013, and on Dec. 5, 2013, a hearing on the preliminary injunction was held, and on Jan. 28, 2013, Judge Jack Alsop annulled and vacated the creation of the position and rescinded the hiring of Beverage.
On July 3, 2014, the matter was stayed pending the resolution of the respondents’ appeal of Alsop’s opinion and on June 12, the Supreme Court of Appeals of West Virginia issued a memorandum decision affirming Alsop’s ruling.
The respondents filed an instant motion for summary judgment on Sept. 4 before the three-judge panel and the petitioners did not file a response.
The panel found that the petitioners had failed to produce evidence demonstrating that the commissioners committed official misconduct, neglect of duty, malfeasance in office or incompetence.
The three-judge panel’s order stated that the court adamantly believes that elections are the proper conduit through which to remove elected officials for committing violations of the nature alleged by the petitioners.
“The voters of Nicholas County should serve as the ultimate arbiter of whether or not Respondents’ actions warrant removal from office—not the judges of this or any other court,” the order states.
The petitioners represented themselves.
The Nicholas County Commissioners were represented by Ruggier and Drannon L. Adkins of Pullin, Fowler, Flanagan, Brown & Poe.
Nicholas Circuit Court case number: 14-P-22