CLARKSBURG – Two lawsuits accusing the City of Morgantown of retaliation against its firefighters and police officers have been removed to federal court.
During a September 27 hearing in the case originally filed in state court by the firefighters, the city argued that it was seeking to enjoin individual firefighters and not the Morgantown Fire Civil Service Commission. About 50 first responders filled U.S. District Judge Thomas Kleeh’s Clarksburg courtroom.
Kleeh gave the city until September 29 to answer the original firefighter complaint it had removed to federal court because the city said it has affirmative claims on which to base their request for an injunction. Kleeh, who didn't grant the injunction, already is addressing the firefighter case because the city also filed a petition for injunction to stop a September 26 fire civil service hearing from happening. But, that hearing went on as scheduled Monday.
Kleeh
| Courtesy photo
Both lawsuits removed to federal court – after having originally been filed in Monongalia Circuit Court – have been assigned to Kleeh. Teresa Toriseva, who is representing the firefighters and the police officers in their lawsuits, told The West Virginia Record she plans to file a motion to remand the cases back to state court. The city has to answer the firefighter lawsuit by Thursday and file any additional arguments by Friday.
At Monday’s civil service hearing, the commission heard arguments from the city that it lacked jurisdiction to hear the issue. The commission didn’t rule on it, but it did set a continued hearing for October 17 to take evidence.
“Morgantown respectfully requests preliminary injunctive relief barring plaintiffs, or any of them, from pursuing claims before the Morgantown Fire Civil Service Commission seeking to alter the general pay and benefit practices of Morgantown, specifically including barring them from pursuit of those claims identified in their demand letter referenced herein and at the meeting and public hearing set by the Fire Civil Service Commission,” the city’s motion for preliminary injunction against the firefighters states.
The firefighters, however, countered by saying a federal court can’t exercise jurisdiction over civil service proceedings because they’re governed purely by state law.
“The backbone of any city, large or small, is its public safety servants,” Toriseva previously told The Record. “Firefighters and police officers are a city’s main resource.
“The laws protect them from retaliation and mistreatment on the job that can be brought on by the changing winds of city politics. These lawsuit filings today aim to enforce the state laws that city officials refuse to follow.”
The two lawsuits – one by 48 members of the International Association of Fire Fighters Local 313 and another by 43 members of the Mon-Preston Fraternal Order of Police Local 87 – originally were filed September 7 in Monongalia Circuit Court. The filings came two days after the groups issued a statement regarding their votes of no confidence in the entire city government to “competently administer public safety.”
The city removed them to federal court September 20.
In their complaint, the firefighters claim the city has violated their right to seek redress for their grievance by reducing pay and benefits to punish or retaliate against them.
“The defendant has chosen to retaliate against the plaintiffs and other Morgantown civil service employees by reducing their pay and manipulating the leave system to punish those city employees that exercise their right to petition the courts,” the complaint states. “The plaintiffs have brought two lawsuits against the defendant seeking to correct various wage and compensation issues.”
The lawsuit details “unprecedented challenges” the department is facing to recruit and retain firefighters. It says those issues mean minimum staffing requirements rarely are met.
“Firefighting staffing challenges created by the city threaten the overall public safety of Morgantown residents, Morgantown structures, and citizens’ real and personal property,” the complaint states.
Members of IAFF Local 313 previously filed a lawsuit against the city alleging negligent failure to properly pay statutory holiday premium.
This summer, the city amended the employee handbook to change how firefighters are paid wages and benefits. They firefighters allege this was done in retaliation for the lawsuit.
“The changes to pay and compensation were unnecessary and arbitrary, designed only to punish, devalue, and retaliate against the firefighters for their continued fights in the courts to be paid,” the complaint states.
Under the new compensation scheme, both firefighter pay and leave is affected. The new pay scheme eliminates Master Firefighter pay, hazard pay, longevity pay, shift differential pay and emergency overtime pay. It also reduces the amount of paid time off a firefighter can bank and also eliminates sick time.
The complaint says firefighters could lose as much as $1,260.60 per year under the new pay scheme.
In the police complaint, the officers say their department also is understaffed. As of August 31, it is authorized to have 76 officers. Currently, there are 55 officers. Recruitment is an issue for the police department as well, the complaint states.
The FOP local also has filed litigation against the city for its plan to create a Citizens Police Review Board, saying it wasn’t needed because of the existing Civil Service Commission. And in May, the lodge sued the city again for failing to produce documents related to a wage and compensation study.
The officers say the city’s new pay scheme also reduces their pay and benefits, which has “affected department morale and threaten public safety as trained, experienced police officers seek other employment further adding to the staffing crisis.”
The complaint says the new pay scheme reduces overtime availability for police officers, eliminates the ability to accrue additional sick leave, additional vacation leave and additional holiday leave. It also changes how compensatory time can be used.
Both groups accuse the city of violating their rights to petition for redress of grievances, official retaliation by city government actors, violating the West Virginia Wage Payment and Collection Act and violating the state Whistle-Blower Law. The firefighters also accuse the city of violating public policy and violating the Takings Clause of the state constitution.
Both groups seek compensatory damages, interest, attorney fees and court costs.
In addition to the civil lawsuits, both parties also filed petitions with their respective Civil Service Commissions demanding a public hearing within 10 days on the pay and compensation issues. They also want several city government employees subpoenaed for those hearings.
Both locals are being represented by Toriseva, Joshua Miller and Michael Kuhn of Toriseva Law in Wheeling. The city is being represented by Ryan Simonton, Erin Webb and Matthew Elshiaty of Kay Casto & Chaney.
U.S. District Court for the Northern District of West Virginia case numbers 1:22-cv-00094 (FOP) and 1:22-cv-00095 (IAFF); Monongalia Circuit Court case numbers 22-C-214 (FOP) and 22-C-216 (IAFF)
