CLARKSBURG – Morgantown police officers and firefighters who have filed two lawsuits accusing the city of retaliation have filed motions to remand both cases back to state court.
The two lawsuits filed September 7 – 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 – had been removed to federal court by the city September 20. The lawsuits originally were filed 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 firefighters’ motion to remand was filed October 13, and the police motion was filed October 14.
Toriseva
Also, a hearing before the Morgantown Fire Civil Service Commission is scheduled for October 17 regarding the pay issues at the heart of the retaliation lawsuit.
Attorney Teresa Toriseva, who is representing both groups in the lawsuits, said all members of Morgantown’s City Council as well as the city manager, assistant city manager and human resources director all have been subpoenaed for the hearing.
Meanwhile, the city has filed one motion to continue Monday’s fire civil service hearing because the case is pending in federal court and another to dismiss the demand for the hearing. It also filed a motion to quash the subpoenas, saying they were not sent by the civil service commission.
U.S. District Judge Thomas Kleeh, who is hearing both cases in federal court, filed no orders to stop the fire civil service commission hearing, and he is considering the group’s separate motions to remand back to state court.
In an answer filed September 29 in federal court, the city says it has not taken any unlawful, harmful or adverse action against 48 firefighters who filed a lawsuit accusing the city of retaliation. It also said the plaintiffs have not been harmed and have not been treated differently than any other city employee.
Otherwise, it denies the allegations brought by the firefighters in the lawsuit originally filed in Monongalia Circuit Court before the city removed it to federal court last month.
“They have, in fact, received an increase in their pay under the city’s pay plan effective July 1, 2022,” according to the court filing. “The various forms of additional or premium pay that they allege have been ‘eliminated’ b the city (including, but not limited to, Master Firefighter pay, hazard pay, longevity pay, shift differential, emergency overtime and WVU game pay) have been incorporated into the plaintiffs’ base rates … or provided for in the updates to the pay plan effective September 2, 2022.
“In addition, the new pay plan increased each plaintiff’s base pay rate above their prior pay rate (inclusive of hazard pay and longevity pay) plus a 3% cost of living adjustment. Further, the city’s new pay plan now gives employees an opportunity to increase one ‘step’ in the pay plan each year, earning an additional 0.8% to 0.9% increase in pay each year (in addition to any cost of living adjustments that may be provided).”
The city also says it reserves the right to file cross-claims, counterclaims, third-party claims and other pleadings as necessary.
During a September 27 hearing in the firefighter case, the city argued that it was seeking to enjoin individual firefighters and not the Morgantown Fire Civil Service Commission.
At the September 26 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 West Virginia 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.”
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)