CLARKSBURG, W. Va. – The City of Clarksburg’s Code Enforcement Office has been ordered to cease and desist its operations in a letter sent by the West Virginia Attorney General’s Office.
The letter dated July 1 was sent to Clarksburg Mayor Catherine Goings by Assistant Attorney Stephen Connolly on behalf of the State Fire Commission.
The Attorney General’s Office could not make a comment on the matter as they are merely the legal representation for the State Fire Commission and all inquiries were referred to Lawrence Messina with the Department of Military Affairs and Public Safety.
“In terms of what options the city has, I think, is a question for the mayor, or the city attorney or some other official for the city,” Messina said. “It does appear that the letter cites alleged actions that followed the issuing of the complaint at last weeks meeting of the Fire Commission.”
The letter alleges “agents of Clarksburg have been retaliating against property owners, revoking issued building permits without valid stop work orders and generally continuing to engage in conduct in violation of the State Building Code,” Connolly wrote.
It goes on to order a cease and desist of all building code enforcement by all individuals without certification and all certified individuals until the city adopts a current version of the State Building Code or until after the outcome of the pending Complaints before the Commission.
“Should you fail to comply, the Commission will have no choice but to take further action to ensure that you are not engaging in building code enforcement without adopting the most current version of the State Building Code, and allowing person(s) to conduct inspections without a valid certification,” according to the letter.
The most current, enforceable version of the State Building Code was revised in 2009 after legislative action and a new revision just finished a public comment period on June 24.
Going forward Messina said the city will have to decide how to respond.
“The city may say its following the law and the Fire Commission, as a regulatory body, may say it doesn’t,” he said. “The simple answer is they’re able to pursue a Building Code Program as long as that program is in keeping with the law.”
As of Wednesday morning, Mayor Goings said she had not received a copy of the letter.
The initial complaint against the code enforcement office stems from the West Virginia Fire Commission believing it has probable cause to initiate legal action against Clarksburg after it received complaints regarding the questionable practices of the city’s Building Code Officials.
This decision was made during the commission’s meeting on Friday, June 27 during a closed session at WVU’s Jackson’s Mill.
The Fire Commission alleges Clarksburg Code Office employees were unlicensed or had invalid continuing education certificates and employees utilized an unlawful building code to target specific properties and property owners.
The issue, according to the complaint, began in October 2006 when code enforcement office employee Adam Barbario “misrepresented his qualifications to obtain certification as a Building Code Official. “Specifically, Barbario represented he was the code official for Clarksburg code program.” At the time, Barry Soles was the Building Code Official for Clarksburg at the time of Barbario’s application. He did not assume the position until March of 2007.
It is alleged Barbario did this to obtain certification under the provisions of the 2006 Rule which allowed certification from previous years if the employee was certified within ninety days of the August 1, deadline.
The complaint also alleges Keith Kessling participated in the same activity.
If these allegations are true, any renewal of certification is invalid and any action taken by the two are not those of a certified Building Code Official.
The two other “Respondents” named in the complaint are Jonathan Davis and Brian Kennedy.
The city is accused of knowingly and unlawfully employing and utilizing Davis, an uncertified employee, to conduct building code inspection from 2009 through 2011, according to the complaint.
The complaint also reports the city requested provisional status to hire uncertified individuals, which was granted by the commission, from December 2011 and expired December 2013.
Afterward, the city requested an extension of the provisional status and the opportunity to employ Kennedy. The request was withdrawn “on or about December 4, 2013. As such, any empolyees engaging in BCO work in Clarksburg must have been certified by the Commission to conduct such work.”
Reportedly, Clarksburg has employed Kennedy who has unlawfully engaged in BCO work without certification, allegedly up until the cease and desist order was sent.
Another “Respondent” was named in the letter but not in the complaint only identified as “Mr. Veltri.” Messina reported the individual was Paul Veltri, but his title and involvement were unknown at the time by his office.
In September 2013, the Fire Commission designated the office of the Attorney General to begin evaluating Clarksburg’s building code program based on these allegations.
The investigation confirmed these formal complaints and revealed the city knowingly amended the board of appeals from a five member panel to a three member panel in April 2009, which is contrary to the state’s building code.
Also, following up on numerous complaints from citizens lead the investigation to allege failed to meet the notice of requirements of the state building code when informing property owners of specific violations and why the notice was issued, which includes a correction order to make repairs and improvements or allows residents to appeal.
These allegations will already be addressed in federal court cases filed before the Fire Commission’s complaint, which both also argue the city used outdated building codes to target properties, leading to bankruptcy in one of the cases.
After reviewing the investigation, the Fire Commission asserts code office employees acted independently or together to enrich themselves and others through the use of public funds and the unlawful building code program.
Again, all inquiries of the complaint were directed to Messina.
He confirmed the numerous formal complaints accepted by the commission and other entities.
“I can tell you that in my time [at the department] — I’ve been here 11 months in July — that this office has fielded, on behalf of the Fire Marshal’s Office, complaints from citizens, from individuals, mostly property owners, landlords, that sort of thing, about how Clarksburg has enforced its building code and I believe the Governor’s Office of Constituent Services has also fielded complaints.”
Beyond the formal complaints listed in the notice, the Fire Commission reports 14 informal complaints, which Messina described as complaints presented to the commission without going through the proper channels, such as a phone call or in-person encounter.
According to Messina, the next step in the process is appointing a hearing examiner.
“The hearing examiner will then schedule one or more hearings to go over these allegations and to hear from the city and the individuals named as respondents in this complaint,” he said. “At some point then the hearing examiner will develop findings and facts and conclusions with law that will be presented to the Fire Commission and the Fire Commission will decide what to do with that information.”
Messina does not expect this process to be completed by the time the commission meets next in August, but does expect the hearing examiner to have set a schedule by then.
As of Monday Clarksburg has claimed it has not received the complaint from the commission.