SUMMERSVILLE, W.Va. — A panel of three judges has officially ruled to dismiss a petition seeking the removal of two Nicholas County commissioners from office.
The court also denied the addition of a new petitioner, Kenneth Culp, to amend the proceedings.
Culp wanted to join petitioners Tim Clifford, Charles D. Bever (deceased), Robert A. Dorsey Sr., Duane Borchers, and Richard Key. They have been seeking the removal of Nicholas County Commissioners Ken Altizer and John Miller in connection to a dispute over the hiring of a County Administrator in August 2013.
Culp’s amendment would have added the allegations of “systemic financial mismanagement” dating back to 2010.
The panel expressed that Culp’s lack of timeliness violated standard procedure and would have forced the panel to start over, essentially from scratch, to allow the Respondent’s time for discovery.
While the panel upheld earlier rulings citing the violations made by the commissioners, they also ruled that this was a result of statutory misinterpretation as opposed to actual misconduct.
Duane Ruggier, the attorney representing Altizer and Miller, argued that the statutory misinterpretation is exactly why removing the two commissioners from office would have been drastic and unjustified.
“When it comes to the removal of a public official that the voters elected and put in office, removing that public official is a drastic remedy as stated by our Supreme Court,” he said.
The panel agreed with that interpretation. In their official opinion, “this Court adamantly believes that elections are the proper conduit through which to remove elected officials for committing violations of the nature alleged by Petitioners.”
Ruggier pointed out that the commissioners good faith work had been proven when they sought multiple legal opinions in determining whether they could create a county administrator position without going to a countywide vote.
“They sought the advice of two other attorneys–not myself,” he said. “Two other attorneys. One from the West Virginia Association of Counties and the Nicholas County Prosecuting Attorney before they went forward and decided to do this.”
But the petitioners argued that the creation of such a position, which presently exists in 39 other West Virginia counties, violated state code and the West Virginia State Constitution because it was done without a countywide election.
“Thirty-nine other counties had hired county administrators, county coordinators, county overseer-type person,” he said. “That’s all that was done here.”
In an earlier ruling, Judge Jack Alsop sided with the petitioners and annulled the County Administrator position and the hiring of Roger Beverage to fill that role in Nicholas County.
Despite the violation, the West Virginia Ethics Commission eventually found no wrongdoing by the county commission. The panel used that, in part, as a reason for their ruling.
Additionally, the three-judge panel found that the most just course of action had already been taken by annulling the creation of a county administrator position.
The West Virginia Supreme Court of Appeals upheld the decision by Judge Alsop, but the commissioners filed a motion for summary judgment last September, believing there to be no more “genuine issues of material fact” remaining in the case.
Ruggier said the panel’s decision validated that the commission’s actions were in good faith as opposed to open misconduct.
“The three-judge panel specifically stated in the ruling that there was no misconduct on the part of the county commissioners,” he said.
They were seeking the removal of a third county Commissioner, Dr. Yancy Short, as well. Dr. Short chose not to run for reelection.
Judge Philip Gaujot, Judge Timothy Sweeney, and Judge John Hatcher last heard this case in September. They ordered both sides to submit a Finding of Facts and Conclusion of Law by October 2, 2015.
Although this petition has now been dismissed, the panel did note that the appropriate procedure for Kenneth Culp would be to file a separate petition to address his allegations of “systemic financial mismanagement.”
“We would hope that this is the end of it, but you would probably have to ask Mr. Culp about that,” Ruggier said.
MetroNews reached out to petitioner Tim Clifford Monday evening, but have not yet received a comment.