CHARLESTON, W.Va. — Richwood’s elected mayor and council are set to clash in court today.
Also in the case — but trying to get out — is state Auditor J.B. McCuskey.
Richwood Mayor Bob Henry Baber says members of Council acted illegally in sidelining him as mayor over the past few weeks.
Council members placed Baber on administrative leave after the revelation that McCuskey’s office had launched an investigation that involves the documentation of purchases made on Baber’s state-issued spending card. Baber says the amount in question is $6,500.
Baber wants to be reinstated as mayor.
He also wants McCuskey to stop the investigation. That includes a broader audit of several years of Richwood’s financial records that Baber’s filing says “bear ominously for the petitioner.”
McCuskey says he had no role in Council’s actions. He says the investigation is within the scope of his office’s duties, and a lawyer for McCuskey’s office has filed a motion to be dismissed from Baber’s petition.
A lawyer for the Council members who are being sued has filed a motion to dismiss or to have the case transferred to Nicholas Circuit Court.
Kanawha Circuit Judge Joanna Tabit will hear all sides today at 1:30 p.m.
The situation started Sept. 21 when Council members asked him to account for purchases on the state-issued spending card he was issued as mayor.
When Baber responded that he had not yet compiled full documentation of the purchases made over a period of a few months, Council members moved to go into executive session.
Baber’s complaint, filed by his attorney Richie Robb, notes that the Council agenda did not include public notification of an executive session or an explanation of why it was necessary.
During the closed session, Baber’s petition alleges, Council member Robin Brown asked him to resign. Baber refused. So Councilman Chuck Toussieng proposed that he instead be placed on administrative leave with pay.
Returning to regular session, Council members voted to place the mayor on leave. The motion to dismiss filed on behalf of Council members contends Baber took part in the vote. Richwood’s form of municipal government gives the mayor voting rights with Council.
Baber says he continued to function regularly as mayor, despite the vote, until Sept. 25 when he received a letter from the city recorder, Chris Drennen, telling him he was to be placed on administrative leave until the outcome of the investigation by McCuskey’s office.
“The letter contained no statutory or other legal authority for any of these directives, and the petitioner is not aware of any,” Robb wrote in the complaint for Baber.
Baber says he was forced from participating in regular and special city council meetings Oct. 5 when he was confronted by Richwood’s policy chief. He was also kicked out of a meeting Oct. 19 when he was in a crowd with citizens and got into a verbal argument with a demolition contractor.
Baber’s petition contends Council violated the open meetings act.
“Accordingly, the petitioner asks this Honorable Court to annul those actions the Richwood respondents took at the executive session of Sept. 21, 2017, placing him on administrative leave and otherwise restricting him from performing his mayoral duties,” Robb wrote.
He also wants Council to be stopped from putting him on administrative leave any more.
And Robb wonders if the court might punish the Council members.
“Calling this Court’s attention to the Richwood respondents’ willing resort to potential criminal implications for the petitioner’s conduct in this matter through the use of law enforcement personnel, he asks the court to make a determination whether the Richwood residents’ violation of the Open Governmental Proceedings Act as alleged in the foregoing merits criminal sanctions against any of them,” Robb wrote.
The motion by Council members to dismiss Baber’s case contends his participation in the vote on his administrative leave undercuts his arguments.
“In this instance, despite what is pled, Mayor Baber agreed to accept administrative leave with pay while the West Virginia Auditor conducted its investigation into the purchasing card use by the Mayor,” wrote Jared Tully, the lawyer for the Council members. “Hence, his claims lack merit.”
Baber claims McCuskey’s investigation touched off the actions by Council.
Baber is asking the court to force McCuskey to complete the investigation and announce any findings immediately.
“Notwithstanding the petitioner’s ‘self-reporting’ of all but 3 percent of the subject expenditures to the respondent State Auditor, no word has been given to the petitioner or anyone else for that matter when this investigation will be concluded or if it has even begun,” Robb wrote.
“The inexplicable silence and apparent inaction constitutes part, if not all, the extralegal actions of the Richwood residents as described in the first three counts or claims for relief in this petition to occur and continue.”
Council members have said the Auditor’s office has been conducting a lengthy review of the city’s finances from 2013 to the present. Baber was elected mayor in 2016.
Baber’s petition alleges “the implications for using these pending audits to continue depriving him of his office as is currently happening exist.”
He asks the court to stop Council, along with McCuskey, “from using the dubious grounds for any outcome of these pending annual audits of past fiscal years to deny or continuing to deprive the petitioner from carrying out the duties of his office.”
McCuskey’s motion to be dismissed from the case contends his office has every right to look into the financial practices of Richwood. It says the Auditor’s role in the situation lies outside the beef between Baber and Council.
“Respondent McCuskey does not serve on Richwood City Council and did not participate in the City Council meetings underlying this petition,” states the motion filed by Marty Wright, an attorney on McCuskey’s staff.
“Further, respondent McCuskey had no vote or authority in the placement of petitioner on administrative leave, and his inclusion in this petition is dubious at best,” Wright wrote.
The motion goes on to say Baber offers no legal reasoning to suspend the Auditor’s investigation of his purchasing card or the multi-year audit of the city’s finances.
“Indeed, Respondent McCuskey is the statutorily designated chief inspector, and is authorized under law to investigate and examine the City of Richwood’s finances,” Wright wrote.
The motion also responds to Baber’s claim that the Auditor has been silent on the status of the investigation.
“In a bit of a contradiction, petitioner asserts that the lack of publicity by the Auditor is causing him ‘irreparable harm’ with the City Council,” Wright wrote. “Yet the claimed ‘irreparable harm’ asserted by the petitioner is one of his own making.
“On multiple occasions, Petitioner Baber has orchestrated press conferences outside of the State Auditor’s office. He has additionally taken to social media and media outlets to publicly discuss the investigation and even stated that he may have misused the purchasing card.”
The motion on behalf of the Council members support’s McCuskey’s position that he should be dropped from the case.
That motion contends McCuskey was added only to ensure the case would be heard in Kanawha County, rather than Nicholas, where communities have been hotly divided over school consolidation.
“As such, the only party which would confer venue in Kanawha County is not a proper party and, in fact, no claim is stated against it. Accordingly, this matter should be dismissed or transferred to Nicholas County.”