SUMMERSVILLE, W.Va. — A three judge panel will make a determination in the coming months whether to dismiss a second attempt at removing two Nicholas County Commissioners from office following a hearing Thursday in court.
Petitioners Kenneth Culp, a Nicholas County businessman and retired CPA, and George Mace, a retired professional surveyor, filed a petition for removal in Nicholas County Circuit Court in April–just three months after the first petition was officially dismissed.
The primary allegations against Commissioners Ken Altizer and John Miller are “systemic financial malfeasance”
Duane Ruggier, the attorney representing Commission President Ken Altizer and Commissioner John Miller, filed the motion to dismiss based on a number of issues that included a failure to earn the proper number of signatures to initiate a removal hearing, an improper number of named petitioners, the conclusory allegations were unsupported by the facts, and that Mr. Culp and Mr. Mace were improperly practicing law if they claimed to represent the will of the 127 signators.
“You can’t, as a non-attorney, represent other individuals,” Ruggier said. “That’s the argument we made before the Court. We made that argument in the past case also, which in the past removal case was denied.”
Culp and Mace believe that issue didn’t matter in previous cases like this one and should not matter now–citing concern over the cost to hire an attorney.
“That puts us at a clear disadvantage because the County Commissioners are using taxpayer money to use the best attorneys they can find, and we have to do it on our own,” he said.
The previous petition for removal stemmed from an ongoing controversy over the Commission’s decision to hire a County Administrator without putting the issue to vote. Although a lower court, and eventually the West Virginia Supreme Court of Appeals, found the hiring to have been improper, the West Virginia Ethics Commission found no wrong-doing. Ruggier said in that case it was a “good faith” mistake in which the Commissioners had consulted with legal counsel before the decision to create the County Administrator position.
The question over the number of signators and petitioners needed to move removal petition forward comes down to statutory interpretation. Culp believes the court should interpret the law strictly without attempting to interpret language that isn’t included in the statute.
“The statute is broken down into two sections and you only have to comply with one or the other one,” he said. “The first one, which we clearly complied with, said that we only needed 50 signatures.”
127 people signed the petition, but Ruggier said that only 43 of those people were registered voters and the Deputy Clerk of Nicholas County could only confirm 37 of them voted in the previous election. One percent of people who voted would be approximately 68 signators.
“It makes sense that you shouldn’t be able to seek the removal of an elected official when you didn’t even participate in the vote,” he said. “There were approximately 6800 individuals who voted in the last election. It’s ludicrous that 50 individuals, at best, could just seek the removal of the elected officials who are put in place by a vote of amongst 6800 people.”
Culp said Ruggier was adding his own language into the statute and misinterpreting the law as it was written.
“The attorney for the respondents have just twisted the law and inserted those terms into the law, but we also feel we clearly complied with the second section that said we had to have one percent of the number of persons who voted in the election,” Culp said.
But Ruggier said that the law is there to protect the will of the voters. Using a refrain from the first successful dismissal, he said that the threshold of “drastic remedy” hadn’t been met in attempting to remove an elected office holder from his or her position.
“It’s a drastic remedy and to do that should not just be able to be done by a couple of signatures outside a convenient store,” he said.
The full petition alleges that the two Commissioners are guilty of:
  • Failing to adequately supervise the general management of the fiscal affairs and business of Nicholas County under West Virginia Code 7-1-5
  • Are guilty of malfeasance in office, incompetence and neglect of duty under West Virginia Code 6-6-1
  • Are guilty of appointing and/or retaining incompetent persons under West Virginia Code 6-6-1
  • Are guilty of the willful waste of public funds under West Virginia Code 6-6-1
  • Are guilty of financial malfeasance under West Virginia Code 6-6-7 (a) through ignorance and inattention
  • Are guilty of failing to segregate County funds in separate bank accounts as required by legal agreements and/or the law
  • Are guilty of violating the United States Constitution, Article I of the Bill of Rights by limiting the public’s right “to petition the Government for a redress of grievances”
  • And have refused to take responsibility for their actions
Ruggier said that the petition that Culp and Mace asked residents to sign did not include much in terms of specifics–essentially a small paragraph of text and then requesting residents sign the petition to initiate the removal process.
The three judge panel consists of Judge John W. Hatcher Jr. from Fayette County, Judge Alan D. Moats from Taylor County, and Judge Jennifer Baily from Kanawha County.
There is no timetable for a written decision.