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Nicholas commissioners appeal administrator hiring

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Nicholas County commissioners say they never intended their hiring of a county administrator to be seen as an attempt to "formally change the form of county government."

The commissioners are appealing a Jan. 29 circuit court ruling vacating their hiring of Roger Beverage as administrator. That decision, rendered by Special Judge Jack Alsop, found that commissioners had violated state code in giving Beverage the job without it being advertised, without having a pay scale and job description in place and without first petitioning the Legislature for permission and allowing voters to have a say.

Alsop also said the language of a memorandum distributed by the commissioners suggested they had given Beverage "unfettered authority" to act in their behalf.

In their notice of appeal to the West Virginia Supreme Court of Appeals, commissioners said prior to hiring Beverage, "Nicholas County was experiencing a number of issues with several of its departments."

"Most notably, there was little to no direct supervision over department expenditures, and as a result, department personnel were found using taxpayer money for unauthorized (and often inappropriate) purchases," commissioners said.

They said hiring Beverage as administrator allowed him "to act as an agent of the commission and supervise the troubled departments and shore up unauthorized spending," pointing out that those powers did not include authorization to appoint or hire employees or designate him to be part of the county commission, as most county administrators do.

In all, commissioners cited six assignments of error in their notice of appeal to the state Supreme Court of Appeals, including allegations that Alsop erred in:

 

  • Entering a final order when the hearing which served as the basis of that order was set as a preliminary injunction hearing,
  • Basing his finding of facts on an incomplete factual record from the preliminary injunction hearing,
  • Relying on an incomplete factual record and the misapplication of the law in deciding Beverage's hiring violated the state's open governmental proceedings and ethics acts,
  • Finding the commission had violated the sunshine law by meeting behind closed doors to discuss the memorandum and job description and ruling they'd violated the ethics act without giving Beverage a "full and fair hearing."

 

Commissioners also said an ethics complaint can only be prosecuted against a specific person or public official, not a political subdivision, and that it's not the Circuit Court's job to "be the trier of fact."

Commissioners contend Alsop and the Nicholas County man who filed the writ, Tom Clifford, "misconstrued" their efforts to hire Beverage "as an attempt to formally change the form of county government."

"It bears repeating that the Circuit Court was wrong to issue a final order based upon the limited evidence presented during the preliminary injunction hearing," they added. "Alternatively, the Circuit Court's findings of fact contained within its Final Order are clearly erroneous given that they are based upon an incomplete factual records which was the result of the Circuit Court's failure to provide clear and unambiguous notice" that it was consolidating the trial action with the preliminary injunction hearing.

Clifford, though, insists commissioners exceeded the scope of their authority in hiring an administrator and allowing him to write a job description and set his salary, without public input and without petitioning the Legislature for permission.

He insists state law spells out exactly what must be done in order to hire an administrator, including petitioning the Legislature for permission to proceed. Notice of the proposed changes also must be publicized before any action is taken.

Clifford said residents he talks to are "outraged" that commissioners would put Beverage on staff without public input and allowing him to set his own job description and $60,000 annual salary.

He said a citizen's action group has secured "several hundred signatures" on petitions now circulating that call for removal of the three commissioners.

Commissioners are represented by Charleston-based Duane Ruggier of Pullin, Fowler, Flanagan, Brown & Poe.

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