by Ron Gregory
CHARLESTON – The battle has been joined.
In the famous words of former President George H.W. Bush, he was referring to military engagement. In this case. Richwood Mayor Bob Henry Baber’s legal counsel has filed a petition in Kanawha County circuit court against city council and State Auditor J.B. McCuskey.
It is the mayor’s first court response to efforts by city council to place him on “paid administrative leave.” Baber took the action after his accountant attempted to provide city council with receipts for state purchasing card expenditures at their Thursday, Octob34 19, meeting.
This followed weeks of back-and-forth, in which council apparently asked Baber to resign and he refused. Then, they say he agreed to a “paid administrative leave.” Although there is no such term in state law or city charter, council has followed through by instructing their police chief to prohibit Baber from chairing council meetings, entering the mayor’s office or representing himself as a representative of Richwood town government.
Baber’s accountant said when she attended the council meeting, a councilman tried to return her documentation regarding the p-card purchases. She was told not to speak and she exited the building. Baber was led out after he attempted to refute remarks made about him during the meeting.
“It became crystal clear to me Thursday night that council really wasn’t seeking proof of the p-card purchases. They just want rid of me at any cost,” Baber said in Charleston today. He and the accountant attempted to give copies of the documents to McCuskey’s office at the capitol but were rebuffed there as well. A spokesman for McCuskey said the auditor’s office is conducting a “completely independent audit. We did not ask for those receipts. He has an attorney; we are not getting in the middle of this.”
But Baber and his attorney, former South Charleston Mayor Richie Robb, say the auditor’s office is an “indispensable party” to the suit filed today.
In his claims for relief, Baber says city council has fashioned itself a “quasi-judicial entity” by attempting to put Baber on leave without legal authority to do so.
“Accordingly,” the petition says, “(Baber) asks the … court (to) issue a rule to show cause … why a writ or prohibition prohibiting (council) from placing him on administrative leave and otherwise restricting him from performing his mayor duties should not be awarded….”
A second count claims council has violated the Open Governmental Proceedings Act on September 21 and October 5 and asks that any actions taken then be annulled.
On October 5, the complaint says, council also purported to employ a Charleston law firm to represent them. The petition asks that the employment also be annulled.
As a part of count two, Baber asks that the judge assigned to the case, Joanna Tabit, consider whether criminal charges should be lodged against council for violating the open meetings act.
Count three says the mayor has suffered irreparable harm to which he has no adequate remedy at law.
Count four notes that McCuskey is the administrator of the p-card program. The petition says, despite the mayor’s “self-reporting” and accounting for all but three percent of the purchases on the card, McCuskey has refused to conclude that there is no wrongdoing on Baber’s part.
The McCuskey spokesman said the office is prohibited from discussing on-going investigations or even confirming that there are any. “We don’t see what the auditor has done wrong,” said the spokesman, adding that the auditor had not yet seen the complaint.
“This inexplicable silence and apparent inaction constitutes part, if not all, the rationale for the extralegal actions of the (council) as described in the first three counts,” the petition asserts. It adds that the inaction by the auditor has also contributed to the irreparable harm the mayor is suffering.
Therefore, Baber’s petition asks for a writ of mandamus to order the auditor to complete any investigation “and announce any finding regarding the same immediately.”
The petition asks for a further writ of prohibition for McCuskey to conduct, complete and immediately announce his office’s conclusion.
Finally, in count five, the petition says it was announced by council that the auditor will immediately begin an audit of all the town’s books for the past three years, since no annual audit was done. Although Baber was not even mayor during two of those three years, the petition says the veiled threat of such audits “bears ominously on (Baber),”
Baber also is requesting his attorney fees and legal expenses be reimbursed.
Tabit’s office said a hearing date would be set later today.