by Ron Gregory
ronjgregory@gmail.com
CHARLESTON – Extraordinary writs of mandamus and prohibition were both denied in Kanawha County Circuit Court today. The motions had been filed by South Charleston attorney Richard Robb against State Auditor J.B. McCuskey and Richwood city council.
Circuit Judge Joanna Tabit wasted little time dismissing McCuskey from the case. In response to questions from Tabit, Robb, who represents Mayor Bob Henry Baber, said he and his client have now been informed that the auditor’s office is diligently working on the audit of the city’s state purchasing card. Robb said when the writ of mandamus was filed, neither he or his client was aware of the status of the investigation.
The attorney said he was informed by the auditor’s attorney that “they will be wanting to meet with us (he and Baber) in about two weeks. We believe them to be honorable people who will do as they say.”
Based on that, Tabit said there was no longer a need for mandamus proceedings concerning McCuskey. Dismissing him from the case then led to the later conclusion that there was no longer venue for the case in Kanawha. Instead, Tabit cited West Virginia Code 53-1-2 in saying the case could appropriately be heard in Nicholas County.
Attorney Jared Tully of the firm Frost Brown Todd represented the council members. The Corridor Chronicle has filed a Freedom of Information request with the town for records of any proceedings in which Tully was hired and for a copy of any contracts between his firm and the city. Marty Wright represented the state auditor, who was present for the hearing.
During the court discussion, there was still confusion as to whether Baber had sought to stop an additional audit of the city’s finances for a three-year period. Robb repeatedly explained that his motion was not to prohibit that audit but to “seek a separation between the one year during the period that my client served as mayor and the other two years.”
Robb said, “we want that audit done as quickly as possible, too. We just don’t want council to be able to use a portion of the audit that does not pertain to Mayor Baber to keep him on this so-called ‘administrative leave.’”
City council claims to have placed the elected mayor on such leave after learning that some of the purchases made with the state card were inappropriate. Baber has said that he is simply “a poor record keeper” and all purchases made on the card were for city use. At today’s hearing, he maintained that he and his accountant have now accounted for 97 percent of the purchases.
Many in Richwood believe a majority of council has used the auditor’s investigation as an “excuse” to try to oust Baber. Neither the city charter nor state law permit council to place an elected mayor on administrative leave.
Baber said the city is still paying him his salary as mayor.
Robb said, after the hearing, that he had “recommended to my client that we file similar action in Summersville.” He said he would confer with Baber concerning the matter.