by Richard Kerns
rkerns@newstribune.info
tribune staff writer
KEYSER — An attorney for the sewage treatment plant supervisor fired last month by the city of Keyser is asking Circuit Court to reverse the dismissal, saying the matter should have been handled by the Sanitary Board, not the City Council.
Appearing at a Wednesday-morning hearing before Judge Lynn Nelson, Morgantown attorney Jacques Williams sought a writ of prohibition that would effectively remand the dismissal of James Hoffman back to the three-member Sanitary Board.
“The decisions and responsibilities in terms of the operation and maintenance of the sewage facility are to be vested in the sanitary board,” Williams said in an opening statement at the 9 a.m. hearing.
For its part, the city argued at the hearing that responsibility for employee management ultimately rests with the city council, which voted 4-1 on March 20 to dismiss Hoffman and Jeremy Miner, his assistant at the treatment plant and a partner in their water-testing business, J&J Environmental Service.
The city also detailed for the first time some of the charges lodged against Hoffman, including using city facilities and equipment to operate his own business, falsifying time cards, threatening other workers not to disclose his activities, and directing city staff to assist with the operation of his business.
The proceeding only involved Hoffman, not Miner, who has appealed his dismissal through city government. A decision is expected on Hoffman's case by the end of the month.
To support his argument that the Sanitary Board was wrongly bypassed in Hoffman's firing, Williams called WVU Law Professor Patrick McGinley, a specialist in administrative law. He described bodies such as the sanitary board as “the first line of management and control” in specialized governmental operations, and said they were set up in part to remove politics from such operations.
Attorneys for the city countered that Hoffman was an employee of the city of Keyser, not the Sanitary Board; that he is paid by the city and, like every other city worker, is an at-will employee who can be fired without cause. They also said the writ of prohibition was an “extraordinary remedy” that should only be employed to address “substantial, clear-cut errors” that do not exist in the Hoffman case.
City Attorney John Athey, who was assisted by labor-law specialist Susan Snowden, an attorney from Martinsburg, disputed the notion that city code or state law invests bodies such as the Sanitary Board with the power to fire employees. Language in the law says such boards “may” handle employee matters, not that they “shall,” he noted.
“Nowhere in there does it expressly confer upon the board the power to terminate an employee,” Athey said.
The city called several witnesses who detailed the alleged misconduct that led to Hoffman's dismissal, including a co-worker, the city accountant and the city administrator. Hoffman and Miner also testified.
The dispute centers on whether the two men operated their business on city time, using city-owned equipment and facilities at the water-testing lab that is part of the treatment plant complex. In addition to its own water sampling, the city conducts tests for numerous water companies and other entities, with revenue from the tests serving as income for the city.
Time and again, Snowden pressed witnesses for details about the operation of J&J Environmental, asking how such a business could function without an office, a phone, a copier, chemicals or testing equipment.
“To my knowledge, the equipment that was used was city equipment,” said Mike Kesecker, a co-worker at the treatment plant who provided a first-hand account of activities there.
Kesecker, a five-year employee who is the acting treatment-plant supervisor in the absence of Hoffman, said J&J's paperwork “was done out of the lab,” and employees were occasionally told to “stuff envelopes” for the company's monthly billing.
“Who directed you to do that work?” Snowden asked.
“Mr. Hoffman,” Kesecker replied.
While traveling to other communities to collect water samples to be tested at the lab, the workers would sometimes divert to a J&J customer, where they would perform maintenance duties that could last from a few minutes to as much as 30 minutes, while “on the clock” for the city.
Kesecker said he “went along” with such practices as a relatively new employee at the plant, but over the years his concerns increased. He said he spoke to Hoffman last summer about the activities of J&J, urging him to “be careful.” Since Hoffman and Miner were dismissed, Kesecker said staff field as many as 10 calls a day for J&J at the treatment plant.
In response to questions from Judge Nelson, Kesecker said he is paid by the city, and that the only member of the the three-member Sanitary Board he has ever met is Mayor Glen “Bunk” Shumaker.
City Accountant Mike Ryan testified that numerous J&J invoices document work that was done for the company while Hoffman's time sheet showed that he was on the clock for the city at those times. He said the city received no payments from J&J for rental of equipment or leasing of office space. Ryan also said financial statements for J&J found on city-owned computers showed the company made $55,000 last year, with only minimal expenses.
City Administrator Deborah Pamepinto said she followed city policies in terminating the two employees, and that their offenses included falsifying time cards, and using city-owned vehicles, fuel, buildings and supplies for their own use.
Hoffman's attorney challenged the city on that process, saying he was never given a detailed list of his alleged offenses. He also said the city did not meet the notification requirements set forth for conducting the in-house employee appeal, which Miner pursued but Hoffman did not.
In questioning Kesecker, Williams asked whether other city employees had used city-owned equipment, and whether such practices were allowed by the city council. Noting that Hoffman had used J&J-owned “Quick Book” software for billing both city and J&J customers, he asked whether the city had reimbursed Hoffman for the use of that software, as the city feels it should have been paid for J&J's use of city equipment.
Under questioning from his attorney, Hoffman denied telling employees to stuff envelopes, and said he never used city vehicles for his business. Hoffman also denied performing J&J business on city time, saying he usually arrived at the treatment plant an hour and a half early to work on his own business.
“Did you do anything you are ashamed of?” Williams asked.
“No sir,” Hoffman said.
Judge Nelson said he would issue a ruling on the hearing within two weeks.
