City attorney: Keyser acted properly on vote to rescind

Mineral Daily News-Tribune
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By Liz Beavers

Tribune Managing Editor

KEYSER - Reading a statement prepared by one of the city’s attorneys, mayor Damon Tillman said the council acted correctly in rescinding the appointment of Curtis Perry to the vacant seat on council.

The mayor also announced that he plans to make another appointment at the next council meeting.

The controversy over the legality of Perry’s appointment, made during the Nov. 18 council meeting, was sparked by the council’s vote to rescind that motion on Dec. 9. Perry questioned the validity of the vote, correctly pointing out that a two-thirds vote had not been reached since two council members voted for, one against, and one did not vote.

Council member Jim Hannas, who made the motion to rescind, then made the motion again at the Jan. 27 meeting, and the motion passed by a 3-1 vote.

Perry again contested the vote, however, citing a section of Robert’s Rules of Order which states that a motion cannot be rescinded if the person elected had “been officially notified” of the original action.

Wednesday, however, the prepared statement by attorney Scott McClure stated that the appointment had not be made official because Perry had not taken the oath of office within the required time frame.

“At no time prior to the vote on the rescission had Mr. Perry qualified to serve by taking the oath office,” McClure said in the statement read by Tillman.

The statement went on to say, “Accordingly, he was only a prospective appointee and not yet a member of the council.”

According to McClure, state code requires the oath of office to be taken within 20 days, but the city’s charter requires the action within 10 days.

“Mr. Perry did not subscribe to the oath required of him and by the express provisions of our charter, this fact alone vacates the position as a matter of law,” McClure said.

“The failure to take the oath of office within ten days from the date of appointment renders the appointment a nullity and vacates the position as a matter of law.   Accordingly, council will now begin the process of filling the vacant council position as soon as possible.”

After watching the council meeting live streamed on the city’s Facebook page, Perry told the News Tribune he feels the fault lies with the city not coming forth to administer the oath in time.

“Tillman denied me the opportunity to take the oath,” he said. “The city attorney had to know he left the most important question unanswered.”

Tillman said he would have a recommendation for the vacant council seat at their next meeting on Feb. 24.