                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


George Papandreas, et al.,                                                       FILED
Petitioners Below, Petitioners
                                                                             January 27, 2017
vs) No. 16-0619 (Monongalia County 15-C-650)                                   RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
William Kawecki, Jennifer Selin,
Nancy Ganz, and Marti Shamberger,
Respondents Below, Respondents


                              MEMORANDUM DECISION
       Petitioners, George Papandreas, et al., by counsel Mark A. Kepple, appeal the June 10,
2016, “Order Denying Petition to Remove Pursuant to W.Va. Code § 6-6-7,” entered by an
appointed three-judge panel sitting in the Circuit Court of Monongalia County. Respondents
William Kawecki, Jennifer Selin, Nancy Ganz, and Marti Shamberger, by counsel Lonnie C.
Simmons, filed a response. Petitioners filed a reply.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.1

                             Factual and Procedural Background

      This appeal involves a petition to remove four members of the City Council of the City of
Morgantown, West Virginia, filed pursuant to West Virginia Code § 6-6-7.2 Specifically, on


        1
         On December 14, 2016, respondents filed a motion for an expedited ruling with this
Court. Petitioners filed a response objecting to the motion inasmuch as an expedited ruling might
deprive them of the opportunity for oral argument. The issuance of this Memorandum Decision
renders respondents’ motion moot.
        2
           West Virginia Code § 6-6-7 governs the procedure for the removal of county, school
district, and municipal officers. The statute was recently amended in 2016. However, the statute
as amended in 1985 is applicable to the present case. West Virginia Code § 6-6-7(a) [1985]
provided, in relevant part, as follows:

(continued . . .)
                                                1

October 8, 2015, Petitioner George Papandreas,3 and other voters and residents of the City of
Morgantown, filed a petition to remove Respondents William Kawecki, Jennifer Selin, Nancy
Ganz, and Marti Shamberger from office. The petition centered on the following three alleged
instances of misconduct by one or more of respondents: (1) a March 22, 2015, email sent to over
200 recipients (including over 50 public employees) by Respondent Kawecki, in which he
solicited campaign contributions or volunteers for himself and/or the Morgantown Together
Political Action Committee (“PAC”)4 without including a disclaimer for public employees to
disregard; (2) improper interference with efforts to redistrict Wards Four and Seven in the City
of Morgantown; and (3) interference with the administration of the City, in violation of the City
of Morgantown Charter, by contacting City employees directly regarding various aspects of City
operations. On or about December 1, 2015, Petitioner Papandreas filed a motion to amend the
petition to also allege that Respondent Selin failed to report the distribution of a laminated sheet
listing write-in candidates that was discovered at the polling place where she votes.

       On November 2, 2015, an order was entered in Circuit Court of Monongalia County,
entered that found that the petition conformed to the requirements of West Virginia Code § 6-6­
7(b) [1985] and requested the appointment of a three-judge panel to preside over the matter.
Thereafter, then Chief Justice Margaret L. Workman appointed the Honorable John Lewis
Marks, Jr., the Honorable Richard A. Facemire, and the Honorable David H. Wilmoth, to
comprise the three-judge panel (“Panel”) and to rule upon the removal petition.




       Any person holding any county, school district or municipal office . . . may be
       removed from such office in the manner provided in this section for official
       misconduct, malfeasance in office, incompetence, neglect of duty or gross
       immorality or for any of the causes or on any of the grounds provided by any
       other statute.
       3
          In their brief to this Court, respondents object to the style of the case as used in this
Court’s scheduling order, as well as to Petitioner Papandreas’s characterization that he is the sole
petitioner in this matter. Respondents state that Petitioner Papandreas failed to establish below
that he was a Morgantown resident and a voter in the last election when he signed the petition, as
required by West Virginia Code § 6-6-7(b)(2) [1985]. Respondents contend that the only
legitimate petitioners in this matter are Ronald Bane, Wesley Nugent, and Jay Redmond, who are
the other three members of the Morgantown City Council, and who, by virtue of their elected
position, had the authority to sign and prosecute the removal petition. These issues do not appear
to have been addressed by the three-judge panel below, and additionally, their resolution on
appeal would not alter the outcome of the removal petition. Accordingly, we decline to address
them in this decision.
       4
         According to the email, Morgantown Together PAC endorsed all four respondents as
candidates for City Council.


                                                 2

       The Panel conducted an evidentiary hearing on February 19, 2016.5 The Panel heard
testimony from Petitioner Papandreas; First Sargent Scott Carl; Former Public Works
Department Assistant Director Lyle Matthews; City employee Glen Kelly; Morgantown City
Manager Jeff Mikorski; Heather Carl; Linda Tucker, Office of the City Clerk; Wards and
Boundary Commission co-chair Guy Panrell; Damien Davis; Roger Banks; Don West; and
Wesley Nugent. Respondents were represented by counsel, but were not present in person for the
hearing.

        With respect to the March 22, 2015, email sent by Respondent Kawecki, the Panel found
that he had been subsequently advised by the legal department of the West Virginia Secretary of
State’s Office that the communication was improper. Specifically, the Secretary of State’s
Assistant General Counsel, Timothy G. Leach, wrote to Respondent Kawecki and noted that
Respondent Kawecki had expressed contrition for what he admitted was an unintended violation.
Mr. Leach further noted that, given the minimal objections received from the public employees
who received the email, the Office of the Secretary of State preferred to treat the matter as an
“educational experience” for Respondent Kawecki and other officials, rather than seek
prosecution. Further, the Panel found that Respondent Kawecki had apologized in the press for
the email and admitted that sending it was a mistake. The Panel found that “the March 22, 2015,
Kawecki email violation is de minimis and does not warrant the draconian sanction of the
Respondents’ removal from office.”

        The Panel next considered the allegation that respondents improperly influenced
redistricting efforts for the Fourth and Seventh Wards, which were represented by Respondents
Selin and Ganz, respectively. With respect to proposed adjustments to the City’s wards, Section
7.05(d) of the Morgantown City Charter provides as follows:

       (d)     Specifications. Except as otherwise provided in Section 10.05, the ward
       boundaries shall be adjusted from time to time in accordance with the following
       specifications:

               (1) Each ward shall be formed of contiguous territory, and its boundary
       lines shall follow the precinct lines and the center lines of streets wherever
       practicable.

               (2) Each ward shall contain as nearly as practicable the same number of
       qualified voters, determined from the registration for the last statewide general
       election. This specification shall not be construed to require the sacrifice of
       compactness of wards for the sake of achieving quality of numbers of registered

       5
          Through their counsel, respondents moved to dismiss the petition inasmuch it alleged
conduct that took place in respondents’ prior terms of office. The Panel noted that the parties
“strenuously argued” this issue; however, despite respondents’ objection, the Panel allowed
petitioners to present their evidence. The Panel concluded that the issue need not be addressed
because “the particular acts complained of [by petitioners] do not rise to the level to warrant
Respondents’ removal from office regardless of when those acts occurred.”


                                               3

       voters among the seven wards of the City. The report shall include a map and
       description of the boundaries of each of the wards.

Sections 7.05(e) and (f) permit the Council to approve or disapprove the Ward Boundary
Commission’s report/recommended plan and to introduce an alternate plan of its own in the
event that it disapproves of the Commission’s plan.

       The crux of petitioners’ allegation appears to be that, in 2014, the City’s Wards and
Boundary Commission proposed redistricting the Fourth and Seventh Wards in such a way that
would decrease the disparity in the number of voters in each ward, but that would also have put
Respondents Selin and Ganz in the same ward, meaning they could not serve together on the
Council. Petitioners alleged that respondents rejected that proposal in favor of an alternate
proposal that did not achieve the same decrease in voter disparity, but that maintained
Respondents Selin’s and Ganz’s positions on the Council. Morgantown City Council elections
are non-partisan and “at-large,” meaning that everyone in the City has the right to vote for a
council member for each of the City’s seven wards.

        The Panel heard evidence that the Office of City Clerk requested guidance from the West
Virginia Ethics Commission as to whether an affected councilperson could vote on a boundary
adjustment that would compromise his or her prospects for re-election. The Ethics Commission
responded with an advisory opinion in which it concluded that the Ethics Act did not bar a
councilperson from voting under such circumstances. Additionally, the Panel received evidence
that, apparently in response to an inquiry from Petitioner Papandreas, Monongalia County
Prosecuting Attorney Marcia Ashdown opined, in writing, that petitioners’ allegation with
respect to the wards and boundary issue did not constitute “malfeasance in office” under West
Virginia Code § 6-6-7(b). Accordingly, the Panel stated that it “cannot find that the Respondents’
actions as concerns the Wards and Boundary Commission proposal and subsequent voting are
unlawful or unethical in any way to warrant removal from office.”

       The final allegation in the petition was that respondents violated Section 2.05 of the City
Charter, which prohibits “interference with administration.” The section states, in part, as
follows:

       [T]he council or its members shall deal with City officers and employees who are
       subject to the direction and supervision of the City Manager solely through the
       Manager, and neither the Council nor its members shall give orders to any such
       officers or employees, either publicly or privately. Violation of this provision
       shall constitute grounds for removal from office.

        Petitioners alleged that in 2013 and 2014, Respondents Ganz and Shamberger contacted
City personnel by email to address parking and street issues, area crime, placement of a
residence upon a vacation “house watch” list, and other pertinent matters; that respondents
ordered City Manager Mikorski to remove certain emails from a response to a Freedom of
Information Act request sent by Petitioner Papandreas’ counsel; that Respondent Selin advised
City management to selectively enforce the City’s “porch couch ban,” and prohibited discussion
of legal options surrounding the “truck ban” ordinances; that Respondent Shamberger contacted

                                                4

the City’s Public Works Department to request snow removal on her street; and that a laminated
card listing write-in candidates was found at Respondent Selin’s polling place.

        The Panel reviewed all of the pertinent email communications, heard testimony regarding
the same, and concluded that there was insufficient evidence that respondents acted improperly
or that their communications constituted “interference with administration” as contemplated by
Section 2.05 of the City Charter.6 The Panel found that respondents “did nothing that local
citizens themselves could not do – contact City personnel and officials to address” City
operations. The Panel further found that the emails did not constitute “meddling in another’s
affairs” or “an obstruction or hindrance” that would keep City employees from performing their
duties. With respect to the list of write-in candidates found at Respondent Selin’s polling place,
the Panel found that, according to the City Council minutes, Respondent Selin denied any
involvement in the matter. The Panel further found that the police investigated the matter and
exonerated Respondent Selin of any wrongdoing.

        By order entered on June 10, 2016, the Panel denied the removal petition. After citing the
relevant law regarding removal of public officers, the Panel concluded that the facts were not in
dispute and that “Petitioner George Papandreas has failed to prove that the acts rise to the level
to justify removing from office officials who have been duly elected by the electorate.”
Petitioners now appeal to this Court.

                                           Discussion

        This Court has held that “[t]he remedy for the removal from office of a public officer is a
drastic remedy and the statutory provision prescribing the grounds for removal is given strict
construction.” Syl. Pt. 2, Smith v. Godby, 154 W. Va. 190, 174 S.E.2d 165 (1970). Removal of a
public official pursuant to West Virginia Code § 6-6-7 requires that the charge against the
official “must be established by satisfactory proof.” Id. at Syl. Pt. 3. “To warrant removal of an
official pursuant to [West Virginia Code § 6-7-7], clear and convincing evidence must be
adduced to meet the statutory requirement of satisfactory proof.” Syl. Pt. 9, Evans v. Hutchinson,
158 W. Va. 359, 214 S.E.2d 453 (1975). We note that the Panel accepted the facts as undisputed,
but determined that respondents’ actions, in large part, did not rise to the level warranting their
removal from their elected offices. In this regard, syllabus point five of Evans states as follows:

       [i]n a removal proceeding, a defense predicated upon the De minimus principle is
       essentially one of fact, the resolution of which by a fact finder would be entitled
       to great weight by this Court. Hence, where there is conflicting evidence of
       wrongdoing, and it appears that the trial court chose to give greater weight to the
       credible evidence concerning the totality of the wrongful activities knowingly
       conducted, the trial court’s finding in such regard will be sustained on appeal.

       6
          Interestingly, Petitioner Papandreas testified to his belief that “anyone in Morgantown
has the ability to contact anyone in the City in any regard that they want to with the exception of
seven people,” referring to the seven members of the City Council. The Panel rejected this
interpretation of the City Charter.


                                                5

Id. at Syl. Pt. 5. Finally, “[q]uestions of law are subject to de novo review.” Syl. Pt. 2, in part,
Walker v. W. Virginia Ethics Comm’n, 201 W. Va. 108, 492 S.E.2d 167 (1997). With these
standards in mind, we turn to petitioners’ arguments on appeal.

        On appeal, petitioners raise the following seven assignments of error: (1) the Panel erred
by failing to find that respondents violated West Virginia Code § 6-6-7 by failing to appear at the
February 19, 2016, hearing; (2) the Panel erred by not holding the Rules of Civil Procedure
applicable to West Virginia Code § 6-6-7 proceedings; (3) the Panel erred by refusing to allow
petitioners to conduct discovery and depositions, even if the Rules of Civil Procedure do not
apply; (4) the Panel erred by failing to find the actions of respondents in past terms to be subject
to West Virginia Code § 6-6-7 removal in their current terms; (5) the Panel erred by finding
Respondent Kawecki’s solicitation of funds to be de minimis, and by finding that respondents did
not make a sufficient evidentiary showing that would warrant Kawecki’s removal; (6) the Panel
erred by applying an incorrect standard of law by finding respondent’s actions “lawful” and
“ethical,” and erred by failing to find that respondents committed malfeasance by redistricting
Wards Four and Seven in a manner incongruous with City Charter; and (7) the Panel erred in
finding that respondents did not interfere with City administration, in violation of the City
Charter, which is malfeasance under West Virginia Code § 6-6-7.

        First, petitioners claim that respondents violated West Virginia Code § 6-6-7, and
presumably should have been removed from office by the Panel, because they did not personally
appear at the evidentiary hearing. The record reflects that, prior to the evidentiary hearing,
whether respondents intended to voluntarily appear at the hearing was an issue. Despite this fact,
as the Panel noted in its order, “[petitioners] did not request [that] subpoenas be issued from the
Circuit Clerk to the individual [respondents] to secure their attendance.” Inasmuch as petitioners
contend that respondents’ failure to appear at the hearing constituted an admission of the
allegations, this Court has held that petitioners in a removal action must prove their allegations
regardless of whether those allegations are denied by answer or not. See Hunt v. Allen, 131 W.
Va. 627, 629-30, 53 S.E.2d 509, 511 (1948). Therefore, under the facts of the present case, we
find no error by the Panel with respect to its handling of respondents’ failure to attend the
evidentiary hearing.

        Petitioners’ second and third assignments of error challenge the Panel’s determination
that the Rules of Civil Procedure do not apply to removal proceedings, and further denying
petitioners the opportunity to conduct some form of discovery outside of the requirements of the
Rules. As respondents have noted, there are numerous procedural requirements that are unique to
removal petitions filed under West Virginia Code § 6-6-7, as compared to a traditional civil
action. We also note that throughout the different amendments to our removal statute, the
legislature has not expressly indicated that the Rules of Civil Procedure shall govern removal
proceedings. However, what is important to our resolution of petitioners’ arguments in these two
assignments of error is that petitioners fail to explain how the outcome would have been different
had the Rules applied or had they been permitted to conduct discovery. Stated another way,
because the Panel found that the petitioners’ allegations were essentially undisputed, we fail to
see what evidence petitioners were deprived from obtaining that would have helped their case.
Accordingly, for the purposes of resolving the instant appeal, we need not address the question



                                                 6

of the applicability of the Rules of Civil Procedure or whether petitioners were entitled to
otherwise conduct discovery.

        Next, petitioners argue that the Panel erred by failing to find that the actions of
respondents in past terms were subject to removal in their current terms. In contrast, respondents
implicitly argue that the Panel erred by allowing petitioners to present evidence of alleged
misconduct from respondents’ past terms. Indeed, the Panel did not definitively address the
question, despite the respondents filing a motion to dismiss. This Court has held as follows:

        As a general rule offenses committed or acts done by a public officer during a
        previous term of office are not cause for removal from office in the absence of
        disqualification to hold office in the future or additional penalty imposed by law
        upon the person removed from office.

Syl. Pt. 1, Smith.

         Petitioners argue that the logic behind our holding in Smith was that, when the public
elects an official, it is said to have forgiven the official’s past misconduct. Petitioners contend
that this reasoning does not apply where, as in the present case, the term is for only two years.
However, as both parties agree, the Panel heard all of the evidence that petitioners sought to
introduce despite respondents’ motion to dismiss. Therefore, under these facts, there is no need
for this Court to address the issue any further.

        Petitioners’ fifth assignment of error challenges the Panel’s findings and conclusions
regarding the email sent by Respondent Kawecki. Petitioners argue that the single email was a
blatant violation of West Virginia Code §§ 3-8-12(c) and (k), which state as follows:

        (c) A person may not, in any room or building occupied for the discharge of
        official duties by any officer or employee of the state or a political subdivision of
        the state, solicit orally or by written communication delivered within the room or
        building, or in any other manner, any contribution of money or other thing of
        value for any party or political purpose, from any postmaster or any other officer
        or employee of the federal government, or officer or employee of the State, or a
        political subdivision of the State. An officer, agent, clerk or employee of the
        federal government, or of this state, or any political subdivision of the state, who
        may have charge or control of any building, office or room, occupied for any
        official purpose, may not knowingly permit any person to enter any building,
        office or room, occupied for any official purpose for the purpose of soliciting or
        receiving any political assessments from, or delivering or giving written
        solicitations for, or any notice of, any political assessments to, any officer or
        employee of the state, or a political subdivision of the state.

        ***

        (k) A person may not solicit any contribution, other than contributions to a
        campaign for or against a county or local government ballot issue, from any

                                                 7

       nonelective salaried employee of the state government or of any of its
       subdivisions: Provided, That in no event may any person acting in a supervisory
       role solicit a person who is a subordinate employee for any contribution. A person
       may not coerce or intimidate any nonelective salaried employee into making a
       contribution. A person may not coerce or intimidate any nonsalaried employee of
       the state government or any of its subdivisions into engaging in any form of
       political activity. The provisions of this subsection may not be construed to
       prevent any employee from making a contribution or from engaging in political
       activity voluntarily without coercion, intimidation or solicitation.

        While the email may have been improper, this Court has never held that every violation
of this statute requires the automatic, mandatory removal of the offending official from office.
To the contrary, we have held that “[t]he remedy for the removal from office of a public officer
is a drastic remedy and the statutory provision prescribing the grounds for removal is given strict
construction.” Syl. Pt. 2, Smith. Based on the evidence before the Panel that the Secretary of
State’s Office opted not to pursue charges; that there were few objections to the email; and that
Respondent Kawecki noted his mistake and apologized, we find no error in the Panel’s
characterization of the email violation as de minimis.

        In their sixth assignment of error, petitioners argue that the Panel erred in failing to order
the removal of respondents as a result of respondents’ rejection of the Ward and Boundary
Commission’s planned adjustment to Wards Four and Seven, and respondents’ submission of an
alternate plan allegedly for the sole purpose of preserving Respondents Ganz’s and Selin’s seats
on the Council. We reject petitioners’ argument. First, Sections 7.05(e) and (f) of the City
Charter authorize the Council to both (1) reject the Wards and Boundary Commission’s proposed
plan, and (2) propose its own plan for approval. That is what happened here, with the public’s
knowledge prior to the 2015 election, in which respondents had opposition from only write-in
candidates. Second, both the State of West Virginia Ethics Commission and the Monongalia
County Prosecuting Attorney reviewed relevant aspects of the situation and concluded that there
was nothing unlawful or unethical about respondents’ actions. Certainly, with this undisputed
evidence before it, the Panel did not err in finding that respondents’ actions in this regard did not
warrant removal from office.

       Petitioners’ final assignment of error challenges the Panel’s findings and conclusions that
respondents did not violate Section 2.05 of the City Charter, which prohibits “interference with
administration,” and states as follows:

       [T]he council or its members shall deal with City officers and employees who are
       subject to the direction and supervision of the City Manager solely through the
       Manager, and neither the Council nor its members shall give orders to any such
       officers or employees, either publicly or privately. Violation of this provision
       shall constitute grounds for removal from office.

The section further provides, in part, that the Council members are prohibited from individually
influencing the official acts of any City employee and from interfering with any City employee’s
performance of his or duties.

                                                  8

        The Panel noted that the terms “order” and “interference” were undefined in the City
Charter. Therefore, in order to examine petitioners’ allegations, the Panel looked to Black’s Law
Dictionary, which defined “order” to mean “command, direction, or instruction,” and
“interference” to mean “the act of meddling in another’s affairs” or “an obstruction or
hindrance.” Black’s Law Dictionary (10th ed. 2014). Petitioners argue that the Panel substituted
its own definitions for these terms; however, given that the terms are undefined in the Charter,
this Court is hard-pressed to find error in the Panel’s reference to Black’s Law Dictionary.

        Armed with these definitions, the Panel reviewed the emails submitted at the hearing in
the Joint Exhibit Notebook, heard testimony from the recipients of some of the emails and from
other involved City officials, and concluded that, while certain respondents had communicated
directly with City employees from time to time, those communications did not command, direct,
or instruct the employee to act or not act. Additionally, the Panel was unconvinced that these
emails, or any of the other conduct alleged in the removal petition constituted a meddling,
hindrance, or obstruction with City operations. As for the allegation regarding a list of write-in
candidates found at Respondent Selin’s polling place, the Panel found that the police had
investigated the matter and exonerated Respondent Selin of any wrongdoing. Accordingly, this
Court finds no error in the Panel’s conclusions that petitioners failed to establish that respondents
“interfered with administration” in violation of the City Charter.

      For the foregoing reasons, we affirm the “Order Denying Petition to Remove Pursuant to
W.Va. Code § 6-6-7” entered by the Panel on June 10, 2016.

                                                                                          Affirmed.

ISSUED: January 27, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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