TheTimesTribune.com, Corbin, KY

Local News

March 21, 2014

‘Civil action’ filed against city, council

Appeal concerns recent vote to remove former mayor Thompson from office

CORBIN — By John L. Ross / Staff Writer

A new chapter began Thursday for Barbourville City Council members — this one could see the six of them in court.

A “civil action” was filed in Knox County Circuit Court clerk’s office Thursday against the City of Barbourville and its six council members — newly-appointed Mayor Darren West, and members Ronnie Moore, Sherman Lawson, Gary Williams, Wilma Barnes and Janet Hyde.

According to court records, former mayor David Thompson’s attorneys — Billy J. Taylor and Scott M. Webster — have filed an appeal concerning the recent council vote to remove Thompson from office.

And the appeal alleges violations of Thompson’s rights of “due process.”

Thompson was voted out of office March 11 — two days later West was sworn in to fill the seat.

But the upheaval in the city’s government started long before that — it hit critical mass in January after an extensive state forensic audit of the city of Barbourville’s coffers revealed 28 critical findings, several of which allegedly involved the mayor and his wife, Wendy Thompson.

City Attorney Charley Green Dixon was tasked by Thompson to review the 28 findings and implement the recommendations necessary to eliminate errors.

Then on Feb. 24, a public meeting was called by Thompson to review the findings for council members and have Dixon explain what recommendations had been completed and what steps were being taken to correct the others. That meeting brought dozens of city residents who were concerned about the critical findings.

Less than two weeks later during city council’s regular monthly meeting March 6, council members presented Thompson with a letter apparently signed prior to the meeting asking for his resignation — which Thompson did not do.

Council members stated in their request they based that decision on 11 of the state auditor’s 28 findings.

When Thompson did not resign, a special meeting called by council members was scheduled for March 11 to discuss and vote him out.

However, before that meeting, Thompson’s attorney filed a civil action on his behalf against all six council members, charging them with two violations of the state’s Open Meetings Act — violations which allegedly occurred during the decision process to vote Thompson out of office.

Part of that civil action was to file a motion for an injunction to stop the March 11 meeting, but Taylor said the day after, “I withdrew my motion for an injunction because (it) was only to prevent (the March 11) hearing — so it was basically a moot point to have (the motion hearing).”

“Resources and time were better spent working on gathering the research for the appeal,” he added.

And now, the appeal has been filed — and this appeal charges that the city council violated Thompson’s Constitutional rights when deciding and then voting to oust him from office.

According to the documents filed by Taylor and Webster and signed by Webster, Thompson’s “…statutory rights under (Kentucky Revised Statute) KRS 83A.040 (9) were violated in his removal from office.”

The subsection 9 of that statute states, “Except in cities of the first class, any elected officer, in case of misconduct, incapacity, or willful neglect in the performance of the duties of his office, may be removed from office by a unanimous vote of the members of the legislative body exclusive of any member to be removed, who shall not vote in the deliberation of his removal. No elected officer shall be removed without having been given the right to a full public hearing. The officer, if removed, shall have the right to appeal to the Circuit Court of the county and the appeal shall be on the record. No officer so removed shall be eligible to fill the office vacated before the expiration of the term to which originally elected.”

The court-filed documents also allege that council voted to remove Thompson from office without substantial evidence.

Other allegations made in the filed action include:

— In removing Thompson from office, council members allegedly applied “incorrect rules and incorrect principles of law.”

— Removing Thompson from the mayor’s seat was “not supported by substantial evidence of probative value.”

— The findings used by council members against Thompson allege no facts whatsoever, according to the civil action, “that indicate or even suggest misconduct, incapacity, or willful neglect” of Thompson when he was mayor.

— Evidence used against Thompson “was manifestly insufficient to prove misconduct, incapacity, or willful neglect” while Thompson was mayor.

— The notice of the March 11 special-called meeting and hearing allegedly “was not sufficiently in advance of the meeting…to prepare and obtain witnesses and documents…and was improperly issued, and the meeting was improperly called.” Documents state all these allegations violated KRS 83A.040 (9) and KRS 83A.140.

— Thompson’s constitutional rights under Section 2 of the Kentucky Constitution, which states “..absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority,” were allegedly violated in his removal from the office of mayor.

The attorneys have requested through this appeal that the council members “should be ordered to produce and certify the record on which the…decision and action were made” concerning Thompson’s ousting from office. Further the appeal states that the court “should order the parties to brief the issues immediately thereafter and immediately render a decision on the appeal and review.”

But further allegations were made through this filed appeal, which included references that council members reportedly violated Thompson’s 14th Amendment rights involving due process.

Those allegations include:

— Council members’ actions in removing Thompson from office “were taken ‘under color of state law’ within the meaning of 42 U.S.C (United States Constitution) 1983, and their (council members) actions constitute ‘state action’ within the meaning of the 14th Amendment.

— The investigation and subsequent procedures in which council members decided and voted Thompson out of the mayor’s seat allegedly “were made in violation (of Thompson’s) fundamental right to due process.”

— Further, council members’ alleged “bias, partiality, and unfairness…is so explicit, pervasive, and blatant so as to not allow for any possibility of a meaningful hearing process…” This action also reportedly violates Thompson’s 14th Amendment rights.

— Council members’ complaints concerning Thompson were allegedly “insufficient to warrant removal (of Thompson) under state law and the hearings concerning those (complaints) violated state law” — which also allegedly again violated Thompson’s 14th Amendment rights.

— The evidence they used to remove Thompson allegedly failed to prove misconduct, incapacity or willful neglect — again allegedly violating Section 2 of the state constitution and the 14th Amendment.

— The notices for the hearing and meeting March 11 were alleged to be “inadequate” — another reported violation of Thompson’s 14th Amendment and state rights.

— The charges levied against Thompson by council members allegedly “were insufficient” — leaving Thompson’s removal another violation of the former mayor’s constitutional rights.

— Council members allegedly “prejudged” the charges heard at that March 11 meeting/hearing by participating in previous hearings, “some of which were explicitly and necessarily illegal” and in violation of the state’s Open Meetings Act — and thusly, in violation of state law and the 14th Amendment.

— Notice of the hearing/meeting allegedly “was not sufficiently in advance for (Thompson) to prepare and obtain witnesses and documents…and was improperly issued, and the meeting improperly called…” — which violates Kentucky laws, the state constitution and the 14th Amendment.

— City Council members allegedly “refused” to allow Thompson to present evidence necessary to refute the charges levied against him.

— The March 11 meeting allegedly was “unlawful” because council members reportedly “had previously adjudicated all the issues to be raised,” again violating Thompson’s rights to due process.

— In preparing the March 6 letter given to Thompson and signed by all six members, council allegedly held a “necessary illegal, secret meeting” concerning the mayor’s removal. “(This) is tantamount to bias and prejudgement, and when (council members) sat in judgment of (Thompson), they violated his rights to due process.”

According to the court documents, it is hoped the court would prohibit council from removing Thompson through a “preliminary and permanent” injunction, and reverse the removal.

And put Thompson back in the mayor’s seat.

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