Judge hears Beckley city manager ordinance lawsuit

Josephine Moore, The Register-Herald, Beckley, W.Va.
Updated ·5 min read

Apr. 19—The interpretation of Beckley's charter, established nearly a century ago, was debated Friday during a hearing in a Raleigh County courtroom as part of a lawsuit against the city's recently passed city manager ordinance.

The lawsuit, filed by Doug M. Epling, a local icon for his ownership of various coal mining operations and the West Virginia Miners Baseball Club, takes issue with Beckley's city manager ordinance due to the powers it takes away from the mayor, arguing the move requires a vote by the people.

Beckley's attorney countered by saying the city's charter negates the need for a public vote because it grants the council the authority to switch to a city manager government and transfer powers from the mayor to a city manager.

Hearing the city's motion to dismiss the lawsuit was Raleigh County Circuit Judge Andrew Dimlich, who asked if a case like this had even come up before.

"No, your honor. I believe this is a matter of first impression," said Karen McElhinny, the attorney representing the city of Beckley.

"I have not found a case on it, your honor," said Debra Varner, Epling's attorney.

"Amazing," Dimlich replied.

McElhinny said Beckley is unique because its charter outlines the steps the city would need to take should it choose to transition from a strong mayor government to a city manager government.

"As far as we know, no other city in West Virginia has that type of charter, but that's always been the charter here in Beckley," McElhinny said.

She added that the charter, passed in 1927, also received approval from the West Virginia Legislature.

Varner said they're not disputing the city's ability to switch to a city manager government but argued that the city doesn't have the authority to change the powers the charter grants to the mayor.

"What essentially the city is saying is that they as the council can change the form of government without ever taking it to the voters because it's already in their charter," Varner said. "... And so our point is, it has to go to the voters to decide what the mayoral powers will be. And it's as simple as that."

Varner and McElhinny supported their arguments by citing the same two sections in Beckley's charter, though each interpreted them differently.

The two sections in the charter that attorneys drew attention to were Section 7a — Authority to appoint city manager; effect of appointment and Section 17 — Powers and duties of mayor, and of city manager if and when appointed; who acts in absence of mayor.

Section 7a states that city council "may appoint a city manager to serve at the pleasure of the council."

It goes on to say that the council will decide the powers and duties of the city manager by ordinance.

Section 17 identifies the mayor as the "chief executive officer" of Beckley whose duty is to "see that the laws and ordinances of the city and the resolutions and orders of the council are enforced; that peace and good order of the city are preserved, and that the person and property therein are protected."

It goes on to say that should council appoint a city manager, it may "delegate to (the city manager) each of the above powers as in the council's opinion it is advisable or necessary to do."

McElhinny said this sentence, in particular, makes it "entirely appropriate for (council) to delegate duties previously performed by the strong mayor to the city manager."

"So the city would still have a mayor, the city would have a city manager that will take on some of those duties, which is entirely permissible under the West Virginia constitution," McElhinny said.

Varner's assessment of the section was that since the charter identifies the mayor as the "chief executive officer," taking that authority away from the mayor would require a change in the charter.

She added that to amend a charter, state code dictates that it must receive approval from the public through a vote during an upcoming municipal election.

Varner also concluded that Sections 7 and 17 conflict with each other, which can only be resolved by a public vote.

Following the hearing, Epling said this was just another instance of the city of Beckley attempting to silence the people's voices.

"The people have not had a say-so in this government for some time," Epling said. "Decisions (are) being made, and the general population has not had a say-so, so they're just at the whims of those council people ... And I just think the people need to be represented, and somebody needs to take up the fight for them."

Beckley Mayor Rob Rappold, who attended the hearing, said he felt McElhinny did a "great job" at explaining the city's side and that everything was now in the hands of the judge.

Dimlich said he would do more research into the sections highlighted by the attorneys before making his ruling.

He did not give a timeframe for when he would make that determination.

Meanwhile, the city council is moving ahead with staffing the new form of government. It is scheduled to vote Tuesday on hiring one of two recruitment firms to find candidates for the city manager position.

A city committee charged with recruiting a city manager unanimously recommended hiring a recruitment firm from Virginia over a Beckley company.