Judge hears injunction request
WHEELING – An Ohio County judge heard arguments Thursday regarding a request for an injunction that would stop or postpone a special Weirton Council meeting that has been scheduled for 6:30 p.m. Tuesday.
Ohio County Circuit Court Judge David J. Sims said he would issue a ruling on the injunction, which would stop council members from hearing the second reading of an ordinance that would enact new categories of the city’s business and occupation tax, before Tuesday’s scheduled meeting.
Council had passed the first reading of the ordinance by a 3 to 2 vote, with an abstention, on June 13. If the ordinance passes a second reading Tuesday, it would become law 30 days later.
Tri-State Medical, Ocean-Air International Inc. and Startrans International Inc. filed the request for the injunction Wednesday in Hancock County Circuit Court.
The Weirton Area Chamber of Commerce has been outspoken about its opposition to the B and O tax. J.J. Bernabei, owner of Tri-State Medical, and Rick Starck, owner of Ocean-Air, are members who were in attendance at a press conference held by the Chamber on June 19.
Among those in attendance at Thursday’s hearing were Bernabei, City Manager Valerie Means, City Attorney Vince Gurrera and City Finance Director Tom Maher.
“We think there are several issues here,” said attorney Kevin M. Pearl, who is representing the plaintiffs. “One would be that Sunshine Law violation, which we think gives you statutory authority to intervene here and stop this. We think there’s an equal protection issue here as well as far as the businesses themselves in regard to the taxation structure as well as the fact that Ward 1 is currently unrepresented. We think there are some Robert’s Rules violations as well. We don’t believe you can have two special sessions on the same topic, which is what has already happened. This next one would be yet a third one on the same issue.”
Pearl added subpoenas already were being served to council members to obtain communications.
The complaint and motion for temporary relief alleges Ward 2 Councilman Chuck Wright, Ward 4 Councilman George Ash Sr. and Ward 6 Councilman David Dalrymple met to discuss the proposed tax privately.
Gurrera said all three councilman have denied meeting privately to discuss the issue.
A gathering of enough council members to constitute a quorum must be open to the public to avoid a violation of Sunshine Law, but the two attorneys seemed to disagree about the definition of a “quorum” in this instance.
“These three members represent a quorum at this time, because Ward 1 is unrepresented and vacant, and one of the members is disqualified from the deliberations by virtue of conflict of interest,” Pearl said.
The Ward 1 seat become vacant when Ronnie Jones resigned from the position on June 10 because of a residential move out of his ward. Council has six weeks from that date to appoint a replacement. If no one is appointed during that period, a special election will take place.
Relating to Jones’ resignation and Ward 5 Councilman George Gaughenbaugh’s abstention, Gurrera argued that “(the Sunshine Law) couldn’t possibly have been violated before last month, because, as of last month, none of these people could have been part of a quorum. So any subpoena that they issue that deals with anything dealing with prior to last month should be voided. It’s still a 3 to 3 vote. An abstention is still a vote.”
Pearl also contended the B and O’s categorized rates are “arbitrary” and “political” in nature, with the lowest rates being placed on “friends of the city.”
“As far as exempting certain people who are friends or not friends of the city – I consider myself a friend of the city, and I am going to be hit harder than most of the other industries. So I do not think they’re picking and choosing. There is not even one group that is paying what the state of West Virginia has said is the maximum amount,” Gurrera pointed out.
He cited Robert’s Rules, which states the city’s by-laws should make a provision for regular and special meetings.
“There is nothing under the city by-laws that in any way says that we can’t do what these councilmen are doing,” Gurrera said. “If we’re not permitted to abide by our normal course of conduct in passing ordinances in this circumstance, the city is going to suffer irreparable harm. We have police officers and firefighters who need to be hired who we can’t hire right now. We have services that we need to provide that we can’t do right now. We are literally borrowing money from one account to put into another account to cover another account because we have certain obligations that we need to fulfill that we can’t fulfill at this time. We also had several informational meetings prior to beginning these ordinances, and those several months of deliberations, conversations and public meetings led to our only solution at this time being the B and O. The city of Weirton doesn’t want a B and O tax. We just aren’t given any other opportunities by the state but to enforce the B and O tax.”