U.S. District Judge Thomas Kleeh has dismissed six of the nine counts included in a 2022 federal civil suit filed by former Westover City Councilor Ralph Mullins against the city.
In addition, City Clerk Sandie Weiss, current city council members Steve Andryzcik, Edie Viola, Jeffery Friend and Duane Tatar, and former council member Gary Weber, have been removed as defendants in the lawsuit.
Kleeh denied the city’s motion to dismiss Mullins’ claim that the city, former Mayor Dave Johnson and City Attorney Tim Stranko violated the West Virginia Whistle-Blower Law.
The city did not seek dismissal of two claims — assault and battery against Johnson.
While tension had certainly been building between Mullins, Johnson and other members of council prior to Feb. 22, 2022, it was a city council meeting on that date, and the resulting fallout, that serves as the backdrop for the Mullins suit.
In an executive session following that meeting, Johnson and Mullins would nearly come to blows over whether the councilor could record the closed session of council. The two men had to be separated by Police Chief Joe Adams.
Mullins claimed he was left with a torn meniscus and in need of surgery following the encounter. Months later, in May, Johnson was charged with misdemeanor battery for shoving in Mullins’ direction during the exchange.
In the weeks that followed the February meeting, Mullins requested accommodation upon the advice of his doctor to participate in council meetings remotely. Council did not take up the request.
On March 21, council voted unanimously to censure Mullins for his behavior at the Feb. 22 meeting, which was ultimately the last meeting he participated in.
In September 2022, Mullins filed suit, claiming, among other things, the city and listed defendants had violated his First, Fourth and Fourteenth Amendment rights, engaged in slander against him, intentionally inflicted emotional distress upon him and deprived him of a constitutional right (Monell Claim).
In his ruling, dated March 26, Kleeh agrees with the city that the facts presented in Mullins’ case are “insufficiently pled and lack merit” for each of those claims.
For example, in the First Amendment claim, the judge notes a censure is not viewed by the Supreme Court as a “materially adverse action” and does not materially deter an elected official’s right to speak.
Further, Kleeh states, Mullins’ case doesn’t adequately demonstrate that he was stripped of council privileges due to his expression of free speech, but rather admits the councilor did not attend meetings based on his doctor’s advice.
He writes: “Defendants did not refuse Plaintiff entry at the meetings. Rather, Plaintiff elected not to attend the meetings and argues that he was retaliated against because the city council decided ‘to not make a decision regarding Plaintiff’s ability to video conference or call into the bi-weekly city council meetings.’”
As to violations of the state’s whistle-blower law, Klee said the Mullins suit does include sufficient facts, which if true, could amount to retaliation.
“Proof of retaliation under the Act does not require proof of unlawfulness,” the judge explained, citing WV Code 6C-1-2.
“Plaintiff alleges he was physically injured following his reports; was censured by the Westover City Council following the Feb. 22, 2022, city council meeting, and was deprived of the ability to attend council meetings. These allegations are sufficient to survive dismissal …”
The judge’s ruling doesn’t speak to the assault and battery claims against Johnson as they were not included in the city’s motion to dismiss.
The criminal battery charge against Johnson resulting from the Feb. 22, 2022, incident went before Magistrate Jim Nabors in May 2023. Johnson was found not guilty.
