CITY COUNCIL MINUTES

REGULAR COUNCIL MEETING OF FEBRUARY 17, 2005

Elkins City Council met in regular session in the Council Chamber of city hall at7:04 p.m. Thursday, February 17, 2005. Present were: Mayor Judith A. Guye; Councilpersons: V. T. Broughton, T. P. Ditty, H. R. Elbon, D. G. George, A. G. Hamrick, V. K. Haynes, Jr., R. J. Malcolm, R. G. Nestor and C. L. Siler, II; City Clerk P. J. Graziani, Jr.; Police Captain J. E. Batdorf and Fire Chief T. W. Meader. Councilman C. D. Armstrong, Treasurer L. L. Crosston and City Attorneys J. E. Busch and R. T. Busch were absent.

AGENDA ADJUSTMENTS

There were none.

PUBLIC COMMENT

Carman Metheny,100? Hanley Street, a 3rd Ward council candidate, stated the ballot for 3rd Ward was “ineffective” [sic]. He said his fear was that the popular vote may not decide the outcome of the [council] election in 3rd Ward.

Bobby Lloyd,21 Orchard Street, a 3rd Ward council candidate, said Phil Graziani should have stepped down as the city’s election official because of pending litigation between Graziani and mayoral candidate Virgil Broughton. Lloyd made other generalized complaints about the election process relating to the order of candidate names on the 3rd Ward ballot. He ended by saying, “The people of Elkins have already been deceived.” He did not specify what deceit had been perpetrated. [Graziani’s performances of the duties of election official are ex officio. Performance of election-related duties is by virtue or because of the office he holds, that of city clerk; he must perform duties specified. The litigation referred to by Lloyd is WV Human Rights Commission Docket No. EREP-256-03, Philip J. Graziani, Jr. v. Virgil P. Broughton, a complaint by Graziani alleging discrimination in employment on the basis of reprisal by former mayor Virgil P. Broughton.]

Lisa Nelson,Beverly resident, identified herself as spokesperson for Reverend Randall Richards, Church of God. On behalf of her pastor and the congregants, she spoke in favor of final passage of the ordinance proposed to regulate the licensing of Limited Video Lottery establishments.

David Rao,909? S. Henry Avenue, said there was not a voting booth when he voted during the early, no excuse voting period. He said he thought the absence of the voting booth was inappropriate and illegal. He cited WV Code, saying it mandates that voters be allowed to retire alone in a booth or compartment, and that voting should be convenient and secure from the observation of others. A city employee was present when he placed his vote, he said. [In-Person Early Voting was conducted in conference room 212 of Elkins City Hall. The dimensions of that room are 23’ x 25’. A city employee, acting in the capacity of voting representative, was in the room while ballots were cast; however, that voting representative was 18’ distant from the voter and with their back turned away from the voter while the ballot was marked. The voter was able to cast their ballot “…secure from the observation of others.” Additionally, and subsequent to Mr. Rao’s remarks, Ms. Jan Casto, representing the WV Secretary of State’s office, inspected the voting site and the voting procedure being followed. She expressed no criticism of or reservations about either the site or procedure.  Indeed, because of the space provided by the generous dimensions of the room, she said, if necessary, more than one voter could be accommodated at any one time.]

Bill Phares,105 Ferndale Drive, said he was concerned that problems were being experienced with the 2005 municipal election similar to the problems experienced with the 2003 municipal election. He said there was no excuse for it, and that it wasn’t right. He said [3rd Ward council] candidates should have had to specify which term they were seeking when they filed a certificate of candidacy.

CONSENT CALENDAR

Cw George, seconded by Cm Elbon, MOVED THAT COUNCIL ACCEPT THE MINUTES OF THE REGULAR MEETING OFFEBRUARY 3, 2005AS PRESENTED. The motion carried. [Cm Ditty noted that the published agenda incorrectly indicated that minutes of the meeting of January 20, 2005 were to be considered. The error was corrected on the permanent agenda file copy maintained in the clerk’s office.]

UNFINISHED BUSINESS

There was none.

NEW BUSINESS

Cw George, seconded by Cm Nestor, MOVED COUNCIL APPOINT SARA BLEVINS TO THE POSITION OF POLICE DEPARTMENT RECEPTIONIST, TO BECOME EFFECTIVE UPON ACTIVATION OF ENHANCED 911 DISPATCHING SERVICE IN RANDOLPH COUNTY. The motion carried.

Cw George, seconded by Cm Hamrick, MOVED COUNCIL APPROVE EMPLOYEE TRAVEL, AS REFLECTED ON THE AGENDA. The motion carried.

Cw George, seconded by Cm Nestor, MOVED THE PROPOSED ORDINANCE 026, REGULATING LIMITED VIDEO LOTTERY LOCATIONS, BE BROUGHT FORTH, READ BY TITLE ONLY AND PASSED ON SECOND AND FINAL READING. The motion carried.

City Clerk Phil Graziani informed Council that the format of the 3rd Ward council ballot was technically flawed; therefore, it was in violation of election law. He admitted responsibility, apologized for his error and explained what had happened.

At the election of March 2003 James R. Sayres, Jr. was elected to a 4-year council term for 3rd Ward. The term became effectiveApril 1, 2003, but Councilman Sayres resigned his position on May 8, 2003. Having moved his place of official residence outside the city limit, he was no longer eligible to hold municipal office. Council appointed Arthur G. Hamrick to fill the 3rd Ward vacancy created by Sayres’ resignation, until a replacement could be elected in March 2005.

Council called for aMarch 1, 2005 municipal general election on October 21, 2004. Reproduced below is the copy for the Call. The written copy was provided to council members and the media prior to the meeting, and it was, subsequently, posted at the front door of city hall and published timely in The Inter-Mountain.

“CALL OF THE MUNICIPAL GENERAL ELECTION

OFMARCH 1, 2005

Elkins Common Council has called for a municipal general election.

OnTuesday, March 1, 2005 a mayor will be elected for a 2-year term, and one council member from each of the five wards of the city will be elected for 4-year terms. Additionally, Third Ward will elect a second council member for a 2-year term. Any citizen eligible to hold office and desiring to appear on the ballot must file a certificate of announcement of candidacy accompanied by the appropriate filing fee. The filing period will commence at 8 a.m. Monday, October 25 and continue until midnight of Friday, November 5, 2004. The filing of the certificate of announcement is made with the Elkins City Clerk. A filing may be made by mail; however, the U. S. Postal Service postmark on the envelope must be no later than midnight of the last day of the filing period, and the proper filing fee must accompany the certificate of announcement. The fee for mayoral candidates is $50; the fee for council candidates is $25. Questions regarding election procedures may be directed to the Elkins City Clerk, 636-1414.”

Graziani confessed that at this point in the election process he incorrectly believed that the 3rd Ward 4-year council term would be filled by the top vote getter of the election and the 2-year term would be filled by the runner-up. During the candidate filing period, four individuals filed certificates of candidacy for the two available seats: Robert (Bob) Malcolm, Carman L. Metheny, Bobby B. Lloyd and Arthur G. “Sonny” Hamrick. Upon the close of the candidate filing period, the requisite period for candidate withdrawal was observed, and the drawing for ballot position was heldNovember 30, 2004. The order of appearance of the candidate names for ballot purposes having been established, a draft ballot was prepared, discussed with the ballot commissioners and conveyed to the printer, Casto & Harris, Inc. of Spencer, WV. The format in which the 3rd Ward council candidate names were initially conveyed to the printer was as follows:

Third Ward Council

                   (Vote for not more than TWO)

Robert (Bob) Malcolm

Carman L. Metheny

Bobby B. Lloyd

Arthur G. “Sonny” Hamrick

Casto & Harris, Inc. representative John Denbigh contacted Graziani saying that he did not believe the format of the 3rd Ward council ballot met mandated ballot layout specifications; he did not believe it complied with election law. Denbigh suggested Graziani seek counsel and guidance from either the city attorney or WV Secretary of State. Graziani did so, and he was informed that candidates for 3rd Ward council should have specifically filed for either the 4-year or 2-year terms of office. Neither personnel of the Secretary of State’s office or the city attorney could give direction as to how to remedy the error. While the WV Legislature enacts legislation to direct and regulate election law, the laws do not necessarily provide mechanisms whereby human error can be corrected. The consensus of the opinion rendered indicated that once the election process had been initiated it must proceed to its uninterrupted and unimpeded culmination on election night, in the absence of any other legal considerations or interventions. In other words, it would not now be possible to allow or require that 3rd Ward council candidates specify which of the two available terms they wished contest. Not being able to identify a corrective course of action, Graziani was compelled to proceed with the election process. The format of the 3rd Ward council candidate portion of the ballot was revised by Graziani and conveyed to the printer. It is reproduced below.

    “FOR COUNCIL



      Third Ward

                                   4-Year Term

                                                                                           (Vote for ONE)



Robert (Bob) Malcolm

Carman L. Metheny

Bobby B. Lloyd

Arthur G. “Sonny” Hamrick

      Third Ward

                          2-Year Unexpired Term

                                                                                           (Vote for ONE)



Robert (Bob) Malcolm

Carman L. Metheny

Bobby B. Lloyd

Arthur G. “Sonny” Hamrick”

The revised format remains in technical violation of election law; no candidate name may appear more than once on a ballot. The revised format does clearly draw to the attention of the voter the fact that two council terms are to be filled; however, it also seemingly makes it possible for one candidate to win the popular vote for both offices. That too would be a violation of election law, not to mention an affront to common sense.

Graziani then prepared a written direction for the information and guidance of 3rd Ward voters. It was provided to all 3rd Ward Absentee by Mail and In-Person No Excuse voters prior to their casting a ballot. The same direction will be conspicuously posted in the 3rd Ward voting precinct and in the voting booths on Election Day. Third Ward voters will also be given a copy of the direction prior to voting at the precinct. The language of the direction is reproduced below.

“CITY OF ELKINS, WEST VIRGINIA

Municipal General Election

March 1, 2005

ATTENTION 3RD WARD VOTERS

There are 2 council seats to be filled in 3rd Ward. One candidate will be elected to the 4-year term, and a different candidate will be elected to the 2-year term.

You should vote for the candidate of your choice for the 4-year term. You must vote for a different candidate for the 2-year term.

You CANNOT vote for the same candidate for both terms.

IF YOU DO VOTE FOR THE SAME CANDIDATE FOR BOTH TERMS THEN YOUR VOTE FOR COUNCIL WILL NOT BE COUNTED.”

The intent of the direction was clear and self-explanatory. Any ballot on which the oval is darkened for the same candidate for both council terms will be treated as an over vote; in other words, the council vote will not be counted. A properly executed mayoral vote on the same ballot will be counted. Graziani contacted the WV Secretary of State’s office to obtain guidance and direction for the handling of 3rd Ward ballots at the election night counting center.

Election officials are obligated to perform their duties in such a way as to adhere to the law and put in place an open, transparent and accountable process whereby citizen voters can clearly express their will as to which candidates will be vested with the public trust and voted into office. Graziani’s mistake undoubtedly brought unnecessary confusion to the election process for 3rd Ward council seats. But as soon as awareness of the mistake arose, Graziani acknowledged his error and sought guidance to correct it, if possible, and, otherwise, to lessen the effect on the 3rd Ward council contest. Third Ward voters will be informed and made aware that there are two council terms to be filled, so that on Election Day they can clearly elect two different individuals to fill the respective offices.

As to the appointment of a city attorney to commence a 1-year term beginningApril 1, 2005, no motion was made nor did any discussion ensue. Cw George merely announced the recommendation of the Personnel Committee that the decision be deferred to the Elkins City Council to be formed April 1, 2005.

Cm Elbon, seconded by Cm Hamrick, MOVED COUNCIL ENDORSE THE MOUNTAIN STATE FOREST FESTIVAL’S REQUEST TO SERVE WINE AT THE DISTINGUISHED GUEST DINNER ON OCTOBER 6, 2005;however,

Cm Haynes, second by Cm Broughton, MOVED TO TABLE THE MOTION. The motion to table carried. [Cm Haynes said he wanted to defer consideration of the request until he and the Finance Committee had had an opportunity to meet with representatives of the Mountain State Forest Festival Association to discuss the disposition of fees or payments made to the Festival Association by vendors participating in Festival-related retail sales of goods and services.]

Cm Broughton, seconded by Cm Nestor, MOVED COUNCIL ADOPT PROPOSED RESOLUTION 038, AUTHORIZING EXECUTION OF AN AGREEMENT FOR A PEDESTRIAN BRIDGE TO CONNECT RIVERBEND PARK AND THE LOWER GLENDALE BOTTOM PROPERTY. The motion carried. [The need for the resolution arose pursuant to funding available under State Project U342-ELK/IN-2.00 and Federal Project TEA-OQ22(001)E. Cm Elbon was told that city matching funds would be required for the project; however, it was as yet unclear if the city’s match would be in the form of cash or in-kind contribution.]

Cm Ditty, seconded by Cw George, MOVED THAT PROPOSED ORDINANCE 027, ESTABLISHING A POLICY TO CONTROL BACKFLOW AND REGULATE CROSS-CONNECTIONS IN THE WATER SYSTEM BE BROUGHT FORTH, READ BY TITLE ONLY AND PASSED ON FIRST READING. The motion carried. [In response to Cm Elbon’s inquiry, Cm Ditty said provision of required testing has not yet been made.]

Cm Siler, seconded by Cm Ditty, MOVED THAT PROPOSED ORDINANCE 028, INCORPORATING BRUCE STREET EXTENSION INTO THE CITY, BE BROUGHT FORTH, READ BY TITLE ONLY AND PASSED ON FIRST READING. The motion carried. [Cm Siler said the measure was the result of a lot of work done over a long period of time by the developer, mayor, the Committee, city engineer, attorney and other city personnel.]

COMMITTEE REPORTS

BUILDING

The Committee received 7 building permit applications since the last meeting of council, 2614 to 2620. Acting on recommendation of the building inspector, the Committee approved all applications.

Cm Malcolm, seconded by Cw George, MOVED THAT COUNCIL GRANT THE 7 PERMIT APPLICATIONS APPROVED BY THE COMMITTEE. The motion carried.

SANITATION/LANDFILL

The schedule of free monthly dump days to be observed at the landfill during 2005 has been published. Free dump day will be the 3rd Wednesday of each month.

PERSONNEL

Cw George said, “Some council members believe that more productive use could be made of the city’s operational employees and equipment. They believe one supervisor and coordinator for operational activities could allow us to accomplish more with the assets we have.A public works director would have responsibility for road maintenance and improvements, water and sewer projects, and city construction programs. The personnel committee developed a job description for the position. Newspaper advertisements were published. The intent was to see if competent and capable people would respond. In recent weeks, there has been public discussion of the position. Citizens have contacted me and other council members directly to express their opinions. The local newspaper has also reported on the subject, saying that new taxes would be needed to pay for the position. That is not accurate. An increase in taxes to pay for a public works director was never discussed or intended. The work that has been done so far has been exploratory. The decision to hire a public works director, I believe, should be made by the new council to be formed April 1.”

PUBLIC SAFETY



Cm Nestor said the Committee recommended that the rank of corporal be instituted in the Elkins Police Department. He asked the mayor to correspond with the Policemen’s Civil Service Commission and request that the competitive testing process be implemented to develop a list of those officers eligible for promotion.

WATER

Cm Ditty reported on the last Committee meeting, the minutes of which have been made available to council members and are on file in the clerk’s office.

OTHER BUSINESS

The Parks and Recreation Commission obtained approximately $45,000 to purchase two new pieces of recreational equipment for the city park system. One piece is intended for children ranging from 2-12 years of age and the other for those ranging from 5-14 years of age. Each piece of equipment should accommodate up to 30 children at any one time.

The Glendale Bottom property will be used to expandRiverbend Park. The access road into Glendale Bottom will soon be improved and a parking lot constructed.

Cm Ditty said a second river cleanup project was being planned for April 16. Additional detail would be forthcoming.

Cm Malcolm said he too had received comment about the 3rd Ward council ballot. He said he regretted the confusion and hoped steps would be taken to clarify the process.

The mayor said both the Randolph County Board of Education and Davis andElkins College’s Augusta Heritage had requested links to the city’s new website.

The meeting adjourned at8:06 p.m.

/s/ Judith A. Guye,

       Mayor