STATEMENT July 20, 2108 Charleston Gazette Mail IN ACCOUNT WITH DEBBIE FACEMIRE NICHOLAS COUNTY CIRCUIT CLERK 700 MAIN STREET, SUITE 5 SUMMERSVILLE, WV 26651 i TO BALANCE DUE: City of Richwood vs Bob Henry Baber COPIES 32 $1.00 $32.00 TOTAL $32.00 I have enclosed copies of the orders in thisicase and a docket sheet. These are the only documents that are public record. If you need any other documents from this file I woulaneed an order from our court to do so. PLEASE RETURN COPY OF STATEMENT WITH PAYMENT. THANK YOU. ?3 I . IN THE CIRCUIT WEST VIRGINIA CITY OF RICHWOOD, 2513 JUL 20 2: 1 Petitioner, v. Civil Action NO. 17-P-54 Three Judge Panel: Judge Paul M. Blake, Jr. Judge David H. Wilmoth Judge Robert E. Richardson BOB HENRY BABER, Respondent. i ORDER RULING UPON RESOLUTION FOR THE REMOVAL OF BOB HENRY BABER As THE MAYOR 0F RICHWOOD, WEST VIRGINIA, PURSUANT TO w. VA. CODE 6-6-7 Whereas, on an earlier date, pursuant to its entry of an Administrative Order, the West Virginia Supreme Court of Appeals appointed a three Judge panel in the above styled matter (hereinafter the ?Panel?) to conduct an evidentiary hearing upon the allegations put forth in a resolution adopted by the City Council of Richwood, West Virginiajfor the removal of Bob Henry Baber as the Mayor of Richwood, West Virginia, for acts allegedly constituting mal- administration, of?cial misconduct, and/or ?nancial mismanagement (hereinafter the ?Resolution?). On June 15, 2018, the Panel convened for said evidentiary hearing. Petitioner, City of Richwood, appeared by its counsel, Jared M. Tully, Esq. and Alex J. Zurbuch, Esq., of Frost Brown Todd LLC. Respondent, Bob Henry Baber, Mayor of Richwood, West Virginia, appeared in person and by his counsel, Richard A. Robb, Esq. Initially, the Panel heard the argument and proffers of counsel regarding two preliminary matters pending before it: Respondent?s Motion To Dismiss Removal Action Against Him (hereinafter the ?Motion To Dismiss?) and Petitioner?s Motion For Summary Judgment And Order Of Removal (hereinafter the ?Motion For Summary Judgment?). As to the Motion To Dismiss, the Panel ?nds that although reinvigorated before this Panel, the Motion To Dismiss was ?led prior to Judge Rowe conducting a hearing and subsequently ?nding that the Resolution was suf?cient and proper.1 The Respondent ?led the motion and was given the opportunity to argue it in front of Judge Rowe, and although not Speci?cally addressed in Judge Rowe?s Order Of Referral To Panel, the Panel ?nds that Judge Rowe?s ?ndings that the proper procedure had been followed and the Resolution was suf?cient and proper, addressed the substantive argument raised in the Motion 'To Dismiss.2 Accordingly, based upon Judge Rowe?s ?ndings and conclusions set forth in the Order Of Referral To Panel, the Panel will not permit the Respondent to relitigate this issue now at this stage of the proceeding. Further, the Panel also ?nds and concludes that Respondent?s substantive argument is without merit. The City Council is comprised of two (2) members elected from each ward for a total of eight (8) regular City Council members.3 Of those eight (8) elected members of City Council, six (6) voted in favor of the Resolution, and two (2) abstained, thereby resulting in the approval of the removal Resolution by more than two-thirds majority of the elected members of City Council.4 The Panel?s ?nding of no merit is further bolstered by Respondent?s concession that it is not, nor has it been, the ordinary past practice for the Recorder and Mayor to vote as regular See Respondent?s Notice 0f Motion To Dismiss, Citv of Richwood v. Bob Henrv Baber. Nicholas County Civil Action No. April 2, 2018. 2 See Order Of Referral To Panel, Citv of Richwood v. Bob Henrv Baber. Nicholas County Civil Action No. 17-F- 54, May 10, 2018, (?Upon review of the resolution, the parties ?moiions, and the oral arguments of the parties, the Court ?nds . . (emphasis added)). 2 members of the City Council. Therefore, based upon the foregoing, the Panel concludes that the Motion To Dismiss should be, and hereby is, DENIED. Next, the Court heard argument regarding Petitioner?s Motion For Summary Judgment. Having heard the argument and reviewed the record, the Panel deferred ruling on the Motion For Summary Judgment at that time. At the conclusion of the Petitioner?s presentation of evidence the Panel again conferred and deferred ruling on the Motion For Summary Judgment so as to permit the Respondent to put on that evidence he desired to put before the Panel. As the Panel deferred ruling upon the Motion For Summary Judgment until the Panel had heard all of the evidence in the matter, the Panel ?nds that the Motion For SummaryiJudgment is now MOOT, and the Panel instead opts to enter its ruling upon the total evidence presented in support and challenge of the Resolution. The Panel will now proceed to address and rule upon the substantive allegations put forth in the Resolution. FINDINGS OF ACT, CONCLUSIONS OF LAW, DISCUSSION AND RULING UPON INDIVIDUAL ALLEGATIONS PUT FORTH IN THE RESOLUTION The city charter of Richwood provides, in relevant part, that [t]he council shall have power and authority to remove from of?ce any of?cer elected by the voters of said city for drunkenness, incompetency, misconduct or neglect of duty, or any non-feasance, misfeasance, or malfeasance in of?ce, upon written charges preferred by a member of council or by any responsible citizen of said city; but only after reasonable notice to Such of?cer, and a hearing of the charges preferred; and no such of?cer shall be removed except by a two?thirds vote of all the members of the council. 3 See Richwood Charter, Ch. 21, p. 530. 4 See Minutes, City of Richwood Regular Council and Public Meeting, February 15, 2018. 3 City of Richwood Charter, Chapt. 21, Sec. 15, p. 532. By passage of its Resolution, the Petitioner herein seeks the removal of Mayor Baber based upon allegations of maladministration, of?cial misconduct, and ?nancial mismanagement by and through various acts alleged in detail in the removal Resolution. Removal of elected of?cials is governed by West Virginia Code 6-6-1 et seq. West Virginia Code 6?6-7, provides, in relevant part, ?[a]ny person holding any county, school district or municipal of?ce, . . . the term or tenure of which of?ce is ?xed by law, whether the of?ce be elective or appointive, . . . may be removed from such of?ce in the manner provided in this section for of?cial misconduct, neglect of duty, incompetence or for any of the causes or on any of the grounds provided by any other statute. W. Va. Code 6-d-7 (2016). West Virginia Code 6-6-1, in relevant part, further provides that The term ?of?cial misconduct?, as used in this article, means conviction of a felony during the of?cer's present term of pf?ce or any willful unlawful behavior by a public of?cer in the course of his or her performance of the duties of the public of?ce. The term ?neglect of duty?, as used in this article, means the knowing refusal or will?il failure of a public of?cer to perform an essential act or duty of the of?ce required by law. (0) The term ?incompetence?, as used in this article, may include the following acts or adjudications committed or arising during the challenged of?cer's term of of?ce: The waste or misapprOpriation of 'public funds by any of?cer when the of?cer knew, or should have known, that such use of funds was inappropriate or inconsistent with the lawful duties of the of?ce; conviction of a misdemeanor involving dishonesty or gross immorality, having been the subject of a determination of incapacity, as de?ned and governed by 'section seven, article thirty, chapter sixteen of this code; or other conduct affecting the of?cer's ability to perform the essential of?cial duties of his or her of?ce including but not limited to habitual drunkenness or addiction to the use of narcotic drugs. W. Va. Code 6-6-1 (2016). Pursuant to the procedures codi?ed in West Virginia Code 6-6-7, once the West Virginia Supreme Court of Appeals has appointed a three-judge panel to oversee the removal proceedings, the panel shall, without a jury, hear the charges, any motions ?led by either party and all evidence offered in support thereof or in opposition thereto, and upon satisfactory proof of the charges by clear and convincing evidence, shall remove any such of?cer from of?ce and place the records, papers and property of his of?ce in the possession of some other of?cer or person for safekeeping oi- in the possession of the person appointed as hereinafter provided to ?ll the of?ce temporarily. Any ?nal order either removing or refusing to remove any such person from of?ce shall contain such ?ndings of fact and conclusions of law as ithe three-judge court shall deem suf?cient to support its decision of all issues presented to it in the matter. West Virginia Code 6-6-7(g) (2016). To warrant removal, the charges against the elected of?cial must be established by clear and convincing evidence to meet the statutory burden of satisfactory {pi-00f.5 If any of the allegations put forth before the Panel are proven by clear and convincing evidence, the Panel must order the removal of Mayor Baber as the Panel is without discretion to take any other disciplinary action.6 . Throughout the evidentiary proceeding, the Panel was in a position to observe the individual witnesses and hear their testimony, and the Panel has accordingly given said I testimony that weight and credibility deserved. As put forth in the following ?ndings of fact and conclusions of law, the Panel, having heard and considered the argurhent and proffers of counsel 5 Syl. Pts. 3 and 4, In re Sims, 206 w. Va. 213, 215, 523 273, 275 (1999). . 5 Id., at 222, 523 at 282. 5 and having reviewed and considered the record and all evidence presented in this matter, is of the opinion that the Petitioner has presented clear and convincing evidence to show that Bob Henry Baber committed one or more instances constituting mal-administration, of?cial misconduct, and/or ?nancial mismanagement while said Bob Henry Baber was the Mayor, or was acting in the capacity of the Mayor, of Richwood, West Virginia, and further, .that said acts, having been established by suf?cient proof, warrant the removal of Bob Henry Baber from his elected position as Mayor of Richwood, West Virginia. Ncn'ill'owz'rrer of Issues In Support ofRemovbl Many issues were raised in the Resolution, however, based upon the record and stipulated materials, the panel determined early in the evidentiary hearing that the crux of the removal action was the following six (6) allegations: 1) Directing City Clerk not to pay federal or state taxes; 2) Unauthorized publicizing of con?dential matters resulting in city purchasing card suspension; 3) Delegation and impr0per use of Local Government Purchasing Card; 4) Submission and Receipt of payment for unauthorized personal bills; 5) Submission and receipt of payment for time not worked and time that the Mayor is ineligible to?receive payment for; and 6) Collusion with vendors to falsify and submit false/split invoices. As to the remaining claims put forth in the Resolution beyond the aforementioned six (6) allegations, the Panel ?nds that removal is not warranted upon any of those remaining claims as the Petitioner has either abandoned the remaining allegations; failed to present any material evidence in support of the remaining allegations; and/or presented wholly insuf?cient material evidence to carry the burden of proving those remaining allegations by clear and convincing evidence. At the close of the Petitioner?s presentation of evidence, counsel for the Petitioner conceded that insuf?cient evidence had been presented to support the allegation that Bob Henry Baber directed the City Clerk not to pay federal or state taxes, and, as such, counsel for the Petitioner orally moved to withdraw the allegation from the Panel?s consideration. The Panel accepted and granted Petitioner?s oral motion. Accordingly, the Panel ?nds that the removal of Bob Henry Baber from his position as Mayor of Richwood, West Virginia, therefore, hinges upon the establishment of one or more of the remaining ?ve (5) material, substantive allegations. Having determined that removal is not warranted unless it is warranted upon one or more of these remaining ?ve (5) material, substantive allegations, the Panel will now proceed to address each, individually. 1. Unauthorized publicizing of con?dential matters resulting in city purchasing card suspension The Petitioner asserts that the ReSpondent, Bob Henry Baber, should be removed from his position as Mayor of Richwood, West Virginia, because, following a meeting with the West Virginia Auditor regarding potential misuse of Richwood?s Local Government Purchasing Card (hereinafter ?P-Car Mr. Baber allegedly publicized con?dential matters at a press conference that subsequently resulted in the immediate shutdown of the City of Richwood?s P-Card program. Further, the Petitioner alleges that such conduct by Mr. Baber greatly inconvenienced the City of Richwood and made it very dif?cult for the City to carry on its normal day to day functions. Minimal evidence was introduced at the evidentiary hearing regarding this claim. Absent from the evidence presented was any evidence that the information released was actually con?dential or by what basis said information was con?dential. Also the exhibits and evidence that were stipulated to by the parties regarding this speci?c claim are rather vague and do not clearly and convincingly show that the City of Richwood?s P-Card program was suspended based wholly upon the actions of the Respondent? Additionally, the Respondent?s conduct in openly discussing lP-Card misuse with the Auditor must be reconciled with section 8.0 of the Local Purchasing 'Card Policies and Procedures.8 The foregoing section speci?cally mandates reporting of potential abuse and misuse of P?Cards to the P-Card Coordinator of the entity, who is then required to report the same to the State Auditor?s Of?ce Local Government P?Card Division within 24 hours.9 Based upon the evidence presented, it appears to the Panel that the City of Richwood either did not have, or did not have a consistent, designated P-Card coordinator, which begs the question: ?upon whom does this reporting responsibility fall?? An argument could be made that the responsibility may fall upon the Mayor or some other city of?cial.10 Regardless, it is clear that the manner in which much of the business of the city was conducted during the relevant period of time, both by the ReSpondent and the City Council, was disordered and fostered an 7 See Stipulated Exhibit 7, September 22, 2017, Bob Henry Baber Facebook Post; see also Stipulated Exhibit 8, September 23, 2017, West Virginia Gazette Article. Speci?cally the Facebook post does not reveal any information that re?ects rampant misuse by other city of?cials. The Gazette article also appears to vary somewhat from Petitioner?s claim as it indicates that ?additional Richwood employee?s purchasing- cards were shut down at the City Council ?5 request? and then goes on to indicate that four more workers? cards were shut down as a result of Baber stating that he had allowed other employees to use the Respondent?s P-Card. Stipulated Exhibit 8, September 23, 2017, West Virginia Gazette Article, at p. 2. 8 West Virginia State Auditor?s Of?ce, Local Government Purchasing Card Program, Purchasing Card Policies and Procedures (Dec. 2008), sect. 8.0, at pp. 9-10See Stipulated Exh. 22, Bob Henry Baber Transcript, WVSAO Examination Under Oath (referred to and cited hereafter as the Transcript") at 73-76. The Respondent testi?ed during the Auditor?s examination that the last P-Card Administrator was the former Mayor. Id. at 74. 8 environment conducive and prone to ?nancial abuse and mismanagement.11 Be that as it may, the existence of such a lax environment does not excuse conduct contrary to the public con?dence. Secondly, since there is a mandate to report any suspected misuse of the P-Card, the Petitioner?s claim cannot be supported unless it can be shown that the Respondent?s conduct falls within that Speci?c prohibited conduct outlined in West Virginia Code 6-6-1. Based upon the foregoing and a thorough review and consideration of the evidence and testimony, the Panel ?nds that while such conduct on the part of the Respondent may cast both the City of Richwood and the Respondent in a negative light and mag, have caused the City of Richwood some dif?culties in carrying out and completing day to day business, it does not rise to the level of will?il unlawful conduct that would constitute of?cialimisconduct or neglect of duty under West Virginia Code 6-6-1. As such, the Panel ?nds and concludes that the Petitioner has; failed to present clear and convincing evidence to show that Respondent?s removal from his elective position as Mayor of Richwood, West Virginia, is warranted based upon the claim that the: Respondent publicized con?dential information, without authorization, thereby resulting in the City of Richwood?s P- Card program being suspended. 2. Delegation and Improper use of Local Government Purchasing Card While the Petitioner has put forth various independent claims'regarding Mr. Baber?s use of his Local Government P-Card, the Panel ?nds that the claims are intrinsically related. '1 Throughout this proceeding, the Panel recognized numerous occasions where the standard checks and balances inherent in government proceedings, for the most part, were wholly absent or circumvented in some fashion. Whether this was due to the stress and indelible effects of the ?ood or due to the dereliction of the duties and 9 I Therefore, to avoid redundancy and in the interest of judicial economy, the Panel is of the opinion that the P-Card claims should be collectively addressed under the foregoing heading. Essentially the Petitioner alleges that Bob Henry Baber should be removed from his elected position as Mayor of the City of Richwood because Mr. Baber improperly, 1) provided and delegated his P-Card to unauthorized persons; 2) failed to obtain authorization for P-Card purchases; and 3) failed to maintain and provide P-Card receipts in a' timely manner. West Virginia Code provides [n]otwithstanding any provisions of the code to the contrary, the Auditor may authorize and administer a purchasing card program fOr local governments under the auspices of the chief inspector division. The purchasing card program shall be conducted so that procedures and controls for the procurement and payment of goods and services are made more ef?cient and so that the accounting and reporting of such payments shall be uniform for all local governments utilizing the program. The program shall permit local governments to use a purchase charge card to purchase goods and services. Notwithstanding any other code provisions to the contrary, local government purchases may be made with the purchase charge card for any payment authorized by the Auditor, including regular routine payments, travel and emergency payments. W. Va. Code 6-9?2a (2008). W. Va. Code 6-9?2a also provides that ?[t]he Auditor may propose rules for promulgation to govern the implementation of the local government purchase card program and may promulgate emergency rules for emergency payments to effectuate the provision of such services.? Id. The statutory code further provides that It is unlawful for any person to use a local government purchasing card, issued in accordance with the provisions of section two-a of this article, to make any purchase of goods or services in a manner which is contrary to the provisions of section two-a of this article or the rules promulgated pursuant to that section. responsibilities of the various public servants, it is unknown, and that question is not before this Panel. 10 It is unlawful for any person to knowingly or intentionally possess with the intent to use a purchasing card without authorization pursuant to section two-a of this article or the rules promulgated pursuant to that section. W. Va. Code 6-9-20 (2014). Consistent with the regulations promulgated by the auditor governing State P-Card usage as put forth in W. Va. Code R. 155-7-1 et seq. and pursuant to W. Va. Code 6-9-2a, the West Virginia Auditor has promulgated policies and procedures governing a municipality?s use of P- Cards and participation in the P-Card program.12 These policies andiprocedures, in relevant part, provide the following: The P-Card Policies and Procedures Manual establishes minimum standards for the use of the State of West Virginia Local Government P-Card. . . . It is the Entity?s Coordinators and cardholders responsibility'to be knowledgeable of and to follow all P-Card policies and procedures, as well as all applicable purchasing laws and guidelines. P-Card delegation is prohibited. P-Card delegation is the practice of allowing an individual other than the cardholder whose name appears on the front of the P-Card to have access to the P-Card or P-Card number to initiate or complete a transaction. P-Card delegation increases the. risk of fraud and cardholder liability. P?Card delegation includes allowing an individual other than the cardholder to: have physical possession of the P-Card to make payments to point-of?sale vendors; have access to the P?Card number and expiration date to make payments via '2 See Stipulated Exhibit No. 9, West Virginia State Auditor?s Of?ce, Local Goveriiment Purchasing Card Program, Purchasing Card Policies and Procedures (Dec. 2008) (Accepted and adopted by the City Council of Richwood November 15, 2012 (Stipulated Exh. 25, City of Richwood, Minutes of the Common Council, Nov. 15, 2012, para. 4, at p. see also West Virginia State Auditor's Of?ce, Local Government Purchasing Card Program, Policies Procedures (last visited Junet28, 2018) (Providing online copy of State Auditor?s Local Government Purchasing Card Policies and Procedures Manual). 11 telephone, intemet, or in person; have access to receipts or invoices that display the P-Card number and expiration date. P-Cards are issued in an individual?s name. Only that" person named on the P-Card is the authorized user. West Virginia State Auditor?s Of?ce, Local Government Purchasing Card Program, Purchasing Card Policies and Procedures (Dec. 2008), sect. 1.3 at p. 2, sect. 3.4 at pp. 5-6. The P-Card Policies and Procedures de?ne ?P-Card Delegation? as ?[t]he practice of allowing an individual other than the cardholder whose name appears on the front of the P-Card to have access to the P- Card or P-Card number to initiate or complete a transaction.? Id., sect. 9, at p. 11. The P-Card Policies and Procedures restrict the use of the P-Card as well. ?The P-Card may be used to make payments for goods, services, and travel that are not prohibited by P-Card Policies and Procedures. Personal charges are prohibited.? Id., sect. 5.1, at p. 6. Moreover, the P-Card Policies and Procedures speci?cally inform P-Card users that West Virginia Code, ?6-9-20, states: ?It is unlawful for any person to use a local government purchasing card, issued in accordance with the provisions of section two-a of this article, to make any purchase of goods or services in a manner which is contrary to the provisions of section two-a' of this article or the rules promulgated pursuant to that section. Any person who violates the provisions of this section is guilty of a felony and, upon con'viction thereof, shall be con?ned in a state correctional facility not less than onei year nor more than ?ve years, or ?ned no more than ?ve thousand dollars, or both ?ned and imprisoned.? Failure to comply with P-Card Policies and Procedures, rules, and law associated with the Local Government P-Card Program may result in revocation or limitation of P-Card privileges, a period of probation, or mandatory P-Card training in addition to any other discipline deemed necessary or appropriate by the Entity. Instances of unlawful use, possible fraud, misapprOpriation, or mismanagement with the P-Card shall be reported immediately to the P-Card Coordinator of the 12 Entity. The P?Card Coordinator shall report all aforementioned instances to the Director of the State Auditor?s Of?ce Local Government P?Card Division within 24 hours of his or her discovery in a format approved by the State Auditor?s Of?ce Local Government P-Card Division. The P-Card Program is a privilege, not a right, and disciplinary action will be taken for fraud, misuse or abuse of the P-Card. Id., sect. 8.0, at pp. 9-10. The P-Card Policies and Procedures also inform the P-Card user that a P?Card will not be issued until a Cardholder Agreement Form is signed and explains the purpose of the form: ?[t]he Cardholder Agreement Form signi?es that the applicant acknowledges that he or she has had adequate training, understands the P-Card Policies and Procedures, aEnd accepts responsibility for compliance with the P?Card Policies and Procedures.? Id., sect. 3.3 at p. 5. The Cardholder Agreement Form further stresses the applicability of the P-Card Policies and Procedures and West Virginia Code stating, ?[t]his agreement outlines the responsibilities I have as a holder of the West Virginia Local Government Purchasing 'lCard. My signature indicates I have read and understand these responsibilities and that I agree to adhere to West Virginia Code 6-9-20 and rules promulgated thereunder, to the Local Government Purchasing Card Policies and Procedures, and any applicable purchasing guidelines.? West Virginia State Auditor?s Of?ce, West Virginia Law! Government Purchasing Cardholder Agreement. Moreover, the Cardholder Agreement Form reiterates many signi?cant issues initially covered in the P-Card Policies and Procedures: 4. I understand that the Purchasing Card is issued in my name and I am responsible for maintaining the security of the card and for all charges made by or authorized by me against it. I understand and agree that I will not give the card bearing my name to any other person to use either on my behalf or someone else?s. 13 6. I agree to follow the West Virginia Law, purchasing guidelines of my Local Government Entity and established Policies Procedures. 13. I understand it is my responsibility to save all receipts for transactions posting to my Local Government Purchasing Card and that United Bank does NOT have c0pies of those receipts. Id. In the matter at bar, the Respondent concedes that he has on several occasions given his P-Card to other parties to make purchases and, at times, those partiesI passed the Respondent?s P- Card to third persons with the Respondent?s knowledge and authorization. ?3 The Respondent also concedes that he signed the West Virginia Local Government Purchasing Cardholder Agreement on January 10, 2017, prior to receiving his P-Card.l4 The Respondent argues, however, that although he signed the West Virginia Local Governme'nt Purchasing Cardholder Agreement, he had not read it or any of the Purchasing Card Policies and Procedures prior to signing the form.? The Respondent further attempted to justify his actions by testifying that although he had provided his P-Card to other people for use, it was a common practice for city '3 See Stipulated Exh. 22, WVSAO Transcript at 85. The Respondent conceded during his hearing testimony and during his sworn deposition testimony that his P-Card had been in the possession of other peeple, some of which were in fact not even employed by the City of Richwood. See also id. at pp. 90, 198, 129-36, 140. The Respondent?s hearing testimony and the Respondent?s sworn testimony during theIWest Virginia Auditor's examination clearly reveal a multitude of instances of impmper unlawful delegatio'h of the Respondent?s P?Card. 1? See Stipulated Exhibit 24, West Virginia Local Government Purchasing Cardholder Agreement. 15 See Stipulated Exh. 22, WVSAO Transcript at 101. During Respondent?s proffeiied testimony, the Respondent adopted the same responses to questions as provided to the Auditor during the Respondent?s sworn deposition testimony. Throughout this order, the Panel regularly references testimony given at the evidentiary hearing and cites to related testimony from the WVSAO Transcript, as, at the time of the drafting of this order, a transcript of the evidentiary hearing testimony had not been produced. 14 of?cials to do the same, 16 and it was necessary for the Respondent to delegate his P-Card in order to enable him to carry out his mayoral duties. As ?lrther support for Respondent?s alleged lack of knowledge and lack of understanding, the ReSpondent urges the Panel to ?nd that there is ambiguity in the 4th provision of the West Virginia Local Government Purchasing Cardholder Agreement that creates confusion by stating that ?the Purchasing Card is issued in my nameuand I am responsible for maintaining the security of the card and for all charges made by or airthorized by me against it?? The ReSpondent argues that the ?made by or authorized by me?? language appears to indicate that the P-Card could be used by the cardholder, or by someone other than the cardholder, as long as the cardholder authorized the use of the P-Card. The Panel ?nds Respondent?s argument to be unpersuasive, however. In making his ambiguity argument, the Respondent wholly ignores, and doesn?t even attempt to reconcile, the second sentence in provision 4 of the West Virginia Local Government Purchasing Cardholder Agreement which plainly states, understand and agree that I will not give the card bearing my name to any other person to use either on niy behalf or someone else?s.?18 The Panel ?nds that there is nothing ambiguous or confusing about the foregoing sentence, and its proximity to the allegedly ambiguous language, is fatal to Respondent?s argument. Rather than permitting a cardholder to allow others to use: the card, the cited provision merely makes the cardholder responsible for the P-card?s use including use by a person to '5 See id. The Respondent Speci?cally asserted that he had observed another city einployee, Abby McClung, regularly delegate and pass her Card. Provision 4, in part, Stipulated Exh. 24, West Virginia Local Government Purchasing Cardholder Agreement, egrecuted by ReSpondent January 10, 2017 (?emphasis added?). Id. 15 whom the cardholder had improperly given the card. The Panel also places little weight on Respondent?s ignorance argument and the same is not well taken, as the Panel ?nds that the Respondent is a former college professor who is an educated man of better than average intelligence. 19 As the Supreme Court discussed in Edwards Hylbert, [Members of a local body] must not rely on indirect infOrmation when direct information is at hand. They can not avoid the effect of statutory restrictions on the ground of ignorance which results from their own inattention. It is their duty to be informed, and this requires the exercise of the diligence of an ordinarily prudent person. Syl. Pt. 2, Edwards v. Hylbert, 146 W. Va. 1, 1, 118 347 (1969) (discussing members responsibility to stay apprised of availability of funds at their disposzil) (emphasis added). The Panel further ?nds that the Respondent signed the West Virginia Local Government Purchasing Cardholder Agreement and attested that he had read andl?illy understood the responsibilities incumbent upon a government P-Card user.20 This Panel will not now accept Respondent?s argument that, although he is well educated and seasoned, he is excused from the P-Card violations as a result of his alleged lack of due diligence and inattention. While the Respondent attempted to ?thher minimalize his delegation of his P?Card by referencing studies and ?ndings by the West Virginia Auditor that P-fCard misuse is a frequent occurrence, by his signature af?xed upon the West Virginia Local Government Purchasing Cardhoider Agreement, the ReSpondent attested that he would adhere to West Virginia Code 6- 9-20, the rules promulgated thereunder, the Local Government Purchasing Card Policies and ?9 The Respondent testi?ed that he previously was a grant writer and professor at Glenville State College, with a B.S. in English and creative writing, and a PHD. in another area of study. . 16 Procedures, and any applicable purchasing guidelines, regardless of what, if anything, other city of?cials were doing. Moreover, no material evidence was presented at the evidentiary hearing to show that other city of?cials were delegating their P-Cards in the same manner as the Respondent. Contrary to Respondent?s assertion, testimony was elicited that the one individual Speci?cally identi?ed by the Respondent as another city of?cial who was allegedly delegating their P-Card, in fact, did not possess a Richwood City P-Card.21 Accordingly, based upon the foregoing, this Panel ?nds and concludes that the Petitioner has presented overall clear and convincing evidence to show that the.! Respondent, being fully aware of the restrictions and responsibilities of P-Card usage, and being fully aware of the rami?cations of non-compliance, on multiple occasions did blatantly disregard the P?Card rules, policies and procedures and willfully and unlawfully delegated his Local Government P-Card to unauthorized persons to make purchases. Even though the foregoing P-Card violations would alone be suf?cient to support the Respondent?s removal from his elected position, the questionable nature of many of the P-Card purchases in combination with the Respondent?s failure to obtain authorization and his failure to maintain and timely provide receipts for those purchases, only lends additional support for the Mayor?s removal. A detailed review of the transcript of Respondent?s deposition testimony during the West 20 See Stipulated Exh. 24, West Virginia Local Government Purchasing Cardholder Agreement, executed by Respondent January 10, 2017. 2' See Stipulated Exh. 22, WVSAO Transcript at 101. During his sworn depositionltestimony, the ReSpondent identi?ed Abby McClung as an of?cial the Respondent observed delegating a P-Card to others, but testimony was elicited during the evidentiary hearing that Ms. McClung did not possess a but rather a Dollar General Card. 17 Virginia State Auditor?s examination revealed multiple occasions where Respondent did not obtain, or even seek, authorization or prior approval for a number of Respondent?s questionable P-Card expenditures, some of which appear to be purely personal in nature;22 The evidentiary hearing testimony only reinforced this earlier testimony as a common theme became apparent; Respondent?s independent expenditure of city funds for whatever reason the Respondent deemed followed by sporadic, after the fact disclosure to the City Counsel. Although the ReSpondent attempts to justify a number of his P-Card purchases as relating to ?networking? for the city, this explanation is simply insuf?cient to justify the unauthorized expenditure of public funds.23 Governmental systems of checks and:balances are Speci?cally in place to ensure that public funds are not wasted and are expended in an appropriate manner. However, under the system operated by the ReSpondent, the Respondent alone is the initial and ?nal arbiter of what constitutes an appropriate expenditure of public tfunds. Under Respondent?s system, checks and balances cannot function and the city coffers coulld long be empty by the time other city of?cials would even become aware of the purpose or nature of such expenditures. This very point was clearly evidenced at those times during the evidentiary hearing when Respondent was questioned regarding certain expenditures, such as R-Card charges related to 22 See generally Stipulated Exh. 22, WVSAO Transcript at pp. 92-97, 99-100, 109-1 15 (showing just a few of the more prevalent instances); see also Stipulated Exh. 22, WVSAO Transcript at pp. 86-87 (Respondent conceding that he delegated his card to another employee and directed and authorized the purchase of personal ?owers for a Stacy Raffo because think she broke her arm or something like that.?) Minimal evidence was presented regarding authorization procedures or individual P-Card purchase limits and the guidelines the same are unclear to the Panel. However, the Panel has not focused on the amounts of the purchases, but rather the nature and method of the purchases, as the Respondent has an overall duty to comply with P-Card policies and procedures and a duty to avoid any use of public ?lnds that may constitute waste or misappropriation or use that is'_ inappropriate or inconsistent with the lawful duties of the of?ce of mayor, regardless of the total amount in question. 23 See id. at 92-98 (purchases related to individual chainsaw artist and festival attendance), 99-100 (purchases related to window dresser from New York), 109-1 1 (trip to Mawr forgiveness conference meeting with Marina Cantacuzino ?networking?), 115-16, 122-23 (train trip to Long Island and hotel stay for forgiveness conference and 18 travel to various locations and P-Card charges for club merchandise,- food, soft drinks, water, beer and liquor at a party at a local country club thrown by the Respondent for an out of town attorney. When posed with such questions, the Respondent consistently evaded the question of whether City Council provided pre-authorization for such travel and expenditure of city funds.24 There was also ample evidence presented that Respondent had great dif?culty providing receipts for all of his P-Card transactions and that many had to be recovered from the individual vendors, after the fact, or were simply unavailable, even though the West Virginia Local Government Purchasing Cardholder Agreement signed by the Respondent clearly informs the P- Card user that it is the P-Card holder?s responsibility to maintain all of the receipts documenting P-Card usage. While there was con?icting testimony presented on this issue, the Panel ?nds Respondent?s explanation that the receipts were intentionally lost by a fellow employee once the Respondent had turned the receipts over to her, to be less than credible. Further lending to Respondent?s questionable credibility with'I regard to his P-Card usage, is the evidence and testimony presented that against the direction of city of?cials and after said to meet with attorney Francis McQuade), 128-133 (catered dinner, liquor, beer, and other beverages for party to meet and greet visiting attorney, Francis McQuade). 2" 0n numerous occasions during the evidentiary hearing, when the Respondent was presented with the question of whether pre-authorization and approval of expenditures was given by City Council, the ReSpondent evaded the questions and commonly responded with: ?well they knew?; or told them?; or ?they were aware and didn?t object?. This type of response is also re?ected during the Respondent?s sworn deposition testimony. Moreover, in one instance regarding a party being thrown at a local country club, when the Panel inquired of Respondent whether the party had been discussed with City Council and whether they had given prior authorization to pay for the party where beer, liquor, club merchandise, food, and facilities were paid for by the use of the Respondent?s P-Card, the Respondent informed the Panel that it had been discussed during the May 18, 2017., City Council meeting. The Panel then reviewed the minutes from the May 18, 2017, City Council meeting and directed the Respondent to do the same. Upon discovering that there was nothing re?ected in the minutes regarding the party or any related discussion, the Respondent then advised the Panel that he knew that he had discussed it with Council and the meeting minutes commonly don?t re?ect everything that was discussed. Based upon the Panel?s evaluation of Respondent?s testimony as a whole, including this particular instance, the Panel gives short shri? to Respondent?s testimony as the Panel ?nds the Respondent?s credibility, and the veracity of the pr'o??ered testimony, are both in question. 19 city officials had refused to accept and deposit the same, the Respondent deposited four thousand dollars (given to him by a relative for this purpose) into an escrow account to cover possible discrepancies or improprieties that would potentially be uncovered during the audit and investigation of Respondent?s P-Card usage.25 Considering the allegations and evidence as a whole regarding the Respondent?s delegation of his P-Card, expenditure of city funds through the use of the Respondent?s P-Card, and often times unauthorized, questionable expenditures, this Panel is greatly troubled by the apparent nonchalant attitude taken by the Respondent in relation to the expenditure of public funds during a devastating time in the history of the City of Richwood. Accordingly, the Panel ?nds and concludes that the Petitioner has presented clear and convincing evidence to show that the Respondent has failed to seek council authorization for a multitude of questionable P-Card purchases and has violated West Virginia Code 6-9-2c, the local government Purchasing Card Policies and Procedures, and the West Virginia Local Government Purchasing Cardholder Agreement by failing to properly maintain receipts for all P- Card purchases and by failing to timely produce the same to City Council upon its request. Further, pursuant to West Virginia Code 6-6-1 et seq., the i:Panel concludes that the allegations that the Respondent 1) provided and delegated his P-Card to unauthorized persons; 2) failed to obtain prior authorization for P-Card purchases; and 3) failed to maintain and provide P- Card receipts in a timely manner, having been established by suf?cient clear and convincing . . . . . evrdence, of?c1al misconduct, neglect of duty, and incompetence as those terms are 25 See generally id. at pp. 171-173. Although it is unclear, the Panel is under the impression that these funds were deposited into a city account. If that is the case, this is just one more example of the mingling and mixing of public and private funds. 20 de?ned in West Virginia Code 6-6-1, and therefore mandate the removal of Bob Henry Baber from his position as Mayor of the City of Richwood, West Virginia.E 3. Submission and Receipt of payment for unauthorizedpersdnal bills Next, the Petitioner asserts that Mayor Baber improperly submitted and received payment for personal electric bills and cellphone bills. With regard to the ReSpondent?s electric bills, the evidence presented revealed that the Respondent received and accepted payment in the total amount of $931.82 from city funds for electric usage billed in July, September, and October 2016, for a period of three (3) months related to the usage of power in a business location personally owned by the ReSpondent.26 The evidence and testimony presented at the evidentiary hearing further outlined the alleged basis for this reimbursement. The business location consisted of a lower business front with an overhead apartment. The apartment was occupied by the Respondent?s daughter, Cara Perkins, 27 while the lower section was unoccupied business space. The Respondent testi?ed that electrical service was on for both locations prior to the storage oi" ?ood items in the business portion. Testimony indicated that ?ood donations were originally stdred at the Nicholas County armory, but eventually the armory required the items to be moved from that space. While the exact date that the business Space began being used for the storage of ?ood items was not presented, it can be deduced from the evidence that it was after the ?ood occurred during the last week of June 2016, and after the armory required the donated items to be moved from that 26 See Stipulated Exh. 22, WVSAO Transcript at pp. 165-69. 27 While the exact relationship of Cara Perkins to the Respondent is unclear, the Respondent testi?ed at the evidentiary hearing that Cara Perkins was his accepted daughter, although not legally adopted, and the Respondent regularly referred to her in the same manner throughout the evidentiary hearing and his deposition testimony. See Stipulated Exh. 22, WVSAO Transcript at p. 40. 21 original location, sometime in early to mid-July. 28 It is around this time that the Respondent directed that the items being removed from the armory could be stored in the lower section of his business property. Some donated items were also stored at personal private pr0perties belonging to other individuals. The Respondent testi?ed that, following the storage of items at his personal business property, the use of fans, heaters, and dehumidi?ers to keep the donations dry, greatly increased the normal power usage for the location. The Respondent also testi?ed that Cara Perkins pro-rated the power bills, based upon prior average bills received for the location, before submitting the saine for reimbursement. However, following the evidentiary hearing in this matter, the parties stipulated that payment for the entire amount billed was received by the Respondent and there was no pro rata submission for reimbursement.29 I There was considerable confusion in the testimony regarding whether the power bills submitted and reimbursed were for service to the apartment or to the-lower business Space. The Panel was able to determine from the testimony that the billing for the building is divided into two separate bills consisting of the upstairs apartment occupied by the Respondent?s daughter, and the lower business space, where the ?ood items were stored. According to the Respondent, the billing for these two areas is reversed in that the occupied apartment?s power usage is billed as the lower business area, and vice versa. Ultimately, the Panel ?nds that its decision is unaffected regardless of whether the 28 There was testimony presented by the ReSpondent that donated items were originally stored at the armory, but after a period of time, those items had to be moved from that location. 22 reimbursement was for the apartment or the business location.30 The Respondent argues, and would have this Panel believe, that his actions in permitting the use of his building for the storage of ?ood items was sel?ess and humanitarian in nature. 3 1 Based upon the foregoing and the evidence made a part of the record in this matter, this Panel is not inclined to do so. First, the Panel notes that the ?rst bill that was reimbursed in" total had a of July I 5, 2016. The bill was clearly for power used some time prior to that due date and obviously for the month preceding the bill. This alone would indicate that paymerit/reimbursement was made for power that was used before the arrival and storage of the donated items, and even more signi?cantly, before the ?ood occurred. As such, the ReSpondent received reimbursement for most, if not all, of his private power usage for the building for the month preceding the ?ood. Next, while the Respondent alleges that the use of electrical equipment to k_eeLth_e donated items d?greatly elevated the normal electrical usage for the property, the Panel notes that a portion of the Respondent?s sworn deposition testimony is particularly telling. During the Auditor?s examination, the Respondent provided the following testimony: [Examiner] Q: Okay. One of the expenses you .were reimbursed for appears to be for a power bill at home. Can you tell me about this? 29 See Strpulation Re Reimbursement For Mon Power AndA ?led June 22, 2013, City of Richwood Bob Henry Baber, Nicholas County Civil Action No. 17-P-54. 3? The impropriety of the reimbursement is only made clearer if the Respondent was reimbursed for the power usage of the apartment occupied by his daughter. As removal would clearly be warranted, under that circumstance, the Panel has given the Respondent every possible bene?t of a doubt and accordingly analyzed the claim based upon the determination that the reimbursement was for the power usage of the business space utilized for storing ?ood items. 31 Much like his testimony before the Auditor, the Respondent testi?ed during the evidentiary hearing that it was out of the kindness of his heart that he allowed his preperty to be used for the storage of ?ood items and there was no alleged wrongdoing as he was entitled to reimbursement for the power usage during the storage of said items. See Stipulated Exh. 22, WVSAO Transcript at pp. 166-168 donated the building. No good deed, I guess, goes unpunished"). 23 [Respondent] A: No, it?s not a power bill for home. It is a -- the bottom of the Deed Spencer store in Richwood, West Virginia. The clothes distribution center got pushed out of the armory. So I offered -- that space to the city to distribute clothes. But it was a rather damp, moist space, and also it had ?ood water in it, so while the bills seem relatively high is they had to run a number of humidi?ers and -- so they were just paying I donated the building. Stipulated Exh. 22, WVSAO Transcript at p. 166 (emphasis added). Following the ?ood, it is clear that the Respondent gained a personal bene?t by rtmning dehumidi?ers, fans, and heaters in his personal building to dry it out, regardless of storage or not, since, as his deposition testimony indicates, ?it had ?ood water in it.? Thirdly, no pro rata adjustment was made to the bills to distinguish personal power usage from the power allegedly used for the bene?t of keeping the donated items dry. As such, the Respondent was reimbursed an undetermined amount out of city funds for the Respondent?s own personal power usage for the building. Lastly, although under the exact same given circumstances another private party sought reimbursement for electrical use during the storage of ?ood related items, the ReSpondent was the only one to receive reimbursement on this basis.32 The Panel ?nds this is clear evidence that, due to his position as Mayor of Richwood, West Virginia, Bob Henry Baber received special ?nancial bene?t in the form of reimbursement for power usage at his' personal business property. The distinction between public and private becomes blurred 'when the two are mingled in such a manner as occurred here. public of?cial or public employee may not knowingly and intentionally use his or her of?ce or the prestige of his or her of?ce for his or her own private 24 gain or that of another person.? W. Va. Code 6B-2-5 (2008). Under the given circumstances presented herein, the Respondent?s behavior is the epitome of an improper abuse of one?s political position to gain personal favor, advantage, or gain. Moreover, ReSpondent?s attempt at trivializing his gain and exalting his sel?essness, offers this Panel no solace from this type of objectionable self-dealing conduct. Based upon the foregoing, the Panel ?nds that the Petitioner has provided suf?cient evidence to clearly and convincingly show that the Respondent impr0per1y received from city funds, reimbursement and payment for power bills incurred at a private business owned by the Respondent. Accordingly, the Panel ?nds and concludes that the Respondiant?s submission and receipt of payment as reimbursement for power usage at a building belonging to the Respondent constitutes of?cial misconduct and/or incompetence as those terms are de?ned by W. Va. Code 6-6-1, and, accordingly, warrant the removal of Bob Henry Baber from his elected position as Mayor of Richwood, West Virginia, pursuant to W. Va. Code 6-6-2. The propriety of the Respondent receiving reimbursement for his personal cell phone bills is not nearly as clear as the Respondent?s receipt of reimbursement for power usage. The testimony and evidence presented establish the following: 1) The Respondent sought and was reimbursed for his cell phone bill for the months of July, Autgust, September, and October of 2016;33 2) No other city of?cials were provided cell phones by the City of 32 Signi?cant testimony was presented that the owner of the GC Murphy building, a Judy Lund, also sought reimbursement for power used during the storage of ?ood items. The request was denied and further testimony revealed that only the Respondent received reimbursement under the given circumstances. 33 Stipulated Exh. 21, Bob Henry Baber bills for July, August, September, and October 2016. 25 Richwood;34 3) Only that portion of the cell phone bill correlating to the Respondent?s cell phone usage was submitted for reimbursement;35 4) the Respondent used the cell phone for personal and city business; and 5) no pro rata adjustment was made to the bill to delineate personal and city usage. Initially, the Panel is more inclined to ?nd that no improper conduct was suf?ciently proven regarding the reimbursement of the ReSpondent?s cell phonerl' bill, but, much like the power bill reimbursement, the Panel ?nds one issue particularly troubling; the Petitioner sought reimbursement for the July bill covering the service period of May 24, 2016, through June 23, 2016. In arguing the propriety of other issues before the Panel, the Respondent testi?ed that he was not Mayor until July 1, 2016. The Respondent further testified that following the June 2016 ?ood he began working for the city, be it as a volunteer or paid employee, as an incident commander addressing ?ood concerns. The relevance of this is that lthe ReSpondent potentially could argue reimbursement as an Incident Command Team (referred: to hereinafter as team member, while he acted in that position during the relevant portion of the June service period, but the reimbursed bill covers a period of time wholly before? the ?ood or the creation of the ICS team.36 In submitting and receiving reimbursement for the J'uly bill, the Respondent was 3? Testimony was presented that, shortly after the ?ood, the City of Richwood provided incident command structure commanders and team members with cell phones to communicate and coordinate the distribution of services and assistance during the early stages of the natural disaster. No other city of?cials weie provided with cell phones, or reimbursement for cell phone usage. 35 The ReSpondent's cell phone plan, as shown in exhibit 21, re?ects that the Respondent had multiple cellphone lines and numbers associated with his account. The Respondent?s daughter;- Cara Perkins, and others, were on the Respondent?s cell phone plan. Only that portion relating to the Respondent?s number was submitted for reimbursement. 36 Stipulated Exh. 21, Bob Henry Baber bills, July 2016 bill. The bill re?ects that the service period covered by the bill is from May 24, 2016, through June 23, 2016. During the period from June 23, 2016, through until June 26 paid from city funds for time before he was Mayor and before he was an ICS commander for the City of Richwood. Considering the foregoing in conjunction with the fact that no other City Of?cial was provided a cell phone or reimbursed for their personal cell phone usage by the City of Richwood, and the fact that no pro rata adjustment was made to delineate the Respondent?s personal and city usage,? the Panel ?nds that suf?cient evidence has been presented to show that the Respondent?s submission and receipt of reimbursement for the ReSpondent?s personal cell phone bills was improper. Much like the Respondent?s receipt of reimbursement for theI power bills, the Respondent?s receipt of reimbursement for his personal cell phone bill for time when he was neither the Mayor, nor an ICS commander, would also independently constitute of?cial misconduct and/or incompetence as those terms are de?ned under W. Va. Code 6?6-1, and the same would warrant the removal of Bob Henry Baber from his elected position as Mayor of Richwood, West Virginia, pursuant to W. Va. Code 6-6-7. 1 4. Submission and receipt of payment for time not worked and time that the Mayor is ineligible to receive payment for Next, the Petitioner asserts that While the ReSpondent was the Mayor, the Respondent submitted a request and was paid for time and overtime worked immediately prior to Mr. Baber taking of?ce as the Mayor of Richwood, West Virginia, while Mr. Baber was the Mayor elect. Further, the Petitioner alleges that Mr. Baber improperly reported and was paid for 6 hours that 24, 2017, West Virginia received roughly 10 inches of rain which resulted in Richwood, and many other locations in West Virginia, eXperiencing severe ?ooding. The reimbursement of this bill is for cell phone service provided prior to Mr. Baber becoming Mayor and wholly prior to the ?ood. 27 Mr. Baber clearly did not work. A signi?cant amount of testimony, much of it con?icting, was presented in regard to this particular allegation. The evidence established the following: 1) The work was performed around the end of June 2016, by Bob Henry Baber while he was performing in the capacity of an incident commander on the ICS team during ?ood recovery efforts after his election and immediately prior to Mr. Baber taking of?ce?3 2) At the time of the performance of the work, i Bob Henry Baber, was not a current employee of the City of Richwood and had no set rate of pay and no agreement to be paid; 3) At the time the work was performed, Bob Henry Baber, was unaware of whether he was going to be paid for the work or whether he was performing in the I capacity of a volunteer; 4) Prior to the submission of the time card, the Respondent contacted counsel for the City of Richwood and inquired whether it was appropriate and proper to receive payment for said time; 5) On August 22, 2016, prior to the submissidn of the time card, the Respondent was advised by counsel that he was ineligible to receiveiadditional pay or overtime for work done while he was the Mayor of Richwood, and that an argument that the pay was for time worked before becoming Mayor would likely be unsuccessfulf? 6) The Respondent submitted the time card claiming 80 hours of regular time and 16 hoiirs of overtime, for retroactive payment, several months after the work was allegedly performed; 7) Payment was authorized thereafter and the rate was established based upon a comp'arison with other similar ICS members functions and rates of pay; 8) The Respondent was paid $2,443.54 on April 27, 37 The Respondent testified during the evidentiary hearing that he used his personal cell phone for city business probably 85% of the time. I 8 See Stipulated Exhibit 20, Bob Henry Baber Timecard. 39 See Stipulated Exhibit 18, Letter from Harley Stollings to Bob Henry Baber. 28 2017, for work performed in June 2016;40 9) The Respondent sought payment for six (6) hours that the Respondent clearly had not worked;41 10) Council did not have any active oversight over the payment of ResPondent?s submitted time and did not discover it.? until investigating issues regarding P-Card usage; and 11) Upon discovery of the reporting error, the ReSpondent reimbursed the City of Richwood for the six (6) hours incorrectly claimed on the timecard. First, it is fairly evident, and the Panel accordingly ?nds, that Bob Henry Baber?s submission of a timecard claiming 16 hours per day for What was clearly 15 hours worked was not an intentional act but rather the result of a fallible person?s arithr?netic. Beyond that, the waters are more murky and were not cleared suf?ciently by the testimony and evidence presented before the Panel. What was cleariis that the work was performed prior to the Respondent taking of?ce as Mayor of Richwood, West Virginia. The burden to establish the claims warranting removal falls lipon the Petitioner, and while the circumstances involved herein, particularly the timing and?submission of a time card for payment, have the air of some impropriety, in this instance the Petitioner has fallen short of meeting its burden. Therefore, based upon the foregoing, the Panel ?nds and coricludes that the Petitioner has failed to establish by clear and convincing evidence its claim that the Respondent?s submission of a time card and receipt of payment for work and overtime performed prior to Mr. Baber taking of?ce, constituted of?cial misconduct, neglect of duty, incompetence, or any other statutory violation that would warrant the Respondent?s removal from his elected position as 4? See Stipulated Exhibit 1'7, Paystub and Check. ?See Stipulated Exhibit 20, Bob Henry Baber Timecard. Respondent claims 16 hours per day rather than 15 hours per day for work completed between 6 am. to 9 pm. 29 Mayor of the City of Richwood, West Virginia. i 5. Collusion with vendors to falsify and submit false/split invoices Finally, the Petitioner alleges that the Respondent colluded with vendors to submit false and/or split invoices for payment to make it easier for City Council :approval. The Petitioner cited to two speci?c instances: 1) Responden?i securing a bargain ?reworks display for presentation at the 2016 Cherry River Festival, and 2) Riespondent commissioning a promotional newspaper insert to commemorate the ?rst anniversaryl of the ?ood. As to the ?rst instance of alleged collusion, a council member testi?ed that the ?reworks vendor initially charged $500.00 dollars for the ?reworks display, ailtd the same was subsequently approved and paid, but, at a later date, the vendor subrillitted a bill for an additional amount. The Respondent testi?ed that when he negotiated with the ?reworks vendor it was his understanding that the total cost for the ?reworks display was indeed $5 0000 dollars and the Respondent argued that the City Council should not pay any additional amount because the ?reworks vendor is allegedly perpetrating fraud upon the city. Neither party called the ?reworks vendor to testify regardingi the occurrence. The Panel ?nds that the Petitioner has failed to present suf?cient evidence to show that the Respondent was indeed aware that the ?reworks display cost moie than the $500.00 dollars initially charged by the vendor, or that the Respondent colluded with the vendor to perpetrate fraud upon the city by billing a higher total amount in separate invades/installments. As to the second alleged instance, again neither party elicitedIItestimony from the vendor. The evidence presented on the matter showed that although an invoice was submitted 30 indicating that the actual cost of the commissioned insert was much' higher, the Richwood City Council was not required to pay any more than the billed amount. Essentially, the Respondent con?rmed this as he testi?ed that he convinced the vendor to indicate on the invoice the actual cost of the commissioned insert, but then to reduce it down, so as to re?ect how much the vendor was discounting the insert for the: City of Richwood. The Respondent further testi?ed that his reasoning was that since the vendor was providing the City with an exceptional value below the alleged actual cost, the Respondent wanted the City Council to be aware of that and give the vendor acknowledgement for his charitable pricing. As to this second instance, the Panel again ?nds that the Petitioner has fallen short of I presenting suf?cient evidence to establish that the ReSpondent colluded with the insert vendor to submit a false invoice, or that the ?gures listed on said invoice wereifalse or listed for some fraudulent, wrongful purpose. Based upon the foregoing, the Panel concludes that the Petitibner has failed to present suf?cient evidence to show that the actions of the Respondent regarding the billing invoice for a ?reworks display at the 2016 Cherry River Festival and the billing invoice for a promotional newspaper insert to commemorate the ?rst amiiversary of the ?ood, constitute of?cial misconduct, neglect of duty, or incompetence warranting removal of Mr. Baber from his position as Mayor of Richwood, West Virginia. CONCLUSION Based upon all of the foregoing, the Panel has determined that suf?cient evidence has been presented to establish that the Respondent, Bob Henry Baber, has committed one or more of the alleged violations outlined in the Resolution, constituting of?cial misconduct, neglect of 31 I duty, and/or incompetence as those terms are de?ned in W. Va. Cod'o? 6-6-1, thereby, warranting the immediate removal of Bob Henry Baber from his elected position as the Mayor of Richwood, West Virginia, pursuant to W. Va. Code 6-6-7. I NOW, THEREFORE, based upon all of the Foregoing and pursuant to W. Va. Code 6-6-1 et seq., it is the ORDER and JUDGMENT of this Panel tliat the Respondent, BOB HENRY BABER, shall be, and hereby is, REMOVED FROM THE ELECTED OFFICE OF THE MAYOR OF RICHWOOD, WEST VIRGINIA, and the said BOB HENRY BABER SHALL IMMEDIATELY TURN OVER ANY AND ALL RECOIRDS, PAPERS, MATERIAL, EQUIPMENT, AND PROPERTY OF HIS OFFICE OR PROPERTY BELONGING TO THE CITY OF WEST VIRGINIA, AND RELATING TO THE PERFORMANCE OF HIS POSITION AS MAYOR 0E THE CITY OF RICHWOOD, WEST VIRGINIA, TO THE INTERIM The Clerk of the Nicholas County Circuit Court is directed to send an attest copy of this Order Ruling Upon Resolution For The Removal OfBob Henry Babei? AS The Mayor 0f Ric/mood. West Virginia. Pursuant To W. Va. Code 6-6?7 to: Jaredl M. Tully, Esq., Frost Brown Todd LLC, 500 Virginia Street East, Suite 1100, Charleston, 'v?lV 25301; Richard A. Robb, Esq., P.O. Box 8747, South Charleston, WV 25303; and Senior Status Judge James Rowe, Nicholas County Courthouse, 700 Main Street, Summersville, 26651. A ?t this go td-ay of July 2013. . Wl/ Ow?w Paul M. Blake, Jr., Jud David Hl?w'ilmoth, Judge Robert E. Richarddon, Judge 32