2in The Circuit Court Of Pocahontas County Annotated With Answer

IN THE CIRCUIT COURT OF POCAHONTAS COUNTY, WEST VIRGINIA This is an annotated paper in that the board’s response is indicated in bold black type at the end of the allegation.

Norman Lee Alderman, Plaintiff v.

Case No.

Pocahontas County Board of Education a.k.a Pocahontas Schools, Corporate Defendant 926 5th Avenue Marlinton, WV 24954 And co-defendants: Board Member Kenneth E. Vance, Individual Defendant Board Member Ruth Taylor, Individual Defendant Ex-Board Member Emery Grimes, Individual Defendant Board Member Tommy Vanreenen, Individual Defendant Board Member Jesse Groseclose, Individual Defendant Superintendent J. Patrick Law, Individual Defendant Board Treasurer Alice Irvine, Individual Defendant In their official and personal capacities. COMPLAINT Plaintiff, Norman Lee Alderman, moves for judgment against the Pocahontas County Board of Education and the individually named persons as enumerated above in their individual and official capacity on the grounds set forth and in the amount of $ 1,000,000 with defendants to be held jointly and severally liable in both their official and personal capacities. Statement of Facts 1. At all times, Norman Lee Alderman, was an employee of the Pocahontas County Board of Education. He has been employed by the Pocahontas County Board of Education from July 1980 until April 2006 at which time he was terminated due to conduct during a hearing concerning his proposed transfer. 2. Plaintiff is a twenty-six year veteran of the Pocahontas County Board of education. During his tenure he has served as a classroom teacher, gifted student instructor, homebound instructor and technology coordinator. 3. It is undisputed that Petitioner received favorable annual evaluations during these twentysix years.

4. Dr. J. Patrick Law, the current Superintendent of the Board, testified that Mr. Alderman always performed his duties in a favorable manner which, of course, is reflected in his personnel file submitted as a hearing exhibit. (Transcript “Tr,: pp. 17-20, 38-39) 5. While serving as his principal, Mr. Vance acknowledged that Mr. Alderman performed his duties in a satisfactory manner. (Tr. 57-61) 6. All witnesses testified and could not dispute the fact that Mr. Alderman was a 20 year employee with an exemplary teaching and service record. He never once threatened any students, called any student any inappropriate names or ever engaged in any inappropriate behavior with students. 7. The administrative law judge found that grievant has a long, productive work history and has made many positive contributions, as the Board has acknowledged.” ADMITTED 8. Plaintiff has never been placed on an improvement plan at any time during his 26 years of service to the Pocahontas School System. ADMITTED 9. Plaintiff has had a long and positive interaction with students. DENIED 10. Plaintiff was once named “Teacher of the Year” for Pocahontas County High School. ADMITTED 11. Plaintiff has never been officially reprimanded for his actions or “written up” for any transgression of school law or school regulations. ADMITTED 12. Prior to making his decision to recommend termination Dr. Law never reviewed Mr. Alderman’s personnel file. He does however admit that it contained favorable reports and evaluations. He admits that Mr. Alderman never engaged in any inappropriate conduct in the classroom or with students and has never called a student or co-worker any inappropriate names (tr. 15-19, 30) ADMITTED 13. On or about 1999, Plaintiff was transferred to the board office due to his efforts in developing a test analysis system which has received state wide attention. ADMITTED 14. Plaintiff is a community political activist, especially in respect to the manner in which the Board performed its duties. DENIED 15. Plaintiff has a long history of exposing corruption in local government and conducts a web site dedicated to that purpose. DENIED 16. Mr. Vance testified that he feels that Mr. Alderman’s criticism of the Board is helpful. (Tr 56) 17. At a board meeting on April 8, 2002 plaintiff attempted to videotape the Board meeting. As a result, the Board had him arrested and ejected from the meeting. ADMITTED TO 1ST SENTENCE.

18. As a result of a subsequent lawsuit, the Board agreed to pay Mr. Alderman a significant sum for attorney fees and personal damages. The Board also apologized to Mr. Alderman and agreed to undergo First Amendment and West Virginia Open Governmental Proceedings Act training. Dr. Law was aware of this litigation, Mr. Vance was on the Board and Mrs. Irvine was employed by the Board when he filed that matter. (Tr. 15-16, 48-50) 19. During 2003, plaintiff had successfully sought the removal of two board members, Kenneth Vance and Kermit Friel because they were illegally occupying more than one public office at the same time. (Tr. 62-68). A three judge panel agreed with his arguments and removed them. They successfully persuaded the remaining board members to reappoint them immediately. ADMITTED 20. During the same time, plaintiff unsuccessfully sought the removal of the school superintendent and another board member, Ruth Taylor. Both individuals participated in the termination hearing. ADMITTED 21. Dr. Law admitted that it is the Board policy to assist personnel in every way possible to adjust their positions and to perform their duties satisfactorily, yet he never attempted to assistant Mr. Alderman in any fashion. (Tr. 15-19, 30,39) ADMITTED WITH EXCEPTION 22. Dr. Law recognizes the Board has a host of alternative, less severe sanctions than termination such as counseling, probationary periods, improvement plans and suspensions with or without pay, yet he never provided Mr. Alderman with any of these alternatives. (Tr. 47-48) ADMITTED 23. The Board never submitted any evidence to establish that Mr. Alderman’s comments caused any actual disruption in the Board’s ability to perform its duties. DENIED 24. Dr. Law could not identify any nexus between Mr. Alderman’s comments and any problems at school and admitted that all of his concerns deal with Mr. Alderman’s behavior outside of his duties as an employee. (Tr. 20, 29) DENIED 25. Dr. Law testified that it would be a concern if a Board member was not legitimate and would cast doubt on the integrity of the Board’s actions. Yet to this day, Dr. Law has done nothing to investigate this matter. (Tr. 30-33, 41) 26. Dr. Law further admits that Board members are to not engage in immoral behavior and recognizes that is it is a legitimate opinion that an adulterer is engaged in immoral behavior. (Tr. 34) 27. Dr. Law admits that fiscal responsibility is critical for the Board and that the $2,500 of golf team money Mr. Alderman complained about was a significant amount. (Tr. 22) ADMITTED 28. Dr. Law admits that he suspended an individual for inappropriate sexual behavior between an individual and a student. (Tr. 26-28) ADMITTED

29. Plaintiff provided full and complete documentation to the Board pertaining to his claims that money was misappropriated by agents of the Board. ADMITTED 30. In the fall of 2006, plaintiff discovered a misappropriation of funds by school board treasurer, Alice Irvine and the school superintendent, J. Patrick Law. He brought this to the attention of the Pocahontas Board of Education. He provided complete documentation of his allegations. He reported this to the state auditor’s office in Charleston and personally visited Stuart Stickel the state official in charge of audits of school boards. ADMITTED 31. School agents who misappropriate public money should be embarrassed and questioned by the citizenry. ADMITTED BUT NOT RELEVANT IN THIS LITIGATION. 32. A sullying of a person’s professional reputation is the result of misappropriating public money not merely the exposing of the fact to the public. DENIED 33. Plaintiff’s speech was made with complete and fully supported documentation as to the correctness and accuracy of his statements and hence is protected speech. DENIED 34. A misappropriation of $2,500 is not a de minimus action. MISAPPROPRIATION OCCURRED

AGREE BUT DENY

35. Plaintiff had good, accurate, and just cause to believe that his report was valid. ADMITTED 36. The Board of Education has had months to correct the matter with the misappropriated funds and had not done so at the time of the termination. ADMITTED 37. Alice Irvine, Treasurer, perjured herself on the witness stand when she claimed that the $2,500 distribution was related to a reading grant and not to the golf money. Dr. Law was sufficiently concerned that he referred the matter to Joe Penetta of the State Finance Department. DENIED BUT ADMITTED THAT ALICE IRVINED MADE INQUIRY WITH JOE PANETTA ABOUT THE APPROPRIATION. 38. County treasurer, Alice Irvine’s testimony was material to the case in that the Administrative Law Judge used it in her order in making her decision which was adverse to plaintiff. DENIED 39. The Administrative Law Judges’ record was not delivered to the Kanawha County Circuit Court in a timely matter and therefore delayed the decision severely. Even when delivered, the video record did not accompany it and resulted in further delay. CLAIM LACK OF KNOWLEDGE AND DENY 40. Greg Bailey, supposed attorney for the Board, was operating outside his contractual obligations and privileges when he represented the board in the grievance hearing and subsequent court appearances. DENIED

“Unless you in writing advise us otherwise, it is out understanding that our services to the constituent county boards of education under this letter will consist of policy development, legal research, written and oral legal advice, document review, and similar legal services which do not include actual attendance at court, before the Grievance Board, or any other adjudicatory body.” 2000 A.D. Public Contract which Bailey successfully argued before the Administrative Law Judge was privileged information and not subject to discovery.

41. The Pocahontas Board was never authorized by law to pay attorney Greg Bailey for his services because they were never authorized by the board via the contract. This constitutes a misappropriation of public funds per WV 11-8-26. DENIED 42. Prosecuting Attorney, Walt Weiford, has not recused himself in this matter. ADMITTED 43. In 2008, a couple of weeks before the appeal to the Supreme Court was filed Bailey did submit to the board a revision of his contract. ADMITTED 44. Defendant’s counsel, Greg Bailey, has a contract signed 2000 A.D. for his services in the “interim.” However, there is no delineation as to what the term “interim” means. ADMITTED 45. In that contract, he specially states that he will not represent the board in any grievance proceeding or court hearing without written authorization. Yet, he has done so contrary to his contact and been compensated for his efforts. DENIED 46. In the fall of 2006, plaintiff brought to the attention of the school board that one of their members was an adulterer and that adultery was against state law. ADMITTED THE FIRST PART BUT DENY THE SECOND PART AND DEMAND STRICTEST PROOF. 47. Plaintiff’s challenge to board member Emery Grimes in regard to his adulterous relationship with a mistress was to establish lack of jurisdiction on the part of Grimes to sit in judgment on this matter. It was a question of actual residence which would have caused him to not be a board member by “operation of law.” He would as a matter of law not be eligible to sit on the board which terminated plaintiff. STATEMENT INVOLVES LEGAL MATTER BUT DENY FACTUAL ALLEGATIONS. 48. Immorality is a grounds for removal from a board of education per state law. It is inconsistent to claim that an employee can be dismissed for immorality and yet a board member cannot be dismissed for immorality. DENIED AS TO FACTUAL ALLEGATIONS 49. Adultery is an act against the peace and dignity of the State. §62-9-20; §61-8-3 and §618-4 DENIED AS TO THE FACTS 50. Plaintiff has previously requested that certain board members recuse themselves from participation in the matter due to their conflict of interest and otherwise. ADMITTED 51. Plaintiff’s discussion pertaining to the transfer was contained in the written documentation that he presented to all members of the board. He did not have time to present those issues within the twenty minutes allowed.

52. Plaintiff’s conduct was not disruptive in that he was speaking at a scheduled meeting of the Pocahontas Board of Education called specifically for the purpose of allowing an employee to speak out regarding his job. In this case, plaintiff spent his presentation time challenging the standing and jurisdiction of those who were sitting in judgment. This would not have be necessary had his request for recusal have been honored. DENIED 53. The video record will show that plaintiff did not shout at anyone on the board. DENIED 54. Mr. Kenneth Vance, board president and moderator of the transfer hearing never called Mr. Alderman out of order in the transfer hearing. ADMITTED 55. All matters discussed by plaintiff were pertinent to his proposed transfer. DENIED 56. Plaintiff’s speech was all a matter of public concern and hence is protected speech. DEMAND LEGAL CONCLUSIONS AND ARE DENIED AS TO THE FACTS 57. An employer may not retaliate against a whistle-blower, and any such act would be seen as an act of reprisal. W.Va. Code 6C-1-3. DEMAND LEGAL CONCLUSIONS AND ARE DENIED AS TO THE FACTS 58. Prior to that transfer hearing board member Tommy Vanreenen stated to another person that plaintiff “ought to be fired.” UNABLE TO ANSWER 59. When Mr. Alderman was scheduled for transfer hearing, he formally requested that board members Vance and Taylor not participate because of their potential bias in the matter due to his efforts to remove them in the past. DENIED 60. Plaintiff made extensive effort to challenge the jurisdiction of the board members in both the transfer hearing and the termination hearing but to no avail. DENIED 61. Plaintiff also raised objection to the presence of Tommy Vanreenen, a board member, because he was not a legal board member by reason of his violation of law. ADMITTED THAT PLAINTIFF RAISED THE OBJECTION BUT DENIED THAT HE WAS AN ILLEGAL BOARD MEMBER 62. Plaintiff complained that 20 minutes was not sufficient for him to make his argument before the board and he was told that he could make a written submission as a supplement to his oral presentation. He accepted this promise and submitted a written document. ADMITTED 63. The 20 minute period did not allow sufficient time for plaintiff to call any witnesses to the stand and the board refused to grant a sufficient extension to that time. DENIED 64. Plaintiff again sought the recusal of those board members who could not be objective in the hearing and they refused to recuse themselves thereby depriving him of a fair and objective hearing. UNABLE TO ANSWER

65. At all times relevant to this matter plaintiff spoke of matters directly and immediately related to issues and concerns which any ordinary citizen would have been concerned with. DENIED 66. Plaintiff did discuss all issues relevant to this transfer in his supplemental material DENIED 67. Plaintiff’s speech is protected by the United States Constitution and the Constitution of the State of West Virginia. The issues he raised were violations of statutory law. CLAIM THAT THIS IS A LEGAL CONCLUSION AND DENY THE ALLEGATIONS AS TO FACT 68. Plaintiff does not hold a position which is internally sensitive nor confidential other than that related to student information. DENIED 69. Plaintiff had no duty of confidentiality related to matters involving the violation of law and inappropriate fiscal matters. CLAIM THAT THIS IS A LEGAL CONCLUSION AND DENY THE ALLEGATIONS AS TO FACT 70. Plaintiff had no duty to conceal an adulterous relationship on the board of education. CLAIM THAT THIS IS A LEGAL CONCLUSION AND DENY THE ALLEGATIONS AS TO FACT 71. Plaintiff has no duty to conceal a misappropriation of county funds. CLAIM THAT THIS IS A LEGAL CONCLUSION AND DENY THE ALLEGATIONS AS TO FACT 72. Plaintiff made a video of the meeting and has submitted this as evidence in this matter. ADMITTED 73. The board has submitted no evidence that plaintiff has been wrong or in error regarding his allegations. DENIED 74. Judge Irene Berger of the Kanawha County Circuit Court ruled: “Because Mr. Alderman’s conduct occurred during a hearing to determine his transfer and because his speech addressed the propriety of certain board members deciding this issue, his interest outweighs the Board’s interest in avoiding the potential disruptiveness of that speech. “…there is an obvious nexus between Mr. Alderman’s speech and his termination. In fact, Dr. Law repeatedly cites his speech as the basis for his termination.” “…It is clear that Mr. Alderman’s speech is constitutionally protected. Upholding the Board’s decision to terminate him based on that speech was an abuse of discretion and the decision of the Administrative Law Judge is reversed.”

“The Administrative Law Judge’s decision that mediation of the severe penalty of termination was not required is arbitrary.” “Even if Mr. Alderman’s speech had not been protected, the Board violated its policy of progressive discipline in terminating Mr. Alderman. The conduct which allegedly amounted to insubordination justifying termination occurred at one hearing where Mr. Alderman was grieving his transfer to a different position.” It is violation of Board policy to terminate an individual for comments that occurred over a twenty minute period particularly in light of twenty plus years of outstanding service to the Board and the fact that Mr. Alderman has never been sanctioned.” This violation of the Board’s progressive discipline policy is particularly apparent when Mr. Alderman’s sanction is compared with less sanctions imposed on other employees for more severe behavior.” “During his tenure, Dr. Law has never with the exception of Mr. Alderman, terminated a Board employee.” For the reasons discussed above, this court finds that the decision of the Administrative Law Judge for the West Virginia Education and State Employees Grievance Board was arbitrary and capricious” and “clearly wrong in view of the reliable, probative and substantial evidence on the whole record.” NO ADMISSION OR DENIAL REQUIRED 75. The Pocahontas County Board of Education allowed for no mitigation of the matters involved in plaintiff’s speech. ADMITTED 76. The Board has a policy for progressive discipline despite defendants’ disclaimer that they don’t. ADMITTED THAT THEY OFTEN ENGAGE IN “PROGRESSIVE DISCIPLINE” DENY THE REMAINING ALLEGATIONS. 77. The Pocahontas County Board of Education is bound by its own policy to provide for progressive discipline and failed to do so in this matter. DENIED 78. Superintendent Law and the Board of Education members are bound by state law to provide progressive discipline. CLAIM THAT THIS IS A LEGAL CONCLUSION AND DENY THE ALLEGATIONS AS TO FACT 79. Such progressive discipline policy was submitted as an exhibit to the administrative court. ADMITTED BUT DENY THE REMAINING ALLEGATIONS REMAINING IN PARAGRAPH 79 80. At no time has plaintiff been insubordinate to any instruction or directive. DENIED 81. Stealing school money and committing adultery are matters of public concern. AGREE WITH THE PROPOSITION BUT DENY THAT THE PROPOSITION IS RELEVANT IN THIS LAWSUIT.

82. Plaintiff has not displayed contrition nor apologized because he is convinced that his speech was true and accurate. His motives were moral expressions of principles that he holds dear to his heart. DENIED LACK KNOWLEDGE OR INFORMATION TO FORM A BELIEF AS TO THE TRUTH OF THE ALLEGATION 83. Within a few days after the termination on April 25, 2006, plaintiff visited Dr. John Eilers with a complaint of increased stress and pain in his head associated with that. He was placed on an increased dosage of his depression medicine. DENIED LACK KNOWLEDGE OR INFORMATION TO FORM A BELIEF AS TO THE TRUTH OF THE ALLEGATION 84. Within a short time after plaintiff’s administrative hearing, plaintiff was stricken with a near fatal aneurism and lay incapacitated for several days. Doctors inserted a permanent shunt into plaintiff’s head which resulted in a visible disfiguration of his skull and a potential shortening of his life span. DENIED LACK KNOWLEDGE OR INFORMATION TO FORM A BELIEF AS TO THE TRUTH OF THE ALLEGATION CAUSE OF ACTION 1. Defendants failed to provide a fair and objective hearing in both the transfer hearing and the termination hearing. DENY 2. Defendants retaliated against plaintiff for having spoken out against violations of law committed by representatives of the Pocahontas County Board of Education. DENY 3. Defendants failed to follow their own policy and stated policy in regard to progressive discipline. DENY 4. Defendants failed to mitigate plaintiff’s actions. DENY 5. Defendants terminated plaintiff’s employment because of protected speech activity. Plaintiff was terminated for exercising his freedom of speech as guaranteed by the US Constitution, Article 1. DENY 6. Defendants violated plaintiff’s rights under the WV Whistleblowers Act. DENY 7. Defendants terminated plaintiff for conduct which was not insubordinate, not disrespectful, nor disruptive to the effective operation of the Board’s business. DENY 8. Board failed to treat plaintiff equally in regard to the manner in which it treated employee Glen Wade who has been indicted for sexual abuse by a custodian. He was allowed to retire without discipline from the Pocahontas County Board of Education whereas plaintiff was summarily terminated upon far less egregious allegations. DENY

9. The Pocahontas County Board of Education violated its own policy of progressive discipline, state policy, and general public policy. DENY 10. Plaintiff’s speech was constitutionally protected speech. DENY 11. The Board violated plaintiff’s numerous procedural and substantive rights. DENY 12. This action was contrary to law or lawfully adopted rule, regulation or written policy of the Pocahontas County Board of Education and the WV State Board of Education. DENY 13. This action was the end result of fraud and deceit. DENY 14. This action was clearly wrong in view of the reliable, probative and substantial evidence on the whole record. DENY 15. This action was arbitrary and capricious and characterized by abuse of discretion. (W.Va. Code 18-29-7; Randolph County bd. Of Education v. Scalia, 182 W.Va. 289 (1989) DENY 16. Plaintiff was, at all times, engaged in constitutionally protected activity and, as a matter of law, did not commit insubordination. Mr. Alderman has an unequivocal First Amendment right to engage in speech. First of all, he spoke as a private citizen on a matter of public concern. Secondly, the content of his speech outweighs the employer’s interest in providing effective services to the public, And Third, there was a sufficient causal nexus between the speech and the retaliatory action. This satisfies the law in Pickering v. Bd of Educat., 391 U.S. 563, 573 (1968); McVey v. Stacy, 157 F.3d 271 (4th Cir. 1998) DENY 17. The Board is prohibited from using Mr. Alderman’s speech as a basis for his termination because the Board failed to establish any nexus between the speech and his duties as a Board employee. DENY 18. Even if his speech was not constitutionally protected and the Board was entitled to discipline Mr. Alderman, it violated the progressive discipline policy by refusing to even consider imposing a less severe sanction than termination. The Board’s own policy states that it shall strive to assist personnel in every way possible to adjust to their position and to perform their duties satisfactorily. Every reasonable effort shall be made to avoid the necessity of dismissing personnel at any level.” DENY 19. As a direct consequence of this action, defendant was placed under enough stress to cause an aneurism to erupt in his head leaving him in capacitated for a period of time and requiring extensive rehabilitation. DENY 20. The Board’s termination of Mr. Alderman violates his protected status as a whistleblower. WV 6C-1-3(a) provides that no public employer may discharge, threaten or otherwise discriminate against an employee making a good faith report to the employer about an instance of wrongdoing or waste.” DENY

21. Because the comments occurred during a quasi-judicial proceeding, Mr. Alderman is immune from any sanction. Witness in judicial proceedings are entitled to absolute immunity from civil or criminal liability for any statements they make. Briscoe v. LaHue, 460 U.S. 325 (1985) The immunity has been extended to quasi-judicial proceedings such as Mr. Alderman’s transfer hearing. Farber v. Dale, 182 W.Va. 784, 786 (1990) DENY 22. Judge Berger cited the court in Pickering: The statements are in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher. Thus no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here. Appellants’ employment relationships with the Board and, to a somewhat less extent, with the superintendent are not the kind of close working relationship for which it can be persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning. Pickering v. Board of Education. 3981 U.S. 563, 569-570, (1968) Because Mr. Alderman’s conduct occurred during a hearing to determine his transfer and because his speech addressed the propriety of certain board members deciding this issue, his interest outweighs the Boards interest in avoiding the potential disruptiveness of that speech.—Judge Berger “…there is an obvious nexus between Mr. Alderman’s speech and his termination. In fact, Dr. Law repeatedly cites his speech as the basis for the termination.”-- Judge Berger RELIEF REQUESTED 1. Plaintiff be reinstated to his former position at the time he was terminated. 2. Plaintiff be reimbursed for all lost wages and attorney’s fees to date. 3. Plaintiff be awarded other compensatory and punitive damages for emotional distress and resulting disfigurement to his features and the potential decrease in his expected life span. 4. The record shall be expunged of this matter; plaintiff’s good name and reputation be restored to the official record. 5. The Board of Education shall issue forth a full apology for this matter in a public manner. 6. Pursuant to W.Va. Code 18-29-8, §6C-1-3, §6C-1-5. plaintiff requests a recovery of court costs, reasonable attorney fees from the Pocahontas County Board of Education, and any wages lost as a result of the Petitioner’s termination. __________________________________ Norman Lee Alderman, Pro Se Norman Lee Alderman, Pro Se

HC 82, Box 223a Marlinton, WV 24954

VERIFICATION The statements and allegations listed above are true and accurate insomuch as it is the belief and understanding of plaintiff, Norman Lee Alderman. Furthermore I attest that I have paid the filing fee and that I have paid to have service rendered via the Pocahontas Sheriff’s Office on the Pocahontas County Board of Education at its corporate offices in Marlinton, WV 24954 Norman Lee Alderman, Pro Se _________________________ Notary Statement I certify that I have personally witnessed Norman Lee Alderman sign this document this day April 22, 2008. Signed: __________________________________ Notary Public My commission expires on _________________