Xmotion3

MOTION FOR SUMMARY JUDGEMENT FOR FAILURE TO PROVIDE DUE PROCESS TO PLAINTIFF Whereas, plaintiff has been denied due process throughout the entire period of litigation; he does now respectfully request this court to render a summary judgment in favor of his claims and provide the relief as requested in his original petition to the court. Background Level One Violations of Due Process 1. This process began in 2006 when the Pocahontas County Board of Education determined that Norman Alderman should be transferred from his position in the board office to Pocahontas County High School where he had previously served for 17 years. 2. He had never been reprimanded; never had a blemish on his record, and had in fact been elected Teacher of the Year by his school colleagues. In those 17 years, he had sustained annual evaluations with no black marks on record. He was never accused of inappropriate behavior with any student, never had sex with any student, never had sex with teacher on or off school time as other of his colleagues had or would have during that time period. 3. He had exposed a misappropriation of public money by the superintendent and the board treasurer involving a scheme to funnel the governor’s contingency fund money through the school system to a former employee of Senator Walt Helmick who had worked as a water bottler for Helmick’s water plant. 4. A misappropriation did occur: WEST VIRGINIA CODE §11-8-26. Unlawful expenditures by local fiscal body. Except as provided in sections fourteen-b, twenty-five-a and twenty-six-a of this article, a local fiscal body shall not expend money or incur obligations: (1) In an unauthorized manner; (2) For an unauthorized purpose;

(3) In excess of the amount allocated to the fund in the levy order; (4) In excess of the funds available for current expenses. The exhibits I am providing with this filing prove that a misappropriation occurred. There was a cover-up by the board, the superintendent, and his secretary to hide the truth of the transaction. The prosecutor at the time had sufficient probable cause present the matter to a grand jury and did not. The issue was alive and ongoing despite the WV Supreme Court’s conclusion that it was settled and resolved. The fraud which was allowed with the ALJ system led to the false conclusion of the West Virginia Supreme Court. 5. a. He had previously brought a legal action against Board President Kenneth Vance in which a 3-judge panel appointed by the West Virginia Supreme Court did grant Alderman’s citizen motion that Vance be removed from his office as Pocahontas County Board Member. Furthermore, plaintiff had raised an issue of “doubledipping” regarding Vance’s wife who worked at PCHS and who could have been impacted by the transfer of plaintiff back to the high school. It is noteworthy that in the past when a question of personnel matters affected the high school that Vance did recuse himself from the question at the time of the decision. Plaintiff contends that this failure of recusal was a denial of his due process rights. b. Plaintiff contends that Kenneth Vance should have recused himself from participation in the vote of termination because this previously legal confrontation and the fact that his own wife was engaged in questionable acts with the high school. Furthermore, Kenneth Vance had previously been involved in a lawsuit with plaintiff regarding his constitutional right to video tape a meeting. Vance had to apologize for his untoward actions against Alderman and to undergo First Amendment special training by the Ethics Commission. 5.

6.

Likewise, plaintiff had unsuccessfully attempted the removal of another board member, Ruth Taylor. Plaintiff contends that she should have recused herself for personal reasons. He had exposed the fact that one board member, Emery Grimes, the elected representative from the Northern District was living outside his district with a concubine, namely the former Janet May, who lived in the Central District. Said Emery Grimes openly co-habited with this concubine and in fact had a child by her.

7. a. He had exposed the legal fact that one board member, Tommy Vanreenen, was no longer a board member by operation of law because he had violated WV Code 18: _______ which states ___________________.

b. This is significant because the Pocahontas County Board’s Policy states that they shall operate by Robert’s Rules of Order. That nationally recognized authority on parliamentary practice states that _______________________ c. In this particular case, as it relates to the instant matter, Tommy Vanreenen actually “seconded” the motion for the termination of Norman Alderman from his position. Hence, in direct violation of accepted and majority approved board policy, Tommy Vanreenen violated board policy, generally accepted parliamentary procedure, and the due process rights of Norman Alderman when he seconded the motion to terminate him from his employment. The violation of due process in summary: There was no legitimate “process” involved in the termination of Norman Alderman. Emery Grimes and Tommy Vanreenen were not legitimate members of the board. Ruth Taylor and Kenneth Vance both had personal conflicts with plaintiff that any common sense of propriety would have removed them from the decision process. Level Two Violations of Due Process: 1. When plaintiff filed his grievance process, obtained an attorney, and appeared at the Level Four hearing with Judge Denise Spatafore, the board was represented by Greg Bailey, of Bowles, Rice, McGraff and David, a Charleston law firm. 2. But Bailey did not have a valid contract with the board to represent them in a hearing before the Grievance Board ALJ. In fact, his contract specifically stated that he WOULD NOT REPRESENT THE BOARD in court or at a grievance hearing without special authority. Hence, Bailey was practicing law without authority. Judge Denise Spatafore as we will show shortly made an incredible decision not to permit plaintiff’s access through discovery to Bailey’s contract which would have permitted plaintiff to challenge his presence in the courtroom that day. Hence, a violation of due process!! 3. a. Secondly, Judge Denise Spatafore failed to disclose that she herself was practicing law without a license due to the fact that she had rendered herself out of compliance with state law which specifically requires that an ALJ must taken continuing legal education courses during her tenure as an ALJ. In other words, Spatafore had no more jurisdiction to hear this case than Santa Claus would have had. b. This came to light two years after in September 2008 when the West Virginia Grievance Board suspended her for failure to comply with the requirements of the West Virginia State Bar. She along with another woman was suspended from hearing cases. Again we have a failure of “due process.” Plaintiff’s have a reasonable expectation that their cases will be heard by a qualified and bona fide ALJ. The law presumes that those requirements by the board are “legitimate” qualifiers for one to serve as an administrative law judge in the State of West

Virginia. Had plaintiff had a bona fide and qualified ALJ she might well have intellectually comprehended the matters of labor law as they passed before her in review at the hearing. In the instant, case she was not trained properly (as required by the state bar) to deal with the questions at hand. (We are including a memorandum related to the question of “continuing legal education.” Hence, the violation of my “due process” rights. 4. The Question of Res Judicata: This is a legitimate question as raised by the court in a previous hearing and it has not fallen on deaf ears. Res Judicata demands that there be a valid judgment rendered by a court of competent jurisdiction. The fact is that the West Virginia Supreme Court has heard this case on appeal from the board. It chose to reverse the decision of a bona fide Circuit Judge, Irene Berger in favor of the unqualified ALJ, Denise Spatafore. But that does not in itself remediate the question of due process. The Board itself has raised the question of a “finding of facts.” Such finding of facts is an essential part of the judicial process and cannot be ignored. West Virginia law establishes a process that is due the plaintiff as it pertains to factfinding. We would argue that the “fact-finding” by an unqualified ALJ again is no more qualified that Santa Claus rummaging through his toy sack. Because Ms. Spatfore had failed to educate herself current labor law, she was unable to render a sound decision regarding the facts of the case. An example serves well in this case: Spatafore refused discovery for Bailey’s legal contract with the board and plaintiff’s request for a public document, the minutes of a board meeting. These are illustrative of the general level of disingenuous intellectual ability of this unqualified, inadequate trained ALJ. Spatafore has a track record for her decisions against plaintiffs. In Pocahontas County alone, she had never rendered in decision in favor of a plaintiff. We conducted a statistical study of ALJ’s across the state of West Virginia and it confirmed that the ration of denials versus granted decisions is approximately 9 to 1 in favor of boards. This alone should raised concern in the judicial system because it is far and wide beyond the statistical levels of probability. The legislature is constantly monitoring this process and in fact last year revised the system to a point. The current grievance system has some inherent flaws which we believe will not pass judicial review should this matter come to court. First of all, the system as revealed in the most recent dispute over the two ALJ’s utilizes a “round-robin” system of review. This means that the hearer of the facts is not necessarily the sole determiner of the validity of the facts. Persons who have never participated in the fact-finding process suddenly find themselves reviewing the actions of the fact-finder. This unseen, closed door group of reviewers consistently find in favor of boards of education. It would be like having a jury trial but half the jurors are

in another room and are not allowed to hear the testimony. That is why we referred to the process as a “star chamber,” an ancient and discredited process from the Dark Ages. Secondly, the system has a built-in device for ensuring that legal decisions of the ALJ’s are “approved” by higher authority. The “will and pleasure” provision of the ALJ’s hiring ensures that there is a higher level monitor in the system who expects compliance with a predetermined norm, in this case a high ration of denials to granted decisions. Whether or not there is a predetermined dictate may be up to question but the statistics will show that in Grievance decisions, the employees’ chances of winning are about 9 to 1 and that is by the Grievance Board’s own statistics. If an ALJ doesn’t “toe-the-mark” they are fired. And this actually happened with one ALJ, Tom Gilghooy. He recently settled with the Board over his termination. There were published reports that some employees had felt that he ruled too much in their favor and was terminated. The question that came forth in the Grievance process was that he claimed that he was terminated because he questioned the legal bona fides of Spatafore and Gould. Since that was settled we may never know! Should Norman Alderman lose his career and his future while the Grievance System is in this state of flux? That is the question at hand! I continue that the Grievance Process is fouled up in West Virginia. We, employees, are not getting “Due process” from the Grievance System. And it is for this reason that I as a terminated employee turn to Judge James Rowe for justice. JURISDICTION TO GRANT SUMMARY JUDGEMENT The court has an obligation to do justice. A judge has an obligation to do justice. This has been a constant theme of my three year battle with the Pocahontas County Board of Education and Pocahontas County in general. I hold to the religious principle that when a person knows to do right and refuses to do right that they are wrong. The Ted Stevens Case: In that most recent case, Senator Ten Stevens lost his race for senate and in part because he was accused of a crime strategically right at the time of his campaign. But when the judge probed the matter he discovered that the prosecution hadn’t played fair. And he, the judge ordered a special prosecutor to investigate the matter. This proves conclusively to me that a judge has the authority to investigate the integrity of the judicial process. If they don’t, what hope have we?

WASHINGTON (CNN) -- A federal judge on Tuesday set aside the conviction of Republican former Sen. Ted Stevens while excoriating the case's prosecutors. A courtroom sketch shows ex- Alaska Sen. Ted Stevens at Tuesday proceedings, where he said he had "new hope." District Judge Emmet Sullivan also appointed an independent, nongovernment attorney, Henry Schuelke III, to investigate possible misconduct by the government lawyers who prosecuted the 85-year-old former senator from Alaska. "In nearly 25 years on the bench, I've never seen anything approaching the mishandling and misconduct that I've seen in this case," Sullivan said. In October, Stevens was found guilty of seven counts of lying on Senate ethics forms. He lost his bid for re-election in November to Democratic challenger Mark Begich, then mayor of Anchorage. In December, an unnamed FBI whistle-blower accused prosecutors of withholding evidence from the defense. The whistle-blower reported that someone with the government had an inappropriate relationship with Bill Allen, an oil industry executive who was the government's key witness.

The Ben Wilfong Case: Right here in Pocahontas County we have a sheriff’s deputy on administrative leave because of allegations that he falsified information to prove that he had paid a bill for which he was being sued in magistrate court. As it turned out the documentation that he provided under oath were checks that were written on a bank that didn’t exist by that name at the time they were “written.” He may well have ended his career in law enforcement because of this. But when this falsification was pointed out by the plaintiff in the matter, magistrate Kersener-Vanover personally submitted a subpoena ducs tecum to the bank to determine the validity of the testimony in her court. In other words, when she suspected foul play, she took it upon herself to validate the integrity of the testimony in her own court. And I applaud her for her courage and truth-seeking. This is what I am asking this court to do, seek the truth about the testimony in this case. I have openly contended that there has been fraud committed on the courts at the grievance level, at the circuit court level, and even at the Supreme Court level. Where will the intervention take place to determine the truth of the testimony? I am asking it to begin in the Pocahontas County Circuit Court!

It is totally unfair for the question of Res Judicata to be raised until the validity of the testimony is tested under oath and the opportunity to cross-examine the witnesses regarding their testimony under oath. RELIEF REQUESTED I will not back the court into a corner in this matter. All I ask is “due process.” I am totally confident that I can and shall prevail in a court wherein truth is presented in the absence of fraud. I am requesting an evidentiary hearing before a court of competent jurisdiction. Whether that be the Pocahontas County Circuit Court or a remand to the ALJ process, that is a decision I leave to the court. I can assure you that the next ALJ that I face will be completely and totally vetted by me personally. I will not trust the system to do the job because it is woefully certain that they will not vet their own employees. Due Process—that is the operative phrase!!!

Sent to: Respondent’s Attorney Chip E. Williams, #8116 Pullin, Fowler, Flanagan, Brown & Poe, PLLC 600 Neville Street, Suite 201 Beckley, West Virginia 25801 I certify that I have mailed a copy of this document to the above and included a copy in the Circuit Court of Pocahontas County on this day April 22, 2009 Signed: ______________________________________ Norman Lee Alderman, Pro Se HC 82, Box 223a Marlinton, WV 24954 [email protected] 304-799-7374

I certify that I have mailed a copy of this document via first class mail to the above and included a copy to the Circuit Court of Pocahontas County on this day April 24, 2009

Norman Lee Alderman Signed: _____________________________________ April 24, 2009