WHEELING - City officials have filed a motion to dismiss the Wheeling Fraternal Order of Police Lodge 38's lawsuit seeking to invalidate voters' decision to overturn the city's two-officer per cruiser mandate, denouncing the litigation as a thinly veiled attempt to interfere with the electoral process.
The FOP lawsuit, filed Oct. 16 in Ohio County Circuit Court, claims City Council failed to follow proper procedure in voting to put the cruiser issue before residents as a municipal issue on the ballot and did not comply with notice requirements under the state's open meetings law. If Circuit Judge Ronald Wilson agrees, it could render the results of the Nov. 6 election - a nearly 2-1 vote in favor of striking down the 40-year-old mandate - null and void.
"It is clear the facts alleged are not accurate," City Solicitor Rosemary Humway-Warmuth's motion states. "Primarily the date the ordinance at issue was approved ... was never even mentioned" in the FOP suit, it continues.
File photo by Scott McCloskey
City officials are seeking to dismiss the Fraternal Order of Police’s lawsuit seeking to invalidate voter’s decision to overturn the two-officer per cruiser law.
The FOP lawsuit claims City Council heard a reading of the ordinance at its July 17 meeting and voted on it Aug. 7 - allegations that are contradicted by council's official meeting minutes, which reflect a 6-1 vote Aug. 21 in favor of holding the election. The lawsuit also claims council moved its Aug. 7 meeting time from 7 p.m. until noon without providing proper notice.
However, the city insists it followed all requirements with respect to the time change, including publication of a legal notice in the July 31 editions of both The Intelligencer and Wheeling News-Register.
Humway-Warmuth's motion also questions the FOP's decision to wait almost two months after council's vote to hold the election before filing its lawsuit.
The city "believes ... the petitioners had actual knowledge that such allegations were not accurate or made in good faith and the intent of filing the petition at this late date was made with the sole intent to harass, delay, or avoid timely return by the governing body so that the election on this ordinance could proceed ... ," the document states.
The city's filing contains a sworn affidavit from Police Chief Shawn Schwertfeger, in which he states that after meeting with City Manager Robert Herron and FOP President Thomas Howard, he addressed each shift during roll call on Aug. 3 - the same day council's Aug. 7 agenda was made public - and informed them that council would hear first reading of legislation calling for the cruiser election at that meeting and vote on it Aug. 21.
He further recalls seeing four police officers in the audience at the meeting during which council took that vote.
The city also suggests that because the FOP failed to request a hearing prior to the Nov. 6 election, the court could dismiss the lawsuit under the "theory of laches," a legal doctrine that prevents an injured party from seeking relief after failing to assert its rights in a timely manner.
FOP attorney Stephen Herndon on Wednesday called the city's motion "deceitful" and "disingenuous," and said he plans to file a response later this week. Humway-Warmuth said no hearing date has been scheduled in the case.