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Lawsuit filed over hiring of fire chief

July 10, 2004|by CANDICE BOSELY

martinsburg@herald-mail.com

MARTINSBURG, W.Va. - An attorney representing the City of Martinsburg has said a lawsuit filed over the appointment of Martinsburg Fire Department Chief Paul Bragg should be dismissed because a one-year statute of limitations has expired.

On May 27, an attorney representing a firefighters' union - Local 805, IAFF (International Association of Fire Fighters) - filed a lawsuit saying Bragg's appointment should be voided because he was not required to take a civil service exam and because he was hired over other officers who were qualified for the position under civil service regulations.

Before coming to Martinsburg, Bragg was chief of the Beckley (W.Va.) Fire Department, which is in the southern part of the state near Kentucky.

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On Tuesday, Claudia Bentley, attorney for the city, filed a motion to dismiss the suit.

Because Bragg was hired on Sept. 10, 2001, the latest such a lawsuit could have been filed was Sept. 10, 2002, one year after his appointment, Bentley said. Such cases must be filed within one year, she wrote in her motion.

The attorney for the union, Lawrence M. Schultz, alleged in his two-page lawsuit that the hiring of Bragg was a violation of state code, which requires all positions within a fire department be filled under civil service rules.

Also, Schultz wrote, the city's charter requires that civil service rules be applied to all salaried employees of the fire department.

"Since the defendant violated both the state code and its own charter in the appointment of Chief Bragg, the appointment should be declared void ab initio and of no force and effect," Schultz wrote.

Schultz also said Circuit Judge Christopher Wilkes, who has been assigned to handle the case, should order that a new chief be hired from the civil service list.

Bentley countered that in addition to the expired statute of limitations, the suit should be dismissed because not all members of the union likely were affected.

"Throughout the plaintiff's complaint, the plaintiff fails to mention which individuals were more qualified than Paul Bragg or even which individuals applied for the position of chief," Bentley wrote. "Rather the plaintiff implies that the entire membership of the Martinsburg Fire Fighters union have been aggrieved, when in actuality only the individuals who were qualified and who applied for the position could conceivably have an argument that they have been injured."

If the suit is allowed to proceed, the city will be negatively affected, Bentley said.

People's memories are not as clear now as they would have been two years ago, meaning "the individuals involved would be engaged more in a guessing game rather than reiterating the facts," Bentley wrote.

Also over the last three years, membership on the Martinsburg City Council, city boards and commissions has changed, Bentley said.

When reached Friday afternoon, Bentley said she did not want to comment beyond what was written in her motion to dismiss.

Schultz did not return a phone call Friday seeking comment.

No hearings have been scheduled in the case, which Schultz indicated in court paperwork would be ready for trial by May 2005.

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