Former facilities director of Berkeley County brings wrongful termination suit

Jay Russell claims he was fired because he opposed wrongdoing and waste in county purchases of goods and equipment

May 15, 2012|By MATTHEW UMSTEAD |

MARTINSBURG, W.Va. — The former facilities director of Berkeley County claims in a lawsuit that he was wrongfully terminated in November because he opposed wrongdoing and waste in county purchases of goods and equipment.

The lawsuit filed May 4 in Berkeley County Circuit Court on behalf of Jay Russell of Winchester, Va., names the Berkeley County Council and Council Member Douglas E. Copenhaver Jr., as defendants.

Russell is asking for unspecified general damages; reinstatement of employment, benefits and seniority rights; back wages; future lost earnings and benefits in lieu of reinstatement; attorneys’ fees; and punitive damages, according to the lawsuit.

Russell also has asked the court to issue an injunction requiring the county to reform its purchasing practices “for the benefit of the taxpayers of Berkeley County and that ... Copenhaver be enjoined from acting unilaterally to steer county contracts to vendors of his choosing,” according to the four-page complaint.


Copenhaver said Tuesday he couldn’t comment on any of the specific allegations, but insisted the council is “very cautious” with how it spends taxpayer money.

Council attorney Norwood Bentley III declined to comment other than to say the county would defend itself “with vigor.”

Russell was terminated on Nov. 10 by a 3-2 vote of five-member council. Copenhaver made the motion to terminate Russell in a rare public personnel hearing.

Council members Elaine C. Mauck and Anthony J. “Tony” Petrucci joined Copenhaver in voting to terminate Russell, who had been employed with the county since 2006.

Council President William L. “Bill” Stubblefield and Council Member James “Jim” Whitacre voted against the motion.

Russell claims he was fired after he opposed Copenhaver’s demand that he purchase electrical supplies and equipment for the county from Tristate Electrical Supply Co., Inc., instead of Fastenal, according to court documents.

Russell said in the lawsuit that he opposed Copenhaver’s directive because Fastenal “could and would supply the necessary items at a significantly more competitive price.”

The lawsuit contends the defendants are liable for unlawful retaliation and his subsequent termination “for making or attempting to make good faith report of wrongdoing or waste” in accordance with the West Virginia whistleblower law.

It also asserts that Copenhaver “acted with malice or conscious and reckless disregard” for Russell’s legally protected rights by discharging him for making a good faith report of conduct.

Russell said he was notified on Oct. 6 that he was being placed on administrative leave for violation of the county’s fuel-card policy, according to the lawsuit. 

Later that month, Russell received a letter from the county informing him he was being charged with “theft, misappropriation, embezzlement, unauthorized possession or removal of Berkeley County property or the property of co-workers” and that the charges were being referred to Berkeley County Prosecuting Attorney Pamela Games-Neely, the lawsuit said.

Russell had not been charged with a crime as of Tuesday, according to court records.

In Russell’s personnel hearing, Deputy County Administrator Alan J. Davis revealed the discovery of a fund separate from the county’s general fund created for proceeds from the sale of scrap.

State law requires that all proceeds from the sale of surplus property be deposited into the county's general fund, County Administrator Deborah Hammond testified at the hearing.

The scrap was not sold at a county public auction after being declared surplus property, and Davis said the county found that only Russell and a few others had access to the money.

Both Russell and former County Commissioner Ronald C. Collins said in the hearing that employees also contributed to the fund by bringing in personal property to be sold for scrap. Collins testified that he approved of the idea to create the fund.

Davis testified that the money was used to replace tools for the department, but also was used to pay for meals and provide financial assistance to employees in need.

The Herald-Mail Articles