A three judge panel, established by the West Virginia Supreme Court of Appeals, issued its ruling last week, stating that the resolution filed by Durbin Town Council in December 2020, pertaining to an incident at the September 8, 2020 meeting, did not provide clear and convincing evidence for the removal of Michael Vance from his elected position as Mayor of the Town of Durbin.
The resolution called for Vance’s removal based on what was deemed “official misconduct” related to his behavior during that September 8 meeting. The resolution alleged that Vance “assaulted Steve Diaz causing reasonable apprehension of immediately receiving violent injury.”
The matter was presented in the Pocahontas County Circuit Court in February 2021 before the Honorable Judge Robert E. Richardson, wherein the court denied Vance’s motion to dismiss the case.
Judge Richardson forwarded a copy of the resolution to Chief Justice Evan H. Jenkins, of the Supreme Court of Appeals of West Virginia, requesting the impaneling and convening of a three-judge court to hear and rule on the matter.
The appointed judges were the Honorable Paul M. Blake, Jr., Judge of the Twelfth Judicial Circuit, the Honorable Jack Alsop, Judge of the Fourteenth Judicial Circuit; and the Honorable H. L. Kirkpatrick, III, Judge of the Tenth Judicial Circuit.
In its June 29 order, the Panel determined that “the plaintiff [Durbin Town Council] failed to prove by clear and convincing evidence that Mayor Michael Vance committed official misconduct warranting his removal as the Mayor of the Town of Durbin.”
The order goes on to state, “Prior to the hearing in this matter, the Panel was provided an audio copy of the recorded town meeting and had the opportunity to listen to the meeting in detail. Comparing the contents of the audio tape and transcript to the testimony presented at the evidentiary hearing, the Panel to a great extent questions the credibility of essentially all of the witnesses that testified, as much of the testimony that was presented on both sides appeared contrived, embellished or rehearsed.
“The decision in this matter hinged upon the Panel’s evaluation of the consistencies and inconsistencies of all of the respective testimony.
“When recognized at the meeting, the alleged victim, Steve Diaz, initially discussed appropriate business and town matters, however, it is clear that, while in the presence of the other council members and meeting attendees, Mr. Diaz intended to segue from the business discussion into his personal grievances with Mr. Vance.
“Mr. Diaz’s demeanor and tone was not agitated or aggressive while addressing the council members.
“Although advised numerous times that the council meeting was not the appropriate forum to air his personal grievances with Mr. Vance, Mr. Diaz continued, unabated.
The discussion developed into an argument exclusively between Mr. Vance and Mr. Diaz. At no time during the argument were there any threats of violence or cursing between Mr. Vance and Mr. Diaz. The two men did exchange limited disparaging remarks, however, as Mr. Diaz referred to Mr. Vance as a pervert and Mr. Vance called Mr. Diaz a liar…”
“The defendant, Michael Vance, left his seated position during the meeting and quickly approached the alleged victim, Steve Diaz. Mr. Vance admitted to council later that he was mad and apologized for his conduct…”
The order further states, “While this Panel has concluded the removal is not warranted in this matter, the Panel wishes to impress upon the parties that this decision was very close. Mayor Vance’s conduct and words were clearly inappropriate conduct by a public official.
“Further, considering this Panel’s review of the audio recording of the September 8, 2020 Durbin Town Council meeting, the official transcript of said meeting, and the testimony in this matter, this Panel finds it necessary to admonish Mayor Vance and other Durbin Town Council members on the manner in which the meeting was conducted and the individual conduct essentially exhibited by multiple parti- cipants at the meeting.
“Well before the incident that gave rise to these removal proceedings, other council members were also involved with bickering and arguing with meeting attendees that elevated to disparaging comments and calling someone a liar. This particular meeting had an air of hostility and animosity that apparently carried throughout the entire meeting.
The order continued, “Elected officials are held to the highest professional and ethical standards and must always conduct themselves in a manner that instills confidence and trust in the electorate.
“Moreover, the old adage of “sticks and stones” is simple, but true, and regardless of the hostility faced, an elected official must continually remain calm and conduct themselves in a manner that defuses hostile situations rather than inflames them.
“As an elected official, verbally arguing, exchanging unpleasantries and using disparaging remarks during an official proceeding is highly inappropriate and unprofessional and has no place in public service regardless of whether you are an elected official in a small rural town or large urban city in the State of West Virginia.
“The Panel does not in any way condone the behavior of Mayor Vance, or any elected official that conducts themselves in such a manner and this Panel finds such conduct to be unprofessional and unbecoming of any elected official.
“Be that as it may, this Panel has ultimately concluded that removal is not warranted in this matter.”
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Durbin Council members, Plaintiffs, in this matter were Mark Smith, Thelma Smith, Eugene Warner, Donald Peck and Kenneth Lehman.
Smith, Warner and Leh-man voted in favor of the resolution, Smith abstained and Peck voted against it.
Durbin held a municipal election June 8, 2021, in which Shereen Bailey was elected mayor; John Osborne, recorder; and Mark Kane, Buster Varner, Donald Peck, Eugene Warner and Kenny Lehman were elected as council members.
The new mayor and council took office July 1, 2021.
The first regular council meeting will be Tuesday, July 13, at 7 p.m.