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March 8, 2017

Va. Supreme Court hears town building official’s case

The town hired Bob Hale as the lead building official in May 2006, but Warrenton’s attorney argues he never achieved permanent employment status.
I think it went well. I was pleased with my lawyer’s representation.
— Bob Hale, Warrenton building official
Hale v. Warrenton
• Plaintiff: Warrenton Building Official Bob Hale, hired in May 2006.

• Defendant: Town of Warrenton.

• Venue: Supreme Court of Virginia in Richmond.

• Issue: Whether his supervisors wrongly denied Mr. Hale an opportunity to challenge his November 2012 demotion through the town’s grievance procedure. In a hearing last week, the Supreme Court focused on “probationary” versus “permanent” employment status related to building officials’ ability to challenge their “removal” through grievance

• Hearing: 9 a.m. Friday, March 3.

• Plaintiff’s attorney: Richard J. Conrod Sr., Virginia Beach.

• Defendant’s attorney: Heather K. Bardot, Fairfax County.

• Next: Justices in coming months will issue their ruling.

• Audio: To listen to the hearing, click here.
By .(JavaScript must be enabled to view this email address)
Staff Journalist
Virginia Supreme Court justices Friday expressed skepticism about the Town of Warrenton’s position that its longtime building official never had permanent employment status.

After Bob Hale had held the job for about six years, his supervisors demoted him. Mr. Hale alleges that favoritism and politics prompted the demotion.

Town Manager Kenneth McLawhon and Planning Director Sarah Sitterle told him on Nov. 26, 2012, that he no longer would oversee the building department.

Mr. Hale lost his supervisory duties after then-Mayor George Fitch and prominent real estate owner Malcolm Alls complained about his allegedly aggressive and unfair inspections of their properties, according to court documents.

Hired in May 2006 as Warrenton’s lead building official — a position protected under state code, Mr. Hale tried to challenge his demotion through the town’s employee grievance procedure.

But, Ms. Sitterle in a July 16, 2013, memo told him he could not appeal the decision because his salary remained unchanged. With no pay cut, he couldn’t file a grievance, she said.

Mr. Hale, 67, earns $86,445 a year as the town’s fire marshal and a building official.

He filed a lawsuit against the town in Fauquier County Circuit Court on June 8, 2015.

His eight-page lawsuit contends the town violated state law because it demoted him before conducting a hearing on allegations related to his job performance.

Fauquier County Circuit Court Judge Jeffrey W. Parker conducted two hearings on the complicated legal dispute — one in 2015 and the other in 2016.

In both cases, Judge Parker upheld the town’s position.

Mr. Hale appealed to the Virginia Supreme Court, which in September decided to take the case after a hearing before a panel of three justices.

The complicated legal dispute largely hinges on whether the town “appointed” Mr. Hale as the “permanent” building official when it hired him 11 years ago.

The Virginia Administrative Code states that “the building official shall be appointed in a manner selected by the local governing body.”

It also states: “After permanent appointment, the building official shall not be removed from office except for cause after having been afforded a full opportunity to be heard on specific and relevant charges by and before the appointing authority.”

Referring to the code, Fairfax lawyer Heather K. Bardot, who represents the town, told the Supreme Court on Friday that Warrenton never “appointed” Mr. Hale as its permanent building official.

Ms. Bardot basically argued that Mr. Hale got hired in May 2006 as a probationary employee and still has that status.

Therefore, he would not be entitled to a “for-cause hearing” before his demotion, under state law, she argued.

Representing Mr. Hale, Virginia Beach lawyer Richard J. Conrod Sr. told the court that Warrenton hired his client as its lead building official.

Mr. Hale’s job offer letter from the town and other municipal documents, including permits, construction plans, court documents and the Warrenton Historic District Guidelines, identify him as the building official, Mr. Conrod said. Additionally, Mr. Hale supervised other town employees, the lawyer noted.

Mr. Hale years ago had passed any definition of a probationary period, making him a permanent town employee, Mr. Conrod argued.

Five of the seven justices questioned the two lawyers during Friday’s 24-minute hearing. They seemed sympathetic to Mr. Hale’s case and doubtful of the town’s position.

The justices wasted no time challenging Ms. Bardot’s argument that Mr. Hale never served as Warrenton’s permanent building official because he didn’t formally get appointed to the job.

As long as an employment agreement “doesn’t make clear you’re interim, or in some temporary capacity . . . then the default is you’re a permanent building official,” Justice Stephen R. McCullough suggested.

“Probationary status is at-will status,” Justice D. Arthur Kelsey said. “That’s what it is. And if you hire an employee on a probationary status and it has an expiration date, employment law does infer that at the end of the expiration,” one becomes a permanent employee.

Permanent status would entitle a building official to the protections provided by the state administrative code.

“Every one of your employee manuals says that, and the state grievance procedure says that,” Justice Kelsey said. “Best I can tell, that’s the norm everywhere.”

The justice asked Mr. Conrod if he believes that after the “probationary period expires, you’re locked into a permanent status.”

“That’s our position, your honor,” the lawyer replied.

Justice Cleo E. Powell basically made the same point.

Chief Justice Donald W. Lemons suggested the dispute might be resolved by sending it back to the circuit court for trial.

“We would be delighted to have the trial,” Mr. Conrod said.

“I could not have been happier,” Mr. Conrod said Saturday of the Supreme Court hearing. “I loved every minute of it. And, that’s why I thought, ‘Man, I’d like to do this again. I wonder if there are other people out there like Bob Hale we could help’.”

He suggested Mr. Hale “is in as good a place (legally) as he can be at this point.”

Of the case, Mr. Conrod said: “This isn’t just about Bob Hale. It’s about every building official and fire marshal in the state and protecting them” from political and other pressures as they perform their jobs to ensure building safety.

“I think it went well,” said Mr. Hale, who attended Friday’s hearing in Richmond. “I was pleased with my lawyer’s representation.”

While the Warrenton building official "hopes” the Supreme Court will rule in his favor, he said, “You don’t count your chickens until they hatch. It can go either way.”

It could take months for the justices to issue their ruling.

Ms. Bardot will update the Warrenton Town Council on the case in a closed meeting Thursday night, after an open work session.

No town official attended the Supreme Court hearing Friday morning in Richmond.

Ms. Bardot failed to return a telephone message seeking comment for this story.

Town Manager Brannon Godfrey, Town Attorney Whit Robinson and Mr. Alls declined to discuss the case.

Mr. Hale alleges that he got demoted and reprimanded after two confrontations with Mayor Fitch about work on his Main Street building.

In the first case, a contractor used an adjacent building to get access to the Fitch property for roof repair, according to Mr. Hale’s July 11, 2013, “Statement of Grievance,” filed with his lawsuit. The other property owner “removed the contractors as trespassing,” Mr. Hale wrote.

“Mr. Fitch asked that Mr. Hale condemn 11 Main Street (the neighboring building) as noncompliant in response to the property owner’s ejection of his contractors,” the document states. “Mr. Hale refused Mr. Fitch’s request. Mr. Hale was reprimanded.”

At some point thereafter, “Mr. Hale informed his supervisor that (Mr. Fitch) was installing noncompliant vinyl windows; Hale was reprimanded.”

Warrenton Architectural Review Board guidelines prohibit vinyl windows in the town’s historic district.

Mr. Hale also alleges that Town Manager McLawhon ordered him to stay away from properties owned by Mr. Fitch and Mr. Alls. The building official alleges he had several confrontations about inspections with Mr. Alls, who owns dozens of rental properties in town.

Mr. Fitch died Dec. 30, 2014. He retired as mayor six months earlier, after 16 years in the job.

Mr. McLawhon “retired” effective Jan. 1, 2015, to take the job as town administrator in Nolensville, Tenn. He hired Ms. Sitterle as Nolensville’s planning director in 2016.

Neither returned phone messages seeking comment for this story.

In his lawsuit, Mr. Hale seeks $150,000 in damages because of “harm” to his “reputation and standing in the community, as well as pain and suffering” as a result of “distress and anxiety.” He also asks for attorneys’ fees and other costs.

His appeal to the Supreme Court already has cost more than $30,000, according to Mr. Conrod.
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Jim Griffin · March 10, 2017 at 5:10 pm
nosugar:

The law is the law. It protects the lead building official because the state wants enforcement of building codes without fear or favor.

As regards my devotion to journalists, I plead guilty. Regardless of news outlet, print, online, radio or television, I am supportive and thankful for their efforts, just as I generally feel very appreciative for those who dedicate themselves to public service in any capacity.

Why? Because I feel fortunate to live in a wonderful community. This is a great place to live thanks to the efforts of many good people.

That having been said, I adore a good argument and no journalist or public worker is immune from my disagreement, though I typically reserve opposition for those I respect most.

In fact, the law requires cause when dismissing a Lead Building Official. Read the Code. It is reproduced with the article. Nothing to do with Lou or those who deliver news, all of whom draw my sincere thanks.

Thanks for your endorsement of a prospective candidacy, but I don't think my views represent those of the average constituent, so I'll leave the important votes to those who do.
LackingAliasCreativity · March 10, 2017 at 2:11 pm
This article pulls quotes directly from the Virginia Administrative Code found at 13VAC5-63-50. Please feel free to educate yourself. The code is actually the law, not an article or a blog.
nosugarcoating · March 10, 2017 at 11:17 am
Jim Griffin, a quick search of your devotion to Fauquier Now and Lou Emerson leads one to understand your remarks below. Blindly taking a series of statements blogged as fact or news and a lack of understanding of the law makes it easy to understand your statements. It sounds like you might be a good candidate for higher office.
Jim Griffin · March 10, 2017 at 10:23 am
Nosugar: Apparently you are neither familiar with the law nor did you fully comprehend the article, which explains that the law in question protects a particular category of employee: Lead Building Official.

Your claim that "there simply is no such guarantee" does not apply to lead building officials, who do have just such a guarantee, apparently for allegations like these, and precisely to address the imbalance of power cited by Miss B.
nosugarcoating · March 10, 2017 at 10:01 am
It is sad indeed to make claims against a man that is dead and served Warrenton for sixteen years. His widow deserves better. Miss B makes a good point in that there certainly are others that were or are at the center of things besides those no longer with the Town of Warrenton. Municipal attorneys are rarely out of the loop along with others in the organizational hierarchy. The idea of an at will state like Virginia designating a Permanent Employee is just nuts. There simply is no such guarantee.
MissB · March 10, 2017 at 9:39 am
Allowing those in positions of power to abuse that power should NEVER be tolerated. Kudos to Bob for standing up for what is right.

And while some of those at the heart of this are now gone, I’m willing to bet there are others who looked the other way knowing this was wrong and were too cowed by those in power to speak up against the injustice. This stuff happens far too often at every level of government and business.
Jim Griffin · March 9, 2017 at 9:23 pm
BTO Super Fan:

First of all, love the band!

Second, the burden may be covered by insurance.

Lots of towns have policies for "Taking Care of Business" every day! Better to settle than to "let it ride, ride, ride, let it ride," because time is money when spent in litigation.

Sorry for the pun. It was irresistible!

Jim
Bachman Turner Overdrive Super Fan · March 9, 2017 at 8:45 pm
While it is good that Mr. Hale is finally getting his day in court, we all share his burden. If there is a settlement or he prevails, we will all be paying - those are our tax dollars. Meanwhile, the three people at the center of it are long gone - Fitch passed away and the other two are both in TN.
TooTrue · March 9, 2017 at 2:46 pm
Mr. Griffin is right about this case being ripe for settlement. Because the Town chose not to seriously defend the case with qualified legal counsel, when or if they bothered showing up, it would make sense not to continue to be penny wise and dollar foolish.
Jim Griffin · March 8, 2017 at 10:39 pm
I know nothing about the people or activities in question, but I do know this from experience: The deal to which you agree is always better than the one imposed upon you. This matters sounds ripe for settlement. Both sides should seek one. Further litigation will simply add cost and justice delayed is justice denied no matter which side you are on.
BJ · March 8, 2017 at 8:47 pm
You go Bob! This is and always has been a "good ole' boy/girl" county, and that needs to be put to an end. It's all in who you know, and Judge Parker is one of that group, so his judgement in the case doesn't surprize me.

Blaine Johnson
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