#dontennant

IN THE CIRCUIT COURT OF MARSHALL COUNTY, WEST VIRGINIA Marshall County Commission, Petitioner, v. Eric Bryan Buzzard, Respondent. Case No. CC-25-2025-P-98 Judge Jeffrey D. Cramer MOTION TO DISMISS PETITION FOR REMOVAL Respondent, Eric Bryan Buzzard, through counsel, moves to dismiss the Petition for Removal from Elected Office filed against him by the Marshall County Commission because the Petition is defective and fundamentally fails to comply with West Virginia law. Mr. Buzzard is the twice-elected Assessor of Marshall County. He was elected and served his first term from January 1, 2021, to December 31, 2024. He was reelected and began serving his second term on January 1, 2025. In its Petition, the Marshall County Commission states that all the allegations in support of Mr. Buzzard’s removal from office occurred “specifically between January 1, 2021, and November 3, 2024” – during Mr. Buzzard’s first term. Petition at ¶ 2. Despite this, the Commission did not file its Petition for Removal pursuant to W. Va. Code § 6-6-7 until September 19, 2025, during Mr. Buzzard’s second term of office. “Under W. Va. § Code, 6–6–7, as amended, a threshold question is whether the removal proceeding was filed during the term of the public officer in which the transaction(s) in question occurred.” Syl. Pt. 2, Summers Cnty. Citizens League, Inc. v. Tassos, 179 W. Va. 261, 262, 367 S.E.2d 209, 210 (1988). “As a general rule offenses committed or acts done by a public officer during a previous term of office are not cause for removal from office in the absence of disqualification to hold office in the future or additional penalty imposed by law upon the person removed from office.” Syl. Pt. 1, Smith v. Godby, 154 W. Va. 190, 190, 174 S.E.2d 165, 167 (1970). In Smith v. Godby, the removal proceeding was filed during an elected assessor’s third term, after the term in which some of the transactions in question occurred, and the Court held that those particular transactions could not constitute grounds for removal from office. See Summers Cnty. Citizens League, Inc. v. Tassos, 179 W. Va. at 266, 367 S.E.2d at 214 (citing Smith v. Godby, 154 W. Va. 190). Here, the Marshall County Commission relies “specifically” on alleged misconduct that occurred during Mr. Buzzard’s first term. Because this Petition was filed during Mr. Buzzard’s second term, only transactions occurring during his second term could constitute grounds for removal from office under W. Va. Code § 6-6-7. Accordingly, the Petition is fundamentally flawed, violates established legal precedent, and dismissal is the only appropriate outcome. Wherefore, Mr. Buzzard moves this Court for (1) an order dismissing the Marshall County Commission’s Petition for Removal from Elected Office and (2) an order directing the Marshall County Commission to pay Mr. Buzzard’s court costs and reasonable attorney fees, as required by W. Va. Code § 6-6-7(j). Eric Bryan Buzzard, Respondent. By counsel, /s/ Maximillian F. Nogay William J. Ihlenfeld (7465) Maximillian F. Nogay (13445) Flannery | Georgalis, LLC Post Office Box 9 Wheeling, West Virginia 26003 (304) 308-6699 [email protected] [email protected] CERTIFICATE OF SERVICE I hereby certify that, on October 3, 2025, I electronically filed the foregoing with the Circuit Court of Marshall County, West Virginia, using the West Virginia E-Filing system, which will send notification of such filing to all counsel of record. Eric Bryan Buzzard, Respondent. By counsel, /s/ Maximillian F. Nogay William J. Ihlenfeld (7465) Maximillian F. Nogay (13445) Flannery | Georgalis, LLC Post Office Box 9 Wheeling, West Virginia 26003 (304) 308-6699 [email protected] [email protected] Marshall County Assessor Eric Buzzard currently faces seven felony counts of fraud, and investigators said in June the state’s probe would continue and that more charges are possible. IN THE CIRCUIT COURT OF MARSHALL COUNTY, WEST VIRGINIA MARSHALL COUNTY COMMISSION, PETITIONER. V. ERIC BRYAN BUZZARD, THE ASSESSOR Marshall County West Virginia, RESPONDENT CASE No: CC-25-2025-P-98 Petitioner’s Response to Respondent’s Motion to Dismiss First, the Respondent selectively quoted a part of Paragraph 2 of the Petition that did state a specific time frame “ between January 1, 2021 to November 30, 2024”, however, prior to the specific time frame Petitioner stated: “All of the allegation contained herein occurred during the aforementioned terms” thus including activity in both Respondent’s terms of office as set forth in Petition at Paragraph #1 including the Respondents second elected term of January 1, 2025 to December 31, 2028. In addition, the Petition clearly sets forth wrongful acts that occurred during Respondent’s 2nd term wherein the Petition for Removal was filed. Specifically, allegations in Count II (P-Card use) and Count V (Garage Storage Rental and Kickback). The Garage Rental lease was “approved” on February 4, 2025 (see Exhibit 12 to the Petition) and all of the “kickback” payments were paid by Rayl (out of a Florida Bank Account) to Mr. Buzzard and deposited into his personal bank account in 2025. (see Exhibit 13 to the Petition). The Count II header specifically includes improper P-Card transactions up through March 25, 2025 (3 months into Mr. Buzzards’ second term). Thus, even if the Court accepts the limiting language of the holding ( which the Petitioner argues below should not be done) in the case of Smith v. Godby, 154 WVa 190, 174 SE2d 165 (1970), decided 55 years ago, the Respondent’s Motion here should be denied on the basis that the Petition contains allegations of wrongful conduct in the term of office the Petition for Removal was filed in, 2025. While the Respondent correctly recites Syllabus Point 1 of Smith v. Godby, the key words in the Syllabus Point is “As a General Rule”: “As a general rule, offenses committed or acts done by a public office during a previous term of office are not cause for removal from office in the absence of disqualification to hold office in the future or additional penalty imposed by law upon the person removed from office.” (Syllabus Point 1 Smith). The Smith v. Godby case facts, did not by the end of the trial in Circuit Court, and the earlier case of Wysong v. Walden, 196 SE 573 (WV 1938), involve allegations of criminal embezzlement, criminal fraud and criminal theft of public monies as does the case at Bar. Nor did Summers County Citizens League Inc. v. Tassos, 179 WVa 261, 367 SE2d 209 (1988) involve criminal law violations. In fact, Respondent is currently charged criminally with the allegations contained in Count IV of the subject petition for removal (see Marshall County Magistrate Court Case State v. Buzzard Case No.25-M25F-00159). On the issue of the persuasiveness of the “General Rule” espoused in Smith v. Godby the strength of the Rule was called into question in the Dissent wherein Justice Calhoun stated: “I would not assert with assurance that the proposition stated in the first point of the syllabus represents a general rule or even the weight of authority. In an annotation of the subject in 17 ALR 279, the following statement appears at page 285: ‘...there is an almost equal number of cases to the contrary effect, that such misconduct (in a prior term of office) may constitute a ground for removal or impeachment.” So, the Petitioner herein argues that either the “General Rule” is in fact “wrongly” accepted by the Smith v. Godby Court or due to the substantial differences between the alleged wrongful activity in Smith v. Godby ( failure to properly appraise and assess property generally) versus the egregiousness of the criminal conduct committed by Respondent Buzzard, an exception to the General Rule should be adopted herein. The fundamental reasoning for a modified rule is that the General Rule would permit a Public Officer in the last year of his/her term to commit egregious and even criminal acts wherein the event as concealed, secreted or camouflaged would not be found by any routine State audit until the early months of the next term if re- elected. Thus, the General Rule would coat the public official at a minimum with a layer of Teflon to avoid removal based upon the acts during the prior term BUT only discovered in the next term due to the timing of the usual, normal course of the State audit process (in fact, for example, the State Audit has not yet been  completed for the 2023 year for Marshall County). This cannot be what the Smith v. Godby Court intended to allow. Thus, given the specific acts of theft, fraud and intentional misappropriation laid out in the petitioners’ Counts I ( 10 withdraws by Mr. Buzzard from the Assessor’s Agency Account and then depositing these monies in his personal bank account amounting to $7,102.72); Count II ( P-Card misuse totaling $4,120.36); Count III ( 17 withdraws by Buzzard form PVC Account for a total of $8,128.18); and Count IV (7 payments made by J. B. Meade directly to Mr. Buzzard for the sale and purchase of a total of 11 vehicles for the Assessor’s Office and deposited in his personal bank account totaling $48,114.97) with a total loss to Marshall County of $117,841.23. The Petitioner argues that a specific exemption to the General Rule should be created due to the obvious need to address the continuing criminal illegal activity that was hidden and not discovered by authorities until a completed audit investigation was conducted in the Respondent’s 2nd term. In the case at bar, the evidence will be presented that the State and County was not with proof of Mr. Buzzard’s illegal thefts until the State Fraud Audit was conducted in 2025. Otherwise, and illogically the General Rule gives the Public Officer a “free pass” as it relates to removal, which is unacceptable when in particular taxpayer money has been thieved. In the alternative and in the event the “General Rule” in Smith v. Godby is applied herein, the Petitioner argues all of the acts and events in the first term are at a minimum admissible to show an ongoing course of wrongful conduct illuminating Buzzard’s motive and intent to commit the acts alleged in Count II and Count V. In support of the admissibility proposition, Judge Calhoun, in his dissent in Smith v. Godby stated: “...However, although acts preceding election are not grounds for removal, they may be considered in so far as they are connected with or bear on the officer’s general course of conduct during the current term, for the limited purpose of inquiring into his motive and intent as to the acts and omissions charged to him during his second term.” In fact, in Smith v. Godby, the Court admitted fiscal year misbehavior that straddled the new term, thus permitting to be considered the former term behavior in the subsequent term removal proceedings. Wherefore, Petitioner contends that the Respondent’s Motion for Dismissal should be denied. PETITIONER,MARSHALL COUNTY COMMISSION ________________________________ By its Counsel,Donald J. Tennant, Jr. Donald J. Tennant, Jr. WV State Bar #3718 38 Fifteenth Street Wheeling, WV 26003 304-230-3200 [email protected] Certificate of Service Service of the above Petitioner’s Response to Respondent’s Motion to Dismiss was had on Counsel for the Respondent by filing this document on the WV E-Filing electronic system on October 10, 2025. ______________________________ Of Counsel for Petitioner Read the full article