Fitzwater suit documents
Brent Finnegan -- April 28th, 2008
Dave Briggman and Myron Rhodes have posted Fitzwater – Neal lawsuit documents on republitarian.com, which chronicle the series of events leading up to the investigation of the treasurer’s office, as well as Cynthia Fitzwater’s role as whistleblower, and her demotion by Becky Neal which followed.
Pages 8 and 9 detail the demotion, and the role of republitarian.com. The suit alleges:
33. Fitzwater complained that [her demotion and pay cut] by Neal was retaliatory, to no avail [...]
35. On or around January 31, 2008, Fitzwater learned from a co-worker that a blogspot on the internet maintained by a local farmer who had run unsuccessfully for Clerk of Court against the plaintiff and Benny Neal, among eight others, made reference, in following up on the execution of the search warrants, to a grand jury convening on February 19 and to the demotion of Cindy Fitzwater in the Treasurer’s Office.
36. The posting on the blog created the false implication that Fitzwater was a guilty party.
37. Fitzwater was extremely upset at the false implications [...] the farmer agreed to remove the posting which included her name. Within minutes of the Fitzwaters pulling up to meet with the farmer, Neal and her husband drove up demanding to see documents presented by the farmer [...] That night, Benny Neal left a long intimidating message on Fitzwater’s voice mail [...] Neal and her husband drove by Fitzwater’s house in Grottoes over that weekend on at least two occasions.
That takes the term “blog drama” to a whole new level.
Fitzwater is seeking a restoration and reinstatement of her job duties and salary, as well as back payment of lost wages totaling over $900 (growing $72.80 each week) and $10,000 in attorney’s fees.
From previous conversations with Myron, and others, I’m pretty sure that Myron didn’t intentionally imply Fitzwater was guilty of anything, let alone any malfeasance of office.
It was a comment by someone else. I knew Cynthia was the whistleblower from the beginning.
A couple of questions occur, one about motivations, one about process.
First, was firing a woman on Monday, as Myron details, an attempt to get it done before Thursday’s hearing. That is, does the treasurer expect bad news at the petition hearing?
Second, will the commonwealth’s attorney’s office be able to use any of the evidence from its criminal trial in presenting the petition case? Do the two issues present a conflict, or are they all part of the same case?
I think we’ll see much of the evidence that will be used in the criminal case at the hearing on the petition, Thursday, likely in an attempt by Marsha to cause Neal pause to perhaps enter a plea in lieu of a trial.
I would think that Marsha would also see, if Neal fights the petition, the “tactics” David O’Donnell will employ in a criminal trial, should one occur.
Joe, Diane is the only city resident working in the office which means she is the only one who the judge could name as a temporary replacement. If all other employees work outside of Harrisonburg then the judge would just give the duties to one of the deputies.
Unbelievable.
I believe the “farmer” was incorrectly identified…shouldn’t that be “farm hand” instead???
In my earlier question: I was wondering if the employee in question was one the treasurer wanted to be rid of, for whatever reason, and if said treasurer felt that Thursday’s results will be such that any official actions need to be done quickly.
A defendant in a criminal case has the Fifth Amendment right to remain silent, and her silence cannot be used as evidence of her guilt. A civil proceeding, on the other hand, does not afford similar protection. The respondent, therefore, is placed in a difficult predicament with constitutional implications when the civil proceeding comes first in time. Should she testify at the civil proceeding in an effort to defend herself in that action knowing that her statements from the civil hearing can be used by the prosecutor in the criminal trial? Or does she remain silent in the civil proceeding to preserve her Fifth Amendment rights, perhaps effectively conceding the issue in the civil case?
The elementary school “do you like me? y/n”-style letter on official letterhead from Neal to Fitzwater blows my mind.
Aaron, does Becky have to testify at this hearing if Marsha calls her, since it is not a criminal trial?
“The elementary school “do you like me? y/n”-style letter on official letterhead from Neal to Fitzwater blows my mind.”
Agreed. This is someone who (imho) seems to not understand her authority — or its limits.
Beyond that, it blows my mind that she did not think there would be repercussions, in the courtroom, in public opinion, or otherwise. Why increase the paper trail? This document gives worlds of insight into the way Ms. Neal thinks and acts, which in this case is probably not good for her.
So help me understand the legal difference between this demotion and the firing of Dianne Fulk before her opponent took office.
The similarities between the Fulk dismissal and this one are obvious. Yeah, I don’t know any of the ‘inside info’ on either instance, and can only comment based upon what I’ve read here and in the paper — but both elected officials (Neal and Harper) display a stunning lack of judgement.
This whole thing would be really funny if it were happening somewhere other than where I live. It is an embarrassment that this is how the people who represent me act.
Part of this story that’s part of the wallpaper is that constitutional officers, once elected, serve more or less for life (plus one year, in Rockingham County), and without redistricting to help them either. They can fire and hire at will and absent a lawsuit or a controversy (Fitzwater, Fulk, respectively) life goes on. They do have to meet minimum standards, such as not floating personal checks through the office till, but they pretty much get away with what they will. I don’t know the statistics, but anecdotally, most people don’t know who the clerk, treasurer, or commissioner of the revenue are until they see the name on the ballot, unopposed, again. In 20 years, one constitutional officer that I know of, a prosecutor, has been defeated in H’burg/R’ham.
Repub 10:33am, The respondent can be called to testify and she can successfully assert her Fifth Amendment privilege to avoid answering questions that may incriminate her. However, her refusal to answer questions can be held against her deciding the petition. If I’m her attorney the first thing I would do is move to stay the proceedings until after the criminal trial because of these constitutional concerns. Disclaimer: these comments apply to civil cases generally; I have not researched whether there are special rules applying to this particular action to remove a constitutional officer. I’m sure Mr. O’Donnell will have done his homework and will be ready for court.
Thanks, I was thinking along those lines…
Ready for court? He just asked for a continuance saying he needed more time….;O)