A little more than a week after the Lynchburg City Council voted 5-2 to censure at-large council member Marty Misjuns for bad behavior, Misjuns has appealed the decision in court.
The council took up the censure at the close of its Nov. 28 meeting, meant as a disciplinary measure for his “disorderly behavior and misconduct.” The corresponding document lists several complaints under that umbrella, including threats and insults to city staff, attempts to subvert city personnel processes, general lack of decorum and an alleged clandestine setup targeting a fellow council member.
Having breached the topic of bad behavior with Misjuns in prior months via email and letters, Mayor Stephanie Reed added the censure to the council’s agenda through a temporary suspension of council procedure rules. Beyond placing Misjuns on notice to “change course or potentially face future reprimands permissible under Virginia Law,” the censure issued a $833 fine on Misjuns based on his pay as a member, due by the end of January.
Misjuns and Ward III council member Jeff Helgeson were the only members to vote against it. In response to Reed’s introduction of the censure, Helgeson called it a “hit job” that was out of order and sets a bad precedent.
The censure itself is without precedent in Lynchburg, as reported by The News & Advance after consulting with city staff.
In a three-page appeal filed in Lynchburg Circuit Court on Friday, Misjuns claimed that the censure and fine violated city code, state law and both the Virginia and U.S. constitutions. His filing claims the censure was “negotiated by council members in advance of the business meeting, drafted in secrecy, and introduced without notice.”
Misjuns also implies violation of Virginia law that “prohibits the use of public positions to retaliate ‘against any person for expressing views on matters of public concern or for exercising any right that is otherwise protected by law.’”
The appeal names the city, the Lynchburg City Council, City Manager Wynter Benda and all other members of council except Helgeson. Reed deferred comment on the appeal to the city attorney, and a call to the city attorney’s office was not returned as of press time.
In a news release Monday announcing his appeal, Misjuns called the censure maneuver a “politically charged show trial based on unchallenged allegations.” He similarly protested a lack of a “one-on-one discussion” with Reed about the issues prior to the censure.
Misjuns did write a response letter to Reed in October on allegations about the clandestine set-up, where he warned she was “spreading unsubstantiated and unfounded claims, that include false elements,” but did not address the core issue: allegations that he solicited a college student to secretly record a town hall with Vice Mayor Chris Faraldi and ask tough questions of him.
“Due process requires government to give you notice before it acts against you and seizes your property, and it gives you an opportunity to face your accuser,” he’s quoted as saying in his release.
One state code section cited in the appeal allows governing bodies to punish a member for disorderly behavior, and city code similarly states that council “may punish its members for disorderly behavior” — neither go into any further detail about the process.
Carl Tobias, the Williams Chair in Law at University of Richmond, said that although he doesn’t specialize in local law, Misjuns is likely entitled to some sort of due process to challenge the censure.
“We usually allow the people who the government is punishing to have a day in court, and even more so, of course, when there’s some dispute between public officials,” he said.