Former Cape Charles Public Works Director Sues for FOIA Violations, Wrongful Termination

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By Stefanie Jackson – David Fauber, Northampton County supervisor and the former Cape Charles director of public works and utilities, sued the Town of Cape Charles in August for $500,000 in damages for violating the Virginia Freedom of Information Act, aka FOIA, and wrongful termination.

Judge Revell Lewis III, of the Northampton County Circuit Court, issued an order Oct. 26 regarding the FOIA violations, but the wrongful termination issue remains unresolved.

Court documents prepared by Fauber’s attorney, Kevin Martingayle, of the law firm Bischoff Martingayle, in Virginia Beach, state that Fauber was fired by Mayor Smitty Dize in February.

On Feb. 10, the mayor told Fauber he was terminated, effective within two weeks. Fauber also was informed of his termination in an undated, undelivered letter signed by Dize, according to court records.

Dize’s letter stated that the director of public works and utilities position would be eliminated  as of Feb. 24.

Fauber questioned the “how, when, why or … what authority” justified the decision.

He requested documentation of closed sessions in which the Cape Charles town council discussed his employment or the director of public works and utilities position. Fauber suggested that his inquiry should be treated as a FOIA request.

Libby Hume, Cape Charles town clerk and FOIA officer, replied Feb. 13 and informed Fauber there were no minutes indicating any closed session from Sept. 1, 2019, to Feb. 11, 2020, in which Fauber or his job was discussed.

Martingayle later contended that the Cape Charles town council “never comes out of closed sessions and holds a vote on anything that may have been decided or approved,” in violation of FOIA.

On Feb. 18, Hume notified Fauber that there were minutes from a Nov. 7, 2019, strategic planning session and a proposed, new organizational chart for Cape Charles town employees.

The title “director of public works and utilities” did not appear on the organizational chart. Instead, an “operations manager” was listed, who would oversee three lower-level managers of various departments.

In a Feb. 10 email, Dize assigned four people to management positions that appeared to correspond closely to the positions listed on the proposed chart.

He named Scott Neville as water plant manager, Patrick Christman as wastewater plant manager, John Lockwood as public works manager, and Billy Powell as utilities maintenance manager.

In the same email, Dize also assigned human resources manager Jodi Outland to the office previously occupied by the director of public works and public utilities.

Martingayle asserted that the Cape Charles town council also had violated Virginia Code by not advertising to the public the possible elimination of the director of public works and utilities position, failing to keep accurate minutes of discussions, and holding unauthorized closed meetings.

Dize served Cape Charles in a dual role during 2019 and 2020, as both mayor and interim town manager until John Hozey took over as town manager in March. Dize’s temporary role was authorized by the town council.

Martingayle stated that the town manager “has authority over employees” but not to eliminate positions, so Fauber was wrongfully terminated by Dize.

Martingayle asserted that Fauber was denied of due process and his termination “damaged Fauber’s good name, reputation, honor and integrity,” negatively affecting perception of him by future employers.

Judge Lewis’ Oct. 26 order applied to all the defendants, including Dize and Cape Charles town council members Chris Bannon, Steve Bennett, Andy Buchholz, Paul Grossman, Tammy Holloway, and Andrew Follmer.

The defendants were ordered to read the entire Virginia Freedom of Information Act by Nov. 1, comply in perpetuity to all open and closed meeting requirements specified by Virginia Code, and pay Fauber’s legal costs of $14,000.

The defendants in the wrongful termination suit, which is ongoing, include the Town of Cape Charles, its mayor, and the town council as a whole, not as individual members.

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