Gould city attorney asks judge to dismiss Barley-Gibson lawsuit


Gould City Attorney Gene E. McKissic is asking a circuit court judge to dismiss a lawsuit from former Gould Recorder-Treasurer Pamela Barley-Gibson that seeks back pay as well as compensatory and punitive damages from the city of Gould and Mayor Earnest Nash Jr.

Fayetteville attorney Amos J. Richards of the Holthoff & Richards, LLP law firm filed the suit on Barley-Gibson’s behalf on March 1 in Lincoln County Circuit Court.

The suit says that Barley-Gibson was appointed to her post on Feb. 14, 2012, to serve the remainder of former recorder-treasurer Mary Prewitt’s term, which was to expire on Dec. 31, 2012. (Prewitt had resigned in December 2012, saying that she was “afraid” of Nash.)

Barley-Gibson was actually appointed to the position several times, beginning in December 2012, by the Gould City Council only to have Nash veto — or attempt to veto — each appointment. Nash claimed that Barley-Gibson did not live in the city limits of Gould and that the council had appointed her illegally.

However, Circuit Judge Rob Wyatt, during various court actions in late 2012, ruled that Barley-Gibson’s appointment was legal. The judge also ordered Nash to give Barley-Gibson the keys to her office and to City Hall as well as access to all city records she may need.

“Plaintiff Barley-Gibson was granted access to the office by receipt of a key to the door,” her lawsuit says. “Access to the computer, accounting records, and other implements and information needed to fulfill her position were never provided, however. On learning Defendant Nash failed to provide access to the necessary item, this Court held Defendant Nash in contempt, and ordered his arrest.”

Wyatt ordered Nash jailed and held without bond on October 10, 2012, but then ordered his release late the following day after separate but similar motions seeking his release from Hank Bates and Bruce McMath, two of Nash’s attorneys.

On Oct. 30, 2012, Wyatt granted a joint motion from opposing sides in the ongoing civil actions in Gould to dismiss lawsuits then still on the docket and to cancel a contempt hearing for Nash scheduled for Nov. 1, 2012.

Barley-Gibson served as recorder-treasurer until Dec. 31, 2012. She sought election to the position but was defeated in November by challenger Kisha James.

The suit contends that Barley-Gibson’s appointment as recorder-treasurer “created a contract between the parties” and that she should have received her salary of $21,000 per year, but she “was never compensated for her duties, constituting Defendants’ material breach of contract.”

No one on the city of Gould’s payroll — including Nash, members of the City Council, former court clerk Linda Howell, police officers and a city street worker — received any pay from December 2011 until January 2013, except for one payment to the City Council in April 2012 issued by Barley-Gibson. Reasons for the nonpayments were because city bank accounts were frozen for a time and also because Barley-Gibson said Nash would not let her in her office. Nash also said that he didn’t know where the city accounts were kept.

Barley-Gibson is seeking “lost wages, interest, fines and fees accrued from an inability to pay bills.”

Additionally, Barley-Gibson is claiming “tortuous interference” because Nash allegedly failed to give Barley-Gibson “full access to the records needed to fulfill her duties” and because the mayor allegedly “harassed” Barley-Gibson while she worked although Nash had “direct and constructive knowledge of Barley-Gibson’s right to perform her duties…”

The suit also says that the defendants’ failure to pay Barley-Gibson was “done intentionally and with malice,” constituting a breach of contract.”

Barley-Gibson is again seeking lost wages, interest and penalties and fees from unpaid bills “as a result of the interference.”

The suit also says that Barley-Gibson “suffered humiliation as the direct result of the Defendants’ interference with her ability to perform her duties and make timely payments to her outstanding financial obligations.”

Barley-Gibson is seeking a financial judgment “in the amount to be proven at trial.” She also demands a jury trial.

The case has been assigned to Wyatt’s court.

McKissic argues in his answer to the suit that Nash never denied Barley-Gibson access to her office, computer, accounting records or anything else “needed to perform the duties of her office.”

McKissic also asserts that Barley-Gibson “willfully failed to perform the duties and responsibilities of the office of recorder-treasurer for the city of Gould due to … no fault of [Nash.]”

McKissic also states that because of Barley-Gibson’s “willful nonperformance of her job responsibilities, she is not entitled to be paid any salary or benefits for the period she held the position of City Recorder Treasurer.”

The city attorney then asserts the “affirmative defense of res judicata as the issue was not pursued in the two prior civil actions filed by Plaintiff against these Defendants.”

The New Oxford American Dictionary defines res judicata, or literally, “judged matter,” as “a matter that has been adjudicated by a competent court and may not be pursued further by the same parties.”

McKissic asks the court for a hearing on his motion and also asks Wyatt to dismiss Barley-Gibson’s suit.