WEST VIRGINIA RECORD

CHARLESTON – Kanawha County Prosecutor Mark Plants says he will not appeal a panel's ruling to remove him from office.

Instead, he says he will open his own law practice.

On Monday, Plants issued a press release stating his intentions.

“My family and I have been attacked for almost a year,” Plants said in the statement. “I love being a prosecutor, but refuse to allow my family to be subjected to this any longer.

"I’m excited to begin the next chapter in my life. I’ll be opening my own law practice where I can fight for the rights of others who have been treated unjustly.

Last week, Kanawha County Commissioners said they would publish a legal advertisement for the position.

When Plants does leave office, the commission can either appoint a temporary prosecutor or a replacement who will serve until the end of Plants’ term in January 2016.

The Kanawha County Republican Executive Committee have recommended assistant prosecutor Chuck Miller, Charleston City Councilman Chris Dodrill and Marty Wright. Wright and Dodrill work in the state Attorney General’s office.

Last month, a three-judge panel ruled Plants would be removed from office because of his misconduct, malfeasance, neglect of duties and violation of court orders.

The three-judge panel hearing the removal testimony – Preston Circuit Judge Lawrance Miller, Berkeley Circuit Judge Christopher Wilkes and Doddridge Circuit Judge Timothy Sweeney – ruled that Plants’ actions constituted wrongful conduct in admittedly hitting one of his children with a belt, leaving bruises.

“The three-judge court is not making a finding that Mark Plants did or did not intentionally cause the physical harm by proof beyond reasonable doubt,” the final order states. “That finding is better suited for a jury, if and when  Mark Plants is tried on his criminal charges. …

“The three-judge court is not ruling that corporal punishment of a child is impermissible as a matter of law, and this question is not before us. … The three-judge court finds striking a child with an object with enough force to cause bruising that can be seen at least four days later is unreasonable and therefore wrongful.”

To justify removing Plants from office, the judges said this wrongful conduct must “affect, interrupt or interfere with the performance of official duty.”

“This three-judge court finds that Mark Plants’ wrongful conduct has substantially interfered with the performance of his official duties, and has further caused him to neglect his duties as prosecuting attorney.”

The judges say Plants has a conflict of interest in prosecuting domestic violence allegations because of his actions, noting “abuse and neglect cases are among the highest priorities of a circuit court’s docket.”

“Not only is it a significant portion of his work, it is perhaps the most important portion of a prosecutor’s job,” the panel writes.

In the commission’s petition filed in August, attorney Melissa Foster Bird wrote that “Plants must be removed” immediately from office because of his misconduct, malfeasance, neglect of duties and violation of court orders.

“Any attorney holding a public office is held to the highest possible standard of conduct,” the petition stated. It goes on to say Plants “has repeatedly engaged in wrongful conduct that betrays this higher standard.

“Mark Plants has committed neglect of duty because he has agreed to an indefinite disqualification that precludes him from performing indispensable and statutorily required duties of an elected prosecutor. To that end, Mr. Plants’s disqualification has, as of the date of this petition, cost Kanawha County in excess of $300,000.

“The Kanawha County Commission has determined that such ongoing and irreparable financial harm to the taxpayers of Kanawha County must not be allowed to continue.”

The petition stated that law requires Plants to perform all duties of the job while he remains in office.

“Plants has agreed to disqualify himself from doing his full job as the prosecutor of Kanawha County by the apparent conflict created by his response to the criminal charges against him,” it stated. “Plants has repeatedly violated the orders of a court of the State of West Virginia.

“Plants has violated the Rules of Professional Conduct by publicly undermining the credibility, professionalism and independence of the Special Prosecutor, who was appointed because of Mr. Plants’s agreed disqualification.”

In March, Plants was charged with domestic battery for punishing his son with a belt and leaving a bruise on the boy’s thigh. He later was charged with violating a protective order after he approached his ex-wife’s car outside a Charleston pharmacy in which his sons were sitting alone. In June, Plants agreed to attend the batterer’s program in Putnam County.

So far, Kanawha County has had to pay two special prosecutors. Sid Bell is prosecuting misdemeanor domestic charges against Plants, and Don Morris is handling cases involving child abuse because Plants and his office are disqualified from doing so. Officials expect to spend about $300,000 more while Plants attends a 32-week Batterer’s Intervention and Prevention Program in Putnam County.

The petition detailed the timeline of events starting in late February when his ex-wife contacted the State Police complaining that Plants had injured their son.

“Removal of a public officer from office is a drastic remedy and the statutory provision regarding removal is given strict construction,” the petition stated.

The petition stated Plants has committed malfeasance and misconduct because his actions have “affected, interrupted and interfered with his official duty as prosecutor.”

It also noted that Plants has violated an Emergency Protective Order.

Bird, who works in the Huntington office of Nelson Mullins, is providing the work on the case for free through the firm’s pro bono program.