Suspended Wayne magistrate given disability retirement

Tommy Toler

CHARLESTON – Suspended Wayne County Magistrate Tommy Toler has been granted disability retirement benefits by the state Consolidated Public Retirement Board.

Toler officially resigned last month, according to state Supreme Court administrator Steve Canterbury.

Toler unanimously was suspended by the state Supreme Court last year for violating judicial ethics after he was accused of inappropriate sexual contact with four women while performing his official duties as magistrate at the Wayne County Courthouse.

In his request for disability retirement, Toler blames a deterioration of his health as the reason.

"I have diabetes and (a) thyroid tumor," he wrote. "Rupture in my stomach, numbness in both arms and shoulders … arthritis all over by body. Very serious emotional and stress problem. Also high blood pressure, cholesterol and triglycerides."

Letters from physicians support Toler's statement.

"Major depression, history of chronic arthritis, carpal tunnel, diabetes," Beckley physician Ahmed D. Faheem listed as Toler's reasons for disability retirement.

"He has severe mood disorder … intolerance inability to perform or function cognitively or physically," South Charleston physician Hussein E. El-Khatib wrote.

Toler "has a history of osteoarthritis, hypertension, diabetes mellitus and hyperlipidemia," wrote Huntington physician William B. Dennison. "The patient is unable to work because of chronic pains in the lower back and posterior hips, which are coming from a degenerative process, which is not likely to improve. The patient also has problems with carpal tunnel syndrome and an entrapment neuropathy of the ulnar nerves bilaterally. The patient is unable to use his hands to work, is unable to sit for any prolonged periods of time, or stand. He is unable to work and this is expected to be permanent and total."

Bruce S. Chertow, Toler's physician at University Physicians in Internal Medicine in Huntington, wrote in a letter that Toler has had diabetes mellitus type 2 since 1997.

"This is a chronic disease," Chertow, also chief of endocrinology of Marshall University's School of Medicine, wrote. "His blood sugars have remained elevated over time and may lead to complications involving the heart or retinopathy or nephropathy. His blood sugar is currently not controlled although we continue to make an effort at controlling it. …

"The patient also has hypertension, which is not well controlled. … The patient also has dyslipemia or hyperlipemia. This is in part related to his diabetes and obesity. …

"Patient also has a toxic multinodular goiter. Previously he had surgery with removal of part of his lobe; however, the remaining lobe re-grew and has not yet caused him to be hyperthyroid. However, as the gland continues to get bigger he may develop hyperthyroidism so this needs constant monitoring.

"In conclusion, this patient does suffer from chronic illnesses, which will require continuous effort to reduce risk factors and prevent complications. He also suffers from chronic thyroid disease, which will require surveillance for development of overactivitity. …

"At this time the chronic diseases are not disabling. It appears that he should be able to engage in gainful employment. However, if the nature of this disease evolves and worsens I suspect he may be able to partake in employment more or less."

Under his options for disability retirement, Toler will gross $1,308 per month.

In December, Toler was censured and suspended, retroactive to July, for four years by the Supreme Court. He was acquitted of sexual abuse and bribery charge in February 2005. He had been accused of demanding sexual favors from women whose cases were before him.

Despite the charges that were against him at the time, Toler was re-elected in November 2004 to another four-year term.

The Supreme Court did grant Toler nearly a year of back pay, but they ordered him to pay $20,000 in fines and an additional undetermined amount for the cost of the proceedings.

Last July, the four women testified before the state Judicial Hearing Board.

The first woman, a Wayne County corrections officer, said that while she and Toler were alone in the magistrate's office, Toler put his hand and his finger on her breasts before asking if he could "go downtown on her." The woman took that as a solicitation for oral sex.

A second woman testified that Toler told her, while she and her husband were going through divorce proceedings, that he would help her get a lawyer and make sure her husband paid dearly. Then, the witness said, Toler grabbed her blouse and pulled it along with her bra, exposing her breasts. She said Toler also grabbed her between her legs and told her he wanted to have sex with her.

All of this occurred, the woman testified, minutes after Toler had awarded the couple's home to the husband and gave the woman four hours to remove her belongings.

A third woman testified that while she was discussing a case with Toler, he grabbed her breasts with both hands before she told him to stop. The woman said Toler then laughed before he tried that again. She then left his office.

A fourth woman said she went to Toler to fill out a domestic violence petition after a fight with her boyfriend. She said Toler asked her if she liked sex and if she was any good at performing oral sex. When the woman left the office, Toler followed her onto the elevator and kissed her on the mouth. He then grabbed her hands and told her he wanted to show her something. Then, the woman said, Toler forced her hands between his legs, held her hands to his crotch and asked if she liked his penis. She then pulled away and left the building.

On July 7, 2004, a Wayne County grand jury indicted Toler on eight felony counts of sexual abuse, a count of demanding a bribe and a misdemeanor count of indecent exposure.

Toler has denied the allegations.

Toler's situation is similar to that of former Kanawha Circuit Court Judge John Hey.

In 1994, Hey applied for a medical disability retirement, citing reports from doctors that he has chronic alcoholism, cirrhosis, alcoholic hepatitis, gout or arthritis, and hypertension.

He did so in the midst of an investigation by the Judicial Investigation Commission into charges that he sexually harassed several women who work in the courthouse, as well as one woman who had a case before him.

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