SEC votes to take Fouty's name off November ballot
Jessica M. Karmasek Aug. 15, 2012, 8:45am
CHARLESTON - The State Election Commission has granted a request to replace former Kanawha County Magistrate Carol Fouty on the November ballot.
That is, only after calling Fouty's own request -- not that of the Kanawha County Republican Executive Committee -- "insufficient" and "lacking in credibility."
Ahead of its emergency meeting Wednesday afternoon, the SEC received two separate but related requests to have Fouty's name removed from the Nov. 6 general election ballot.
Fouty, herself, submitted a request. The KCREC submitted its own.
The former magistrate, who resigned earlier this month ahead of disciplinary proceedings for her alleged unethical conduct, pointed to her health as the reason to have her name removed.
In a one-page letter sent to the state Supreme Court Aug. 3, Fouty said she decided to step down due to "ongoing health problems" and wanting to spend more time with her family.
"I have been employed as a magistrate for the past 26 years and have worked continuously for and in the best interest of the people of this county," she wrote Chief Justice Menis Ketchum.
"My resignation is effective immediately."
Meanwhile, the KCREC, in its request, pointed to an agreement Fouty has made with the state Judicial Hearing Board, which stipulates that she immediately resign and not serve as magistrate if elected in the fall.
Secretary of State Natalie Tennant, who serves as a member of the SEC, noted that Fouty has already withdrawn from the race with the Kanawha County Clerk's Office.
"It doesn't appear to me that the reason given by Carol Fouty is really sufficient," SEC member Gary Collias said Wednesday. "To be blunt about it, it doesn't seem to be the real reason.
"However, I feel the opposite about the reason given by the executive committee."
Collias pointed out that despite Fouty citing her health as a reason, she provided no details or documentation of her condition.
"She claims HIPPA (the Health Insurance Portability and Accountability Act) is preventing her from giving us her health reasons," he said.
"But we all know what happened here."
Tim Morris, who serves as chairman of the KCREC, also was present at Wednesday's meeting.
He said while he appreciates Fouty's service, he would prefer to have someone else's name on the ballot if possible.
"We are intent on putting someone qualified in that position," Morris told the SEC.
SEC Chairman Robert Rupp sided with Collias on Fouty's request.
"I find her reason totally insufficient and lacking in credibility," he said, adding that the executive committee should be allowed to replace her on the ballot.
After altering the agenda and separating the two requests, the SEC voted unanimously to allow the KCREC to replace Fouty on the ballot for the reasons it -- not Fouty -- provided.
The deadline for either a candidate or an executive committee to request replacements was Tuesday.
The committees now have until Aug. 20 to make their nominations.
If they meet and fail to nominate a replacement, they have until Aug. 22 to simply choose someone to serve as a replacement.
Earlier this week, the Judicial Hearing Board recommended that the state Supreme Court of Appeals "publicly censure" Fouty for violating the state Code of Judicial Conduct.
The board's nine-page order came days after it began reviewing a settlement agreement for her.
In its order Monday, the board recommended the following discipline for Fouty:
* She immediately resign her position as magistrate;
* She not take office as magistrate and not serve the following term of office if elected in the November general election; and
* She pay costs in the amount of $6,387.89 at the rate of $100 per month.
Judge Lawrance Miller Jr., who serves on the state's Eighteenth Judicial Circuit and is acting as a hearing examiner for the board, continued, "Based upon the Respondent's failure to appear at the hearing; the Respondent's failure to acknowledge personal responsibility; the Respondent's failure to express contrition; the Respondent's conduct which gave rise to these proceedings; and the Respondent's history of violating the Code of Judicial Conduct, the board concludes that the recommended discipline as per the stipulations would be inadequate to preserve and enhance public confidence in the honor, integrity, dignity and efficiency of the members of the judiciary and the system of justice, and therefore recommends additional discipline and investigation as follows."
In addition to publicly censuring Fouty, the board recommended that the Supreme Court have Kanawha County Prosecutor Mark Plants' office investigate whether any criminal laws may have been violated in how bail bonds were obtained and approved.
Because of the additional recommendations, both parties will be given 14 days after the order was entered to file any written objections.
The board's recommendations then will be taken up by the state's high court, which will make a final decision in the matter.
Court spokeswoman Jennifer Bundy said last week there is no timeframe for when that decision will be made.