County petition says Plants 'must be removed' from office

By Chris Dickerson | Aug 13, 2014

CHARLESTON – The petition to have Kanawha County Prosecuting Attorney Mark Plants removed from office paints a clear picture of the county’s case against him.

CHARLESTON – The petition to have Kanawha County Prosecuting Attorney Mark Plants removed from office paints a clear picture of the county’s case against him.

A draft copy of the petition, which is to be presented officially to the Kanawha County Commission on Aug. 14, says “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 draft petition states. It goes on to say Plants “has repeatedly engaged in wrongful conduct that betrays this higher standard.”

In the petition, the commission says Plants’ removal is necessary.

“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,” the draft states. “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.”

Kanawha County Commission President Kent Carper said he is happy with the draft petition, which was written by Huntington attorney Melissa Foster Bird with the firm of Nelson Mullins.

“More than pleased,” he said Wednesday. “We are proud that she’s representing the people of Kanawha County.

“Due process is for everyone to have their day in court, including the taxpayers of Kanawha County.”

The draft petition says 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 states. "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 draft petition details 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 draft states.

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

It also notes Plants has violated an Emergency Protective Order.

Bird and Nelson Mullins is providing the work on the case for free through the firm’s pro bono program.

“Once you put all of the documents together from all of the various courts and all of the various matters going on, the charges are supported by the documents and the law,” Bird said Wednesday. “It all came together in a picture that supports, without question, filing the petition to have him removed.”

Pending the approval of the Kanawha County Commission, the petition could be filed as early as Friday.

“After that, I think it will be a fairly quick process,” Bird said of the legal road ahead.

After the petition is filed in Kanawha County, it will go to the state Supreme Court. The chief justice will set a three-judge panel to hear the case. Then, that panel will collect evidence. There might be a hearing as part of that process. Then, the panel will decide if Plants stays in office or is removed.

“The way I read the law, there is no in between,” Bird said. “He either stays, or he goes.”

Bird has noted that Nelson Mullins, which is based in South Carolina, has a long history of pro bono work.

“In this case, we are representing the Kanawha County Commission, but we also are representing the citizens of Kanawha County and West Virginia,” Bird said. “The county already has spent nearly $100,000 because of this situation. And they’ll be spending more. We think this is a time when our pro bono work can be beneficial to thousands of people. The people of Kanawha County and the people of West Virginia have an interest in this matter.”

“The firm has a commitment to public interest work and requires all lawyers to handle pro bono matters,” said Marc Williams, managing partner of Nelson Mullins’ Huntington office. “We thought it made sense in light of the issues in the case, and the money the county had already spent in dealing with Plants disqualification,  to handle it pro bono.”

Two weeks ago, the Kanawha County Commission unanimously voted to draft the petition, citing “irreparable financial harm” to the county if Plants were to stay in office. County attorneys asked to seek outside counsel in the matter.

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