CHARLESTON - The state Supreme Court recently decided not to hear a list of certified questions answered by Kanawha Circuit Court Judge James Stucky in the case of a member of the House of Delegates who was fired from his day job.

Delegate Brent Boggs, D-Braxton, filed suit in 2003 against Brotherhood of Locomotive Engineers and Trainmen, claiming he was wrongfully terminated in 2002 as a result of the time away from work he spent during Legislative sessions.

Jane Peak, one of the attorneys working under lead counsel Michael Bee of Hill, Peterson, Carper, Bee and Dietzler in Charleston, says the next step is ironing out a scheduling order that culminates in a jury trial.

"When you have an issue of law that is unsettled, that hasn't been decided by the state's highest court, then the circuit court makes a ruling and the parties request the issue be certified to the (Supreme) Court to rule on this legal issue," said Peak, of Allan Karlin and Associates in Morgantown.

"In this case, the defendants requested it and we agreed to issue the certified questions. It's not mandatory for (Supreme Court Justices) to hear them. It's up to them if they want to."

In this case, they didn't see a need to change Stucky's findings.

Stucky's answers to the certified questions indicated that Boggs' job status as a congressional lobbyist with the union should have been protected. Instead, he was demoted to a locomotive engineer with CSX.

The union says Boggs was taking both paid and unpaid vacation to attend Legislative sessions, even though he was only allowed to take unpaid, pursuant to state law.

It adds that the time he missed had an adverse effect on his ability to perform as a lobbyist, and he also disobeyed a direct order to not attend a Jay Rockefeller fundraiser in 2002.

"We've always felt like we're in the right on the questions of law," Peak said. "I was surprised that the employer would violate the law in this manner."

Boggs' switch to locomotive engineer shaved $20,000 off his annual salary. He is seeking back pay and benefits as well as compensation for emotional distress, embarrassment and mental anguish, as well as punitive damages.

On March 27, Stucky answered "yes" to questions asking: If Boggs is a public official protected from retaliation; if sessions of the state Legislature are official proceedings of a tribunal, defined by state law; if the Legislature is the type of part-time elected public office covered by state law; and if his termination was the type of penalty envisioned when the laws were made.

He answered "no" to a question asking if Boggs' claims were preempted by the federal Labor Management Reporting and Disclosure Act.

"In an issue like this, the questions of law are typically dealt with before trial," Peak said. "Once you're in trial, it becomes questions of fact for the jury's determination. It helps to have those issues sorted out going into trial."

James Wallington of Baptiste and Wilder in Washington, D.C., is representing the union.

Kanawha Circuit Court case number 03-C-1071

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