WEST VIRGINIA RECORD

CHARLESTON – Three years after Charleston police prosecuted a Black officer for "double dipping" that he said they allowed for Whites, police claim an investigation of the scandal remains open.

By keeping it open, they might prove they did not discriminate against James Nowling Jr., who they fired and convicted.

By keeping it open, they also prevent Charleston Gazette reporter Andrew Clevenger from digging into anybody else's double dipping.

In July Clevenger asked for pay records of 28 officers from 2001 to 2003.

City attorney Paul Ellis denied the request, quoting a rule against release of information from an active investigation.

"…[P]remature disclosure of records that are the subject of an ongoing criminal investigation may compromise the investigation and the county prosecutor's ability to prosecute any wrongdoing that may be exposed by the investigation," Ellis wrote.

He wrote that release of the records would also violate court orders keeping boxes of records under seal.

Ellis wrote that Capitol City Fraternal Order of Police Lodge 74 put the city on notice that release of the records would violate officers' rights.

He offered to notify the officers so they could consult with counsel.

"To do otherwise will likely subject the CPD to litigation and potential liability," Ellis wrote.

He told Clevenger where to find pay records for one officer – Nowlings, the one the city fired.

Ellis offered to obtain copies from Nowling's trial.

Nowling, convicted of working for Charlestown Town Center Mall and WesBanco on city time, started three years of probation in July.

On Aug. 1, Clevenger asked Ellis to reconsider his denial.

"In this instance, the public has both a pecuniary interest in knowing how its money is spent paying police officers, and a very great interest in knowing whether there has been any improper double dipping," Clevenger wrote.

"…[T]he goal is to publish newspaper articles that would educate the public about any wrongdoing – if any exists – or to exonerate the officers from allegations of wrongdoing if that indeed is the case."

Clevenger answered the threat of Lodge 74 liability with a reminder that citizens who sue to obtain public records can seek payment of attorney fees from the agency that withheld the records.

He asserted a First Amendment right to conduct an investigation.

The city retained Scott Johnson and Bryan Cokely of Steptoe and Johnson in Charleston, and they filed a complaint against the Gazette Aug. 9.

"The case is unusual in that some of the documents sought by the Gazette, even if normally disclosable, are themselves evidence in an investigation being undertaken by the Charleston Police Department," Johnson wrote.

"The city does not wish to subject the city to liability from either the Gazette or the officers," he wrote.

He wrote that the city found itself between a rock and a hard place.

"The city clearly recognizes the substantial rights of the Gazette to report on matters of public concern," he wrote.

"The city also, though, recognizes that the officers whose records have been requested have substantial rights that are triggered by the Gazette's FOIA request…"

He wrote that the city also recognized an obligation "to conduct criminal investigations in a manner that allows the city to reach a conclusion unmarred by widespread publicity…"

The court assigned the case to Circuit Judge James Stucky. It struck him as a waste of time, and he dismissed it Aug. 22.

"…[T]he documents at issue are currently under seal by orders of both Judges Jennifer Bailey Walker and Tod Kaufman," Stucky wrote.

"Were this court to enter the requested declaratory judgment, the documents would still remain under seal, and thus, the underlying controversy of this matter would persist."

His order shook the police, for Walker and Kaufman had sealed records of only six officers among the 28 that Clevenger picked.

Suddenly the Gazette enjoyed a clear shot at pay records for 22 officers.

In 48 hours the city moved to set aside the order.

"Because 22 records sought by the Gazette are not covered by either Judge Kaufman's or Judge Walker's orders – yet contain the exact same type of information that Judges Walker and Kaufman found warranted protection from public disclosure – the city seeks a declaratory judgment…," Johnson wrote.

Stucky has not held a hearing on the motion.

Nowling continues to pursue a complaint of selective prosecution through the West Virginia Human Rights Commission.

Last year the commission found probable cause to believe that Charleston police discriminated in favor of White double dippers.

Jamie Alley of the commission's civil rights division said she has set Nowling's claim for adjudication in January.