CHARLESTON – City leaders, facing a lawsuit either from their police union or the Charleston Gazette in a struggle for evidence that officers "doubled dipped" as private guards, would rather let someone else decide which powerful force to offend.

The city has asked the West Virginia Supreme Court of Appeals to reopen a Kanawha County circuit court petition seeking a declaration one way or the other.

The Gazette has requested payroll records of 28 officers, but the Fraternal Order of Police has warned that it will sue to protect the privacy of its members.

Circuit Judge James Stucky dismissed the city's petition in September, finding that circuit judges Tod Kaufman and Jennifer Bailey-Walker already sealed the records.

Their orders covered only six of the officers in the Gazette request, however, and city leaders didn't care to interpret the orders in regard to the other 22.

The city petitioned for appeal Sept. 27. Scott Johnson of Steptoe and Johnson wrote that the city found itself between the proverbial rock and a hard place.

"First, some of the documents sought by the Gazette directly pertain to an ongoing criminal investigation being undertaken by the Charleston Police Department," he wrote.

The investigation started in 2004 and resulted in one prosecution. Until the Gazette asked for records, police had never stated that the investigation continues.

Johnson's petition asked for an order directing Stucky to review the case on the merits.

Johnson wrote that Stucky dismissed the case "without awaiting an answer from the Gazette or allowing for any argument by the city prior to the dismissal."

"... due process requires notice and an opportunity to be heard before a case is dismissed," he wrote, adding that the city set forth facts that a controversy existed "and that a declaration of the rights of the parties would settle the underlying controversy."

He wrote that if the police union sues, the city will have to pay legal fees for defense. He said if the Gazette sues, the city might have to pay the newspaper's legal bill in addition to its own.

"It is ultimately the city's taxpayers who will bear the cost of any litigation, including any sanctions against the city for having guessed wrong," Johnson wrote.

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