Charleston police must give payroll records to Gazette, Justices say

By Steve Korris | Dec 9, 2008

CHARLESTON – Charleston police must disclose payroll records of six officers to the Charleston Gazette, the state Supreme Court of Appeals decided on Dec. 9.

Gazette reporter Andrew Clevenger requested the records last year to investigate charges that the officers "double dipped" by working for taxpayers and private security companies at the same time.

The Justices held that releasing the records would not substantially invade the privacy of the officers.

"We also recognize that the Gazette seeks this information for a valuable public interest and that the information would not otherwise be available from other sources," they wrote in an unsigned opinion.

They quoted a Connecticut Supreme Court decision that, "The public has a right to know not only who their public employees are, but also when their public employees are and are not performing their duties."

They reversed Kanawha Circuit Judge James Stucky, who treated the records as confidential.

Stucky now must enter an order requiring the city to disclose the records.

The double dipping scandal broke in 2004 when a grand jury indicted officer James Nowling Jr.

Nowling moved to dismiss the indictment, claiming the police department singled him out for prosecution when other officers had engaged in the same practice.

He also filed a complaint at the West Virginia Human Rights Commission, claiming the department treated him differently because he was black and the other officers were white.

The commission found probable cause for his complaint. Commission Director Ivin Lee said the panel had completed its work on the case and sent it to Assistant Attorney General Paul Sheridan, who represents Nowling.

At the courthouse, however, Circuit Judge Jennifer Bailey Walker ruled in 2005 that, "Whether other persons committed similar offenses is not relevant to whether Defendant committed them."

"Defendant has not offered any evidence supporting a selective prosecution theory," Walker wrote.

When city attorney Paul Ellis refused to disclose the records last year, he argued that they related to an ongoing criminal investigation. This May, a grand jury indicted Officer Keith Peoples on similar charges. Stucky has set his trial for March.

In April 2007, Nowling was found guilty of obtaining money by false pretenses and of computer fraud. Walker placed him on probation for three years.

Earlier this year, Nowling petitioned to appeal his conviction, but the state Supreme Court in September denied that motion.

Reporter Clevenger asked for payroll records of the other officers in July 2007.

City attorney Paul Ellis filed a complaint seeking declaratory judgment that would resolve the issue one way or another.

Stucky, however, decided not to decide. He ruled that he couldn't unseal the records because Walker had sealed them in connection with Nowling's human rights case.

"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," he wrote.

He dismissed the case "sua sponte," on his own, without receiving a motion or holding a hearing.

The Gazette appealed, and the Supreme Court held that Stucky violated due process on both sides.

The Justices wrote that letting Stucky decide the case would cause delay and would likely result in the case returning to the Supreme Court under the same set of facts.

Rudolph DiTrapano and Sean McGinley, of DiTrapano Barrett and DiPiero in Charleston, represented the Gazette.

Ancil Ramey, Bryan Cokeley and Hannah Curry, of Steptoe and Johnson in Charleston, represented the city.

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