Court won't hear former Tax Department official's libel suit

CHARLESTON – The state Supreme Court has let stand a lower court's decision dismissing a former Tax Department official's libel suit against a statewide news organization.

The Court on Feb. 11 voted unanimously not to hear Lexie Redden's appeal from Greenbrier Circuit Court dismissing his libel, and invasion of privacy suit against West Virginia Media Holdings. In its memorandum opinion, the Court, after reviewing the case, and considering each side's legal briefs, said it agreed with the judge's ruling that Redden, a former Tax Department compliance officer, wasn't defamed by a series of investigative reports WVMH broadcasted or published regarding allegations raised in a 2005 lawsuit he sexually harassed his former secretary.

"Mr. Redden failed to allege in either his Complaint or in his response to WV Media's motion to dismiss that any of the content of the investigative reports was either untrue or false, or that they were published with a bad intent or for unjustifiable ends," the Court said.

Memorandum opinions are issued by the Court explaining its decision not to give an appeal further consideration. The Court began issuing them on Dec. 1 following adoption of its Revised Rules for Appellate Procedure.

Harassment on and off the job

According to court records, Redden, 66, of Charmco, was named as a co-defendant in seven-count civil suit filed by June Harper on Nov. 3, 2005. In her suit, Harper, 57, of Kenna, alleged between July 16, 2002, and June 15, 2004 while working for Redden, he made "crude and lurid comments of a sexual nature that were neither allowed, invited or wanted."

After she transferred to a different supervisor, Harper alleged Redden made "inappropriate contact of a sexual nature" with her while they, and other Tax Department employees, were at a training conference in Flatwoods in June 2004. Specifically, she alleged one evening while at a place called Pete's Bait Shop, Redden rubbed his hand under her blouse, and made her sit on his lap.

Upon returning to Charleston, Harper filed a complaint against Redden with the state Equal Employment Opportunity Office. She alleged that following an investigation, EEO substantiated her allegations.

However, despite assurances from higher-ups in the Tax Department disciplinary action would be taken against Redden, she alleges they never did. She averred that Redden was promoted to director of the Department's criminal investigation division.

In her suit, Harper named both the Tax Department, and then-Acting Commissioner Virgil Helton as co-defendants, and made claims of invasion of privacy, battery, sexual harassment and discrimination, intentional infliction of emotional distress, negligence and two counts of negligent infliction of emotion distress. She was represented by Charleston attorneys Trent Redman, and James Payne.

In the spotlight

Harper's lawsuit was the centerpiece for a three-part "I-Team" investigative piece Martin Staunton did for WOWK-TV13, WVMH's station in Charleston and Huntington, titled "Crossing the Line." Staunton's piece questioned whether allegations of sexual harassment are taken less seriously in state government than in the private sector.

In his piece, Staunton not only recounted much of what Harper alleged in her suit, but also talked with her, Dee Truman -- who investigated Harper's allegations -- and Helton. Though he was prohibited for commenting on the Harper's allegations at length, Helton was quoted as saying, following EEO's investigation, he followed the recommendations of the state Division of Personnel by suspending Redden for 15 days.

Redden declined to be interviewed for Staunton's piece. However, in answering Harper's suit in March 2006, he called her allegations "false, scandalous, illegal, defamatory and are a malicious slander and libel."

He added they were part of a "smear campaign" against him conducted with "certain media persons." Along with his answer, he filed a counterclaim against Harper seeking $1.5 million in damages.

After nearly three years of litigation, Harper's suit went to trial. Records show on Aug. 22, 2008, a jury found she did not prove her case, and cleared Redden, the Tax Department and Helton of any negligence. Four months later, then-Kanawha Circuit Judge Irene C. Berger denied Harper's motion for a new trial.

From defense to offense

A year after the jury found in his favor, Redden filed his libel and invasion of privacy suit against WVMH. Staunton was named as a co-defendant.

In his suit, Redden alleged WVMH rebuffed his repeated requests to have the "Crossing the Line" piece removed from not only WOWK's, but also the Web sites of WVMH's stations in Wheeling, WTRF-TV 7, Clarksburg, WBOY-TV 12, Beckley, WVNS-TV 59 and its weekly business publication in Charleston, The State Journal. After the three-part piece, Redden alleged the only follow-up Staunton did was "a brief, six-sentence report of [his] trial" on WOWK's Web site following the jury's verdict.

Despite the verdict, Redden alleged "anyone searching for information about [him] would be left with the impression that allegations against [him] are true." WVMH keeping the "Crossing the Line" piece on its associated Web sites, Redden alleged, not only cast him in a false light by "portraying him as having committed sexual harassment," but also caused him to suffer "shame, mortification and loss of reputation."

He was represented by Lewisburg attorney J. Steven Hunter, who also helped with his counter claim against Harper.

However, nine months later, Redden's suit was dismissed. In his May 17, 2009 ruling, Greenbrier Circuit Judge Joseph C. Pomponio Jr. said Redden not only missed the statute of limitations in a libel action by almost three years, but he could not prove anything in Staunton's three-part serious was anyway false.

"There are two reasons why this cause of action cannot withstand scrutiny under West Virginia Rules of Civil Procedure 12(b)(6)," Pomponio said.

"First, the case was filed outside of the one year statute of limitations imposed on actions of libel. Second, there is no set of facts that the Plaintiff could prove to substantiate his Complaint because the Complaint fails to allege that any of the content of the investigations are untrue or false."

Rest of the story

According to the state Board of Risk and Insurance Management, $337,434.49 was paid in legal expenses to defend Redden and the Tax Department in the suit. The Charleston law firm of Bowles, Rice, McDavid, Graff and Love received the lion's share of the expenses, $235,676.77, with another $101,757.72 paid to the state Attorney General's Office.

Records show Erica Mani, and Mark Dellinger represented Redden, and Barbara Allen and Katherine Shultz with the Attorney General's Office, represented the Tax Department and Helton in the case.

Currently, Mani is executive director of the state Public Employees Retirement Board and deputy chief of staff to acting Gov. Earl Ray Tomblin. Ten months before Harper's sexual harassment suit concluded, she was appointed by Gov. Joe Manchin as deputy cabinet secretary and general counsel for the Department of Tax and Revenue.

After officially being appointed Tax commissioner in 2006, Helton was elevated to Tax and Revenue secretary in late 2007. Last year, he left the Department, and returned to the private sector.

Shortly after Harper's suit was filed, Redden retired from state government. His final salary, according to the state Auditor's Office, was $51,504.

Harper is still employed with the Tax Department as a secretary.

Around the time Harper's case was coming to a close, Staunton became the anchor at WVNS. He worked at WOWK for six years after coming over from WCHS-TV8/WVAH FOX 11.

West Virginia Supreme Court of Appeals case number 101209 and Greenbrier Circuit Court case number 09-C-201