CHARLESTON – Circuit Judge Carrie Webster granted a petition for a writ of mandamus and partially granted a petition for injunctive relief in a lawsuit filed by Chief Administrative Law Judge Rebecca A. Roush.
Webster said the Industrial Commission meeting on March 8 in which they will discuss Roush’s suspension will be a public hearing, as opposed to behind closed doors as the resolution drafted by Jay Arcenaux, attorney for the council, had stated.
Webster also partially granted injunctive relief to Roush, stating that she should be suspended with pay instead of without.
Richard Neely, Roush’s attorney, said he was pleased with half of the ruling.
“This is a very serious matter, and it affects the rights of injured workers,” Neely said. “We’re going to go next week, and we’re going to win this.”
Roush was appointed as an ALJ by former Gov. Earl Ray Tomblin, and reappointed by current Gov. Jim Justice last year to a four-year term.
According to her petition, Roush says she was asked to appear in the Office of the Insurance Commissioner Allen McVey on Dec. 22 and was told she didn’t need to bring counsel. Roush and the other judges of the Office of Judges are housed in the offices of the Insurance Commissioner.
Roush did bring attorney Neely to that Dec. 22 meeting, in which she was told she was “suspended without pay” and urged to resign.
“The Chief ALJ can be removed from office only by a vote of four out of five members of the Industrial Commission,” the petition states. “The earliest regular meeting of the Industrial Commission after Judge Roush’s illegal suspension was scheduled” for Jan. 18.
However, Neely couldn’t make that meeting because he was stuck at the airport in Charlotte. Also, the petition states the council did not have a procedure in place to handle this personnel matter.
“The council has refused petitioner an open hearing and intends to determine whether ‘cause’ exists for petitioner’s removal in a closed hearing with no court reporter and no press,” Roush’s petition states, adding that McVey has urged the council, which has accepted that the hearing be closed. “This is a flagrant violation of the West Virginia Open Meetings Act.”
Roush’ petition also says McVey doesn’t have authority to suspend Roush with or without pay. The council also has requested a formal opinion from the state Ethics Commission regarding Roush’s right to an open meeting.
According to court documents, two employees of the Office of Judges filed grievances against Roush relating to “debatable personnel matters,” and McVey says those grievances were resolved in favor of Roush. It also mentions an electronic message sent via Facebook to one of the grievants. Roush “adamantly denies” sending it. Roush also asked the State Police to look into the origin of the fraudulent message.
Roush seeks back pay, attorney fees of at least $17,760, court costs of at least $2,000 and other relief.
Kanawha Circuit Court case number 18-C-184
