You are the owner of this article.

Statehouse Beat: Should the clock have run out on a judicial complaint?

In doing research for a future article, I came across a state Supreme Court decision from this summer regarding a legal challenge after the state Public Employees Grievance Board upheld the firing of a deputy medical examiner.

Justices concluded that the grievance board, and Kanawha Circuit Court, had acted properly in upholding the firing of Dr. Hamada Mahmoud for a “long and well documented history of poor job performance” that had resulted in a backlog of autopsy reports that, at one point, totaled more than 200 cases.

The memorandum opinion was concurred in by four justices, while the fifth, Justice Margaret Workman, was disqualified from the case. That has been the case with all appeals of decisions by the Public Employees Grievance Board, since at the time, Workman owned the East End house where the board was headquartered.

As has been reported here and in other publications, the Grievance Board moved its offices from the house that Workman owned at 1596 Kanawha Blvd. E. to the Schoenbaum Center on the West Side at the end of June. It gave the board a larger, disability compliant facility with on-site parking and utilities and janitorial services provided for nearly $30,000 a year less than they were paying for the East End location.

From a strictly business standpoint, it was a shrewd deal for Workman, who paid $612,000 for the house in 2003, collected approximately $880,000 in rent from the state from July 2009 through June 2019, and then sold the house to the West Virginia Children’s Home Society in July for $530,000.

Which allows me to segue to the main point of this column item.

Steve Canterbury, who is enjoying the retired life after being unceremoniously fired as Supreme Court administrator in 2017 by one now known as Inmate 15022-088, filed a complaint against Workman with the Judicial Investigation Commission this summer.

In his complaint, Canterbury cited news articles published in April and May about the Grievance Board’s decision to move to less expensive office space, and raised two issues regarding Workman’s lease with the board, including the potential costs of bringing in senior status judges to hear Grievance Board appeals in Workman’s absence.

“More importantly,” he wrote, “her financial arrangement is in clear violation of the Code of Judicial Conduct, Rule 3.12 (C) (2): ‘A judge shall not engage in financial activities permitted under paragraphs (A) and (B) if they will lead to frequent disqualification of the judge.’”

The JIC considered the complaint, and in June, voted to ask Workman for a response.

However, Canterbury recently received a letter from JIC Chairman Alan Moats, a circuit judge based in Grafton, indicating that his complaint was dismissed — not on its merits, but because the statute of limitations had expired.

“The evidence indicates that Justice Workman first rented her former law office to the Grievance Board from July 2009 through June 30, 2019,” Moats wrote. “The first Grievance Board case that Justice Workman recused herself from was Nov. 12, 2009. Justice Workman’s notice of disqualification and subsequent recusal orders were and are on file at the Supreme Court Clerk’s Office and are a matter of public record.”

Moats went on to point out that rules of Judicial Disciplinary Procedure set a two-year statute of limitations from the time that “the complainant knew, or in the exercise of reasonable diligence should have known, of the existence of a violation of the Code of Judicial Conduct.”

Of course, that presumes that Canterbury should have been aware that Workman was recusing herself from Grievance Board cases as early as 2009, as well as the reason why, nearly ten years before any news coverage of the board’s relocation from the Kanawha Boulevard location.

(In his complaint, Canterbury cited a May 1, 2019 article in the West Virginia Record, headlined, “State Has Paid Workman Nearly $750,000 to Lease PEGB Offices.”)

I did have a little column item in June 2009 about the Grievance Board moving to the Workman house, but I am personally unaware of any other media coverage of the lease at that time.

Interesting to ponder what might have come of things had the JIC started the clock in Spring 2019 rather than Fall 2009.

•••

With the release of “Dark Waters,” the motion picture account of how attorney Rob Bilott spent nearly two decades pursuing a class-action lawsuit against DuPont for dumping toxic chemicals into a creek outside of Parkersburg (a lawsuit ultimately settled for $671 million), one would hope our legislators would use it as an opportunity. It should be a call to review state and federal environmental protection laws and regulations to assure that large numbers of West Virginians are never again exposed to cancer-causing toxic waste.

Naturally, though, House Majority Leader Amy Summers, R-Taylor, and 15 delegates issued a letter on House letterhead denouncing the film, not for its expose of corporate greed, but for its purported stereotypical depiction of West Virginians.

“We are especially offended that ‘Dark Waters’ portrays West Virginians as literally toothless hillbillies,” Summers and company wrote.

Since the film was in limited release in New York and Los Angeles when the letter was posted, we can presume the legislators’ righteous indignation stems from watching the trailer for “Dark Waters,” and not from viewing the film itself.

The letter references a “disturbing shot” from the trailer, depicting a girl on a bicycle with “blackened, rotting teeth.”

Now, my bosses at the Gazette-Mail have not provided me with the highest-resolution computer screen on the market, but having watched the scene multiple times, I see no evidence that the girl in question has rotting teeth. In fact, she appears to have braces.

(It’s a powerful scene in which Bilott, played by the great Mark Ruffalo, makes the awful realization that whatever is killing his client’s cattle may also be contaminating the city’s water supply.)

The letter seems like a good old Republican deflect-and-distract tactic: Rather than honestly address the issues the film raises, attack it as another attempt by Hollywood elites to smear West Virginians.

It’s notable the letter was released, not in the usual manner through Legislative Services, but by the dark money 1863 PAC.

As you may recall, the 1863 PAC came on the scene in 2018 with an unprecedented media campaign urging House Republicans to elect Delegate Roger Hanshaw, R-Clay, as House Speaker. In the general election, the group bought ads and sent out campaign fliers supporting several Republican House candidates and opposing their Democratic challengers.

Although highly secretive, we know from IRS disclosures that it’s largely funded by coal and natural gas interests, with Bob Murray, Gov. Jim Justice and Bray Cary being the largest individual donors.

Given that both industries have a tendency to muck up the environment, it makes perfect sense why they’d want their mouthpieces in the House to denounce this film.

•••

Finally, we learned last week that West Virginia Chamber of Commerce President Steve Roberts thought “deep state” was a generic term referring to career Washington bureaucrats, and not the more sinister connotation of a shadow government that defies the wishes of duly elected federal government officials, up to and including the president.

At an otherwise superfluous press conference held by Justice, Roberts tried to explain whey there is a nearly 30,000-job discrepancy between employment figures compiled by WorkForce West Virginia and by the U.S. Bureau of Labor Statistics.

Regarding the lower employment figure cited by the bureau, Roberts seemed to disparage the federal agency, stating, “I’m not really one to call names or point fingers, but some would say, certainly, the civil service that some refer to as the ‘deep state’ in Washington are the ones responsible for those numbers.”

Which sounds like a conspiracy theory that federal bureaucrats are cooking the employment books to make West Virginia, and Justice, look bad, much the way conspiracy theorists believe there’s a deep state trying to undermine the Trump presidency. (Not that he needs the help.)

Asked for clarification, Roberts said he wasn’t aware that deep state had a nefarious meaning, and that he thought it was inside-the-Beltway lingo to refer to any career government bureaucrat.

He also went on to say that he wasn’t disputing the federal numbers, which counts payroll, and the WorkForce numbers, which he said counts farm work, self-employed entrepreneurs and gig-economy workers who wouldn’t necessarily show up in the BLS figures. (In other words, if you have a full-time day job, and drive an Uber at night, BLS would count you as one employed person; WorkForce would count you as two.)

Without getting into the weeds on the apples and oranges of the numbers, I think we can all agree there are not 19,000 new jobs in West Virginia, a fact borne out by flat personal income tax collections so far in 2019-20.

It is also reasonable to say to the extent there is job growth, it is concentrated in the Eastern Panhandle and the north central region, and is primarily a factor of geography, and not that corporate tax cuts and anti-labor laws that have for years been ineffective in bolstering economic development have suddenly blossomed.

What was most peculiar about the Justice presser was the timing. The WorkForce West Virginia figures weren’t hot off the press — the Chamber had released them weeks ago.

The press conference — the first Justice has held at the Capitol in three months — felt more like a re-election campaign preview, and it was likely no coincidence that the Justice campaign launched its first campaign ad a day later.

The theme of the press conference, that Justice is the band leader who makes state economic development happen, seems particularly shaky ground to run on, given the likelihood that natural gas prices aren’t going to recover in the short term, and that coal is never going to recover.

Reach Phil Kabler at

philk@wvgazettemail.com,

304-348-1220 or follow

@PhilKabler on Twitter.

Funerals for Saturday, December 7, 2019

Blackshire, Judith - 11 a.m., Sunset Memorial Park, Charleston.

Breckenridge, Robert - 2 p.m., Emmanuel Tabernacle Baptist Church, Page Hill.

Butler, Larry - Noon, Stump Funeral Home & Cremation Inc., Grantsville.

Byers, David - 6 p.m., Chapman Funeral Home, Hurricane.

Cincinnati, Freda -11:30 a.m., Immaculate Conception Catholic Church, Montgomery.

Colby III, Ronald - 11 a.m., Alban Arts Center, St. Albans.

Fetty, Julia - 2:30 p.m., Waybright Funeral Home, Ripley.

Findley, Reva - 3 p.m., Chapman Funeral Home, Hurricane,

Fletcher, Christopher - Noon, First Baptist Church, St. Albans.

Griffith, Martha - 1 p.m., Forks of Coal Baptist Church Cemetery, Alum Creek.

Harris, Mark - Noon, Simpson Memorial United Methodist Church, Charleston.

Harris, Roy - 1 p.m., Taylor-Vandale Funeral Home, Spencer.

Hinkle, Virginia - 5 p.m., Cooke Funeral Home Chapel, Cedar Grove.

Holland, William - 4 p.m., Dunbar First Church of God, Dunbar.

James, Susan - 1 p.m., Waybright Funeral Home, Ripley.

Lokant, Raymond - 1 p.m., Tyree Funeral Home Chapel, Oak Hill.

Moores, Patricia - 11:30 a.m., Pineview Cemetery, Orgas.

Morrison, William - Noon, Stockert-Paletti Funeral Home, Flatwoods.

Porterfield, Keven - 3 p.m., Old Faith Community Church, Sissonville.

Settle, Donald - 7 p.m., Keller Funeral Home, Dunbar.

Starcher, James - 1 p.m., Roach Funeral Home, Gassaway.

Stevens, Olyn - 1 p.m., Elk Funeral Home, Charleston.

Summers, Rosalie - 11 a.m., St. George Orthodox Cathedral, Charleston.

Taylor, Edward - 10 a.m., Sacred Heart Catholic Church, Charleston.

Vance, Brian - 10 a.m., Grace Covenant Presbyterian Church, Charleston.