Saturday, June 28, 2008
WV State Supreme Court Rules In Favor Of Mingo County Sheriff.
The West Virginia Supreme Court of Appeals reversed the Mingo County Circuit Court’s Jan. 30 order to reinstate Sgt. Glen Messer as a Mingo County deputy sheriff and remanded the case back to the Circuit Court with directions this week.“In so holding, this Court recognizes that the indefinite suspension of Sergeant Messer, thus reinstated, may constitute a de facto termination of his employment,” the court ruled.Sheriff Lonnie Hannah appealed the final order of the circuit court upholding the decision of the Mingo County Civil Service Commission for reinstating Messer to his former rank and position in the sheriff’s office with full back pay and with no charges placed upon his record. The Commission also awarded Messer reasonable attorney feesThe matter arose from Messer’s indefinite suspension in May 2006 for allegedly submitting false requests for overtime pay concerning his participation in specialized training at the State Police Academy in Kanawha County from April 10-13, 2006. Messer’s requests for overtime pay included sixteen hours in travel time for trips between Mingo County and the academy.
The Civil Service Commission and the Circuit Court determined that at least four hours of the requested travel time were questionable because Messer, unknown to Hannah, had rented a motel room near the academy for the three day period. Nevertheless, the Commission and the Circuit Court concluded that the transgression was trivial, inconsequential and without wrongful intention on the part of Messer.The Court stated in its ruling that the Civil Service Commission “failed to consider an important aspect of the problem.”“In this case, the decision of the Commission failed to mention the evidence of record concerning the Mingo County Prosecuting Attorney’s involvement during the investigation into Sergeant Messer’s requested travel time and his conclusion that Sergeant Messer’s integrity and credibility as a law enforcement officer has been irreparably compromised. Moreover, although acknowledging the Prosecuting Attorney’s involvement and conclusion, the Circuit Court failed to address those matters in its order affirming Sergeant Messer’s reinstatement,” the court ruled. While Messer requested 16 hours in overtime pay, MCSD’s Charlie Justice, who also attended the academy, requested only 12 hours. Although a check payable to Messer for the overtime was issued, Hannah withheld it after discovering the discrepancy.Justice told the sheriff he only requested 12 hours for travel time because on April 12, he and Messer stayed at a Motel 6 near the academy. Justice later testified before the Civil Service Commission that he and Messer were in a training session at the Academy until 10 p.m. that evening. In his request for overtime, however, Messer indicated that, on April 12, he began driving back to Mingo County at 9 p.m. He also indicated that he drove back to the Academy the following morning.In May of 2006, Hannah requested a State Police investigation, and Trooper Mike LaFauci was assigned to the case. Soon after, LaFauci spoke with Hannah and with Prosecuting Attorney Michael Sparks. At Spark’s direction, LaFauci obtained the guest record from Motel 6 which revealed that Messer rented the motel room for the entire April 10 - April 13 period.Trooper LaFauci also spoke with Messer, who admitted renting the room and stated that he “had stayed at the hotel some and that he had driven home a few times.”In addition, Messer indicated to LaFauci that he paid for the room himself and thought, at the time, that requesting the overtime would be less expensive for the county than requesting reimbursement for the motel stay.By letter dated May 12, 2006 Hannah placed Messer upon indefinite suspension without pay.Concluding that the evidence was sufficient to charge Messer with attempting to obtain money by false pretenses, Sparks directed LaFauci to prepare a grand jury report and, perceiving a conflict concerning his representation of county officials, sought the appointment of a special prosecutor.Although the record does not show that the matter of Messer’s overtime was ever presented to a grand jury or that a special prosecutor was appointed, Sparks, in a letter to Hannah dated July 7, 2006, indicated that Messer had violated the provisions of W. Va. Code 61-3-24 by obtaining money under false pretenses and W. Va. Code 61-11-8, which concerns the attempts.The letter further stated, “Sergeant Messer’s integrity and credibility as a law enforcement officer has been irreparably compromised. Therefore, I hereby advise you that I will not prosecute any case in which MCSD Sergeant Messer is the primary investigating officer. To do so would be inconsistent with the public interest in the fair administration of justice.”
The Civil Service Commission and the Circuit Court determined that at least four hours of the requested travel time were questionable because Messer, unknown to Hannah, had rented a motel room near the academy for the three day period. Nevertheless, the Commission and the Circuit Court concluded that the transgression was trivial, inconsequential and without wrongful intention on the part of Messer.The Court stated in its ruling that the Civil Service Commission “failed to consider an important aspect of the problem.”“In this case, the decision of the Commission failed to mention the evidence of record concerning the Mingo County Prosecuting Attorney’s involvement during the investigation into Sergeant Messer’s requested travel time and his conclusion that Sergeant Messer’s integrity and credibility as a law enforcement officer has been irreparably compromised. Moreover, although acknowledging the Prosecuting Attorney’s involvement and conclusion, the Circuit Court failed to address those matters in its order affirming Sergeant Messer’s reinstatement,” the court ruled. While Messer requested 16 hours in overtime pay, MCSD’s Charlie Justice, who also attended the academy, requested only 12 hours. Although a check payable to Messer for the overtime was issued, Hannah withheld it after discovering the discrepancy.Justice told the sheriff he only requested 12 hours for travel time because on April 12, he and Messer stayed at a Motel 6 near the academy. Justice later testified before the Civil Service Commission that he and Messer were in a training session at the Academy until 10 p.m. that evening. In his request for overtime, however, Messer indicated that, on April 12, he began driving back to Mingo County at 9 p.m. He also indicated that he drove back to the Academy the following morning.In May of 2006, Hannah requested a State Police investigation, and Trooper Mike LaFauci was assigned to the case. Soon after, LaFauci spoke with Hannah and with Prosecuting Attorney Michael Sparks. At Spark’s direction, LaFauci obtained the guest record from Motel 6 which revealed that Messer rented the motel room for the entire April 10 - April 13 period.Trooper LaFauci also spoke with Messer, who admitted renting the room and stated that he “had stayed at the hotel some and that he had driven home a few times.”In addition, Messer indicated to LaFauci that he paid for the room himself and thought, at the time, that requesting the overtime would be less expensive for the county than requesting reimbursement for the motel stay.By letter dated May 12, 2006 Hannah placed Messer upon indefinite suspension without pay.Concluding that the evidence was sufficient to charge Messer with attempting to obtain money by false pretenses, Sparks directed LaFauci to prepare a grand jury report and, perceiving a conflict concerning his representation of county officials, sought the appointment of a special prosecutor.Although the record does not show that the matter of Messer’s overtime was ever presented to a grand jury or that a special prosecutor was appointed, Sparks, in a letter to Hannah dated July 7, 2006, indicated that Messer had violated the provisions of W. Va. Code 61-3-24 by obtaining money under false pretenses and W. Va. Code 61-11-8, which concerns the attempts.The letter further stated, “Sergeant Messer’s integrity and credibility as a law enforcement officer has been irreparably compromised. Therefore, I hereby advise you that I will not prosecute any case in which MCSD Sergeant Messer is the primary investigating officer. To do so would be inconsistent with the public interest in the fair administration of justice.”
# posted by Joe Kinzer @ 10:50 PM 
