On November 26, the West Virginia Supreme Court of Appeals issued a decision in a suit filed by the Charleston Gazette (which I posted about back in November of 2010), to enforce a FOIA request initially sent by former Gazette police misconduct reporter Gary Harki. After the circuit court refused to allow the internal files to be produced, the Gazette appealed and ended up winning at the Supreme Court.
The opinion is available in .pdf format on the Court’s website here.
Essentially the Court ruled that state police internal investigation documents are subject to production through FOIA requests, so long as the investigation has been concluded, and the allegations involve official misconduct about which the public has a right to know. I’m summarizing.
This holding did not specifically address political subdivisions, i.e., counties and municipalities. However, I don’t see any legitimate reason for treating them differently under this case law.
The latest of Charleston Gazette reporter Gary Harki’s article critical of the WVSP is, to me anyways, an absolute bombshell – though not surprising in the least. Usually in the media you find brown-nosed reporting with regards to law enforcement, usually which talks about all the criminals who were arrested and/or charged. Harki has had the gusto to take on the West Virginia State Police in a big way.
The article deals with former-Trooper-now-Hinton-Police-Chief-Snavely, who I have discussed before. I wasn’t surprised when I found out that prosecutors were not charging Snavely with a crime. But I was surprised to see Harki’s article titled, “prosecutor not told ex-trooper falsified log“. Apparently the WVSP “investigation” into Snavely uncovered the fact that Snavely falsified his duty log for the evening when he was accused of his wrongdoing. However, they apparently chose to leave that tidbit out of the investigation report which went to the prosecutor. So Harki finds out about this from attorney Mike Clifford. Harki then goes to the prosecutor who made the call. And he is apparently pissed, and rightfully so – since it was published as being his decision not to prosecute Snavely. And of course, as usual, the WVSP is angry at the attorney – at Clifford! It was his fault – he shouldn’t have told Harki.
We have a culture of secrecy in the WVSP. Even though for the most part they are good and law abiding officers, the top brass have have made some decisions which undermine the public’s trust and confidence in their integrity. If you have a public official who has done something wrong, the public needs to know about it, and the public wants to know about it. If covered up, the public gets pissed. And the coverup is always worse than the crime. If they would just throw the bad officers under the bus where they belong, from the very beginning, the WVSP would come out smelling like a rose. It would reinforce our confidence in law enforcement.
Instead we have the awful situation where an innocent citizen can have his civil rights violated by some cowboy cop, and there’s nothing the person can do about it. What can they do? Call the police? Yeah right. Call the West Virginia State Police? Yeah right. Call the Governor? You just get a form letter in return. Call your congressman? You just get a form letter. Call the FBI? Do you have any idea how many complaints they probably get? Without something more to lend legitimacy to your complaint, there is about a 99% chance they will do nothing about it. The only thing you can do is get a civil lawyer on your side. Someone who has the guts to sue the WVSP, and to put up with the WVSP verbally accosting them in every newspaper article rather than commenting on their troopers’ misconduct.
The Register-Herald published an article this morning titled, “prevailing wage hearing held in Raleigh court.” The article discussed a hearing that took place yesterday before Judge Kirkpatrick in the Circuit Court of Raleigh County, regarding the proper method of calculating the “prevailing wage” that workers are required to be paid by employers who are contracted to work on public projects. However, both sides at the hearing agreed that the idea of the “prevailing wage” law is a good one.
The “prevailing wage” law states that the fair minimum rate of wages shall be the rate of wage paid in the locality in West Virginia to the majority of workmen in the same trade or occupation in the construction industry.
Let me decipher this for you. The labor unions are very powerful in West Virginia, and they have their tentacles in every branch of government in the state. They get this bill passed that sounds great to West Virginians: a “prevailing wage” to make sure that evil businesses are not making slaves out of the workers. So, instead of the free market setting the wages as in every other industry in America, we are allowing the government to tell employers what they have to pay their employees. Since the labor unions have their minions at all levels of West Virginia’s gigantic bureaucracy, they essentially get to choose what the “prevailing wage” amount is.
The end result is that the West Virginia taxpayers – i.e., those of us West Virginians who actually pay taxes, including almost every small business, end up paying a gigantic sum of money for any sort of public project, such as road construction, sidewalk construction, guardrail construction, and so on and so forth. This means that those construction flagmen that you see are probably getting paid more than you are, to just stand there all day and waive people through. But this also means that the cost of each of these projects increases exponentially, merely because of the greed of the labor unions and our politicians. And according to an editorial in the State Journal by Craig Blair, most of this money is going to out-of-state companies and workers. Mr. Blair estimates that our state wastes 300 million dollars each year on these overpayment of wages with our tax monies.
While this is going on, our economy is in the toilet. Other workers, who do not have access to our politicians’ giveaways, earn significantly less than workers in the surrounding states. Mr. Blair argues that West Virginia workers make on average $7,932 less per year than the surrounding states workers, and $8,380 less in comparison nationally.
This highlights the fact that there is no “prevailing” wage being paid. There is an artificially-inflated government wage being paid – to the detriment of the rest of the state, and to the detriment of our economy here in West Virginia. For too long in West Virginia, the politicians and their bureaucratic minions have run the economy in the ground. In order to achieve growth and economic prosperity, taxes must be lowered. Who wants to open a small business in West Virginia when you know you are either going to have to pay most of your income in taxes, or you are going to see your roads and sidewalks fall into disrepair? Why not just open your business in North Carolina and not have to worry about it?
We should just let the free market set wages. There is a reason that a guy holding a flag is not worth paying $30 or $40 per hour – because it’s not worth it. Without taxpayer funds, no private market would sustain a business that paid so much for so little value. In a free market, a worker would get his or her feet wet by starting off as a flagman. Then, through hard work and ambition, they would attempt to work their way up the ladder of achievement within their industry or profession. But when the government is essentially the employer, the status quo – or even inefficiency and wastefulness – is par for the course, and is even rewarded.
The next time you drive through a road construction project in West Virginia, take a look at how many workers there are, and note how busy they are. Count how many of them are not doing a darn thing. Then, just remember that your state, your elected politicians, have ordered you, essentially at gunpoint, to pay for each of these guys and gals to have a wage that is exponentially greater than what the private sector would pay, and remind yourself that this is why you pay so much in taxes to the state. Somewhere a bureaucrat and a labor union boss are smiling and counting their money.
This November, keep in mind, that we should elect politicians who will downsize our state government, who will make less laws and regulations, who will lower taxes, and who will put our state and it’s citizens ahead of their own aspirations. The only problem is finding someone like that to vote for….
– John H. Bryan, West Virginia Attorney
A troubling trend is emerging in West Virginia. According to my own experience, and to those of some of my colleagues, State agencies, such as ABC (alcohol beverage control commission) are beginning to become actively involved in criminal cases, such as by trying to assist law enforcement in obtaining statements from suspects or defendants.
For instance, if someone who has an alcohol license is charged with a crime, they will suspend the alcohol license in “the interest of public safety.” Then, to get it back, they request a statement of why you are innocent of the charges. Undoubtedly that statement would end up right in the prosecutor’s file and would be used against you at trial. And if you don’t give the statement, your license remains suspended and you lose the income with which you were depending on to pay for your defense. Many times, the crime charged doesn’t have anything to do with selling alcohol or actual safety of the general public, they are just hassling you. And they can. Your only recourse is to request a hearing before the ABC Commissioner, and then to appeal that decision to the Kanawha County Circuit Court, and then to the WV Supreme Court of Appeals. By the time an arbitrary decision is overturned, you have gone out of business.
Something else they have been doing: if someone is charged with a crime involving consuming alcohol – for instance DUI, they will request the persons help in obtaining information on the establishment where the alcohol was bought or consumed. They trick you into believing that by helping them find out information about this establishment, that it will help your case, or that it will remain confidential. In reality, the statement gets forwarded to the investigating officer or prosecutor that same day.
Moral of the story? If you have been charged with a crime, or even investigated regarding a crime, keep you mouth shut and call a lawyer.
– John H. Bryan, West Virginia Attorney.
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