W.Va. SC to make final decision on magistrate's settlement deal

Jessica M. Karmasek Aug. 8, 2012, 12:35pm



CHARLESTON - The West Virginia Judicial Hearing Board on Wednesday began reviewing a settlement agreement for a county magistrate who resigned late last week.

In a one-page letter sent to the West Virginia Supreme Court of Appeals Friday, Kanawha County Magistrate Carol Fouty said she is stepping down due to "ongoing health problems" and wanting to spend more time with her family.

"I have been employed as a magistrate for the past 26 years and have worked continuously for and in the best interest of the people of this county," she wrote Chief Justice Menis Ketchum.

"My resignation is effective immediately."

Kanawha County Circuit Court Judge Louis "Duke" Bloom swore in Republican Kristen Vieweg to take Fouty's place Monday afternoon.

The settlement agreement, which is being reviewed by the hearing board, which will make a recommendation to the state's high court, calls for Fouty to pay $6,387.39 at a rate of $100 per month.

Fouty, who was not present at Wednesday's hearing, has asked that the payments begin in January.

The former magistrate would still be eligible to receive retirement pay under the agreement.

Also under the deal, she agrees not to serve if elected in the Nov. 6 general election.

Fouty's name may still remain on the ballot come November, however.

Her attorney, Michael J. DelGiudice of Charleston law firm Ciccarello, DelGiudice and Lafon, said Wednesday that his client is in the midst of trying to have her name removed.

"My understanding is that Carol has completed the first step in having her name taken off the November ballot," he said following the hearing. "The second step is getting a certificate of withdraw."

DelGiudice said he thinks that must be done by Aug. 15.

"From what I understand her name stays on the ballot, but any votes she receives won't be counted," he said.

The State Election Commission said at a separate meeting Wednesday morning that it has reserved a "potential emergency meeting" for 10 a.m. Aug. 15 to take up the matter.

DelGiudice said Fouty felt it was in her "best interest" to step down at this time.

"She wasn't in the greatest of health before," he said, adding that the stress of the disciplinary proceedings hasn't helped.

Judge Lawrance Miller Jr., who serves on the state's Eighteenth Judicial Circuit and is acting as a hearing examiner for the Judicial Hearing Board, will review the settlement agreement and make a recommendation to the Supreme Court.

The Court then will make a final decision, said spokeswoman Jennifer Bundy.

No timeframe was given as far as when that decision will be made.

In June, the state Supreme Court denied to reconsider a previous order suspending Fouty without pay pending this month's disciplinary proceedings.

The Court suspended Fouty in April without pay after an investigation was done regarding her housekeeper, who was arrested for driving under the influence while driving Fouty's car.

In its June 12 follow-up ruling, the Court said both the state's Code of Judicial Conduct and existing case law supported Fouty's suspension without pay.

"There is probable cause in this case to believe that Magistrate Fouty engaged in serious violations of the Code of Judicial Conduct," the justices wrote in their per curiam decision.

"The unilateral dismissal of a criminal charge, which she admits occurred in the Fisher case, is clearly improper. It directly relates to the administration of justice and the public's perception of the same.

"Arguably, this transgression alone may not warrant suspension without pay, however, the statement of charges contains multiple counts involving a variety of questionable judicial practices and activities, casting serious doubt on the integrity of the judicial system."

The justices continued, "The charges regard conduct calling into question the proper administration of justice as well as the judicial officer's public persona. As was recognized in the order of suspension, the seriousness of the present charges are further compounded by the existence of prior admonishments."

An investigation began after Fouty's housekeeper, Melea Dawn Fisher, was arrested on Feb. 27 for driving under the influence while driving the magistrate's car. Prior to the incident, Fouty had dismissed a drug charge against the woman and then hired her as her maid.

Fouty also released a man on a personal recognizance bond after the police had charged him with driving while under the influence of drugs. After he was released by Fouty, the man returned to his car and was arrested by police a second time.

The Judicial Disciplinary Counsel's formal charges, filed against Fouty April 10, also mention a man who needed an attorney. Fouty agreed to help the man if he would fix the concrete at her home.

The charges mention another man who did yard work for her in return for money needed to repay another man who paid his bail.

In addition, Fouty was previously admonished in December 2011 for violating canons of the Code of Judicial Conduct.

In its June ruling, the Court noted that it was "not unsympathetic" to the financial hardship their decision imposed on the magistrate, but added that its "primary duty is to defend the integrity of the judicial system."

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