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Confiscated drug money to fund fill-in prosecutors

By Kate White, Staff writer and Rusty Marks

Kanawha County commissioners voted Tuesday to take drug forfeiture money in an account held by Prosecuting Attorney Mark Plants to help pay for a court-ordered special prosecutor appointed to handle cases Plants and his office are not allowed to take because of a conflict of interest within the prosecutor’s office.

Hours after the meeting, Plants agreed to transfer $75,000 from his drug forfeiture account. He also agreed to reduce his office’s budget next year by $25,000 — and Plants said he would waive the $11,592 salary increase that state law provides him, although county officials questioned whether he could do that.

In April, after Plants was arrested on misdemeanor criminal charges of domestic battery and violating a protective order, Kanawha Circuit Judge Duke Bloom banned Plants and his office from hearing cases involving child abuse and neglect, violent crimes against children by their parents or guardians, or criminal violations of protective orders. Plants is accused of beating his son with a belt and violating a subsequent court order not to have contact with his ex-wife or children.

The County Commission is now paying two special prosecutors because of the conflict of interest. Former McDowell County Prosecuting Attorney Sid Bell is being paid $125 an hour to handle the criminal investigation into the allegations against Plants, while former Kanawha assistant prosecutor Don Morris, appointed by Bloom, is being paid $200 an hour to handle the cases Plants’ office is now banned from taking.

Morris’ first bill, covering about three weeks’ work, came to more than $23,000, while Bell has been paid about $10,000 so far.

Last week, Plants chief of staff Dan Holstein filed a court motion asking Bloom to cut Morris’ hours, calling his bill “grossly excessive.” Holstein also asked that Bloom appoint a prosecutor in Plants’ office to handle felony cases.

In a court filing Monday, Morris defended his work and asked Bloom to order Plants not to make public statements about him. Morris also asked the judge to sanction Plants and his office for calling his bills “excessive.”

But County Commissioners Kent Carper, Dave Hardy and Hoppy Shores fired a salvo of their own at a special meeting on Tuesday, voting to seize $79,000 in drug forfeiture money held by Plants to help pay for the special prosecutor.

The drug forfeiture account is discretionary funding Plants has used for various purposes, including a June 2012 trip to Orlando, Florida, for a conference. Carper said Tuesday that county officials would ask Plants to turn over the money voluntarily but would freeze the account if he refuses.

No one from the prosecutor’s office attended Tuesday’s County Commission meeting, prompting sharp criticism from commissioners.

“I’m surprised Mr. Holstein isn’t here,” Carper said. “He’s being paid by the taxpayers to be here.”

Plants has not been returning calls from the media, but said in a news release that he thinks “it’s a great idea to use money from my office’s drug forfeiture account to offset these costs. This is not tax-dollar money; this is money seized from dangerous drug dealers.”

Assistant prosecutor James Bailey told the Gazette that while he isn’t sure how Plants intends to trim the budget, “I know of 10 or 15 attorneys who would be willing to sacrifice a portion of their salary, because we support Mark and think of him as our boss and the person who should be running this office.”

Carper said he thought it was illegal for Plants not to take part of his salary. In a letter responding to the prosecutor’s proposal, Carper said if he doesn’t elect to take the salary increase prior to July 1, Plants would be unable to do so until his term as prosecutor expires, “regardless of how the conflict is resolved.”

Carper is also concerned budget cuts within the prosecutor’s office might reduce the effectiveness of the office.

“Where will these cuts come from? I request public assurance these cuts will not affect any blameless employees,” Carper said in his response.

The prosecutor’s proposal will be placed on the agenda of the June 12 commission meeting, Carper said.

Carper and Hardy also defended the money they’re paying Morris. Carper said outside lawyers hired by the county make between $125 and $250 an hour.

“You just can’t sit over there in your taxpayer-provided office and pretend you didn’t create a problem,” Carper said.

Carper said Bell is being paid $125 an hour to investigate two misdemeanors. Morris is being paid $200 an hour to handle more than 300 cases, including more than 60 felonies.

“That’s the difference,” Carper said.

Hardy said it was wrong for Plants to try to deflect blame for the crisis to Bloom or to the County Commission.

“Put the blame where it belongs,” Hardy said. “It belongs with the prosecutor.”

Hardy again called for Plants’ resignation on Tuesday.

“We are using the public’s money to buy our way out of a conflict,” he said. “The right thing to do is remove yourself from the conflict.”

Carper, Hardy and Shores still might file a petition to have Plants removed from office but will wait until the criminal charges against the prosecutor are resolved before making that decision. A recent plea deal Plants made with Bell was found to be illegal.

That means the charges against Plants must still be decided in court before the County Commission can plan their next step. Meanwhile, they will have to keep paying special prosecutors.

Hardy hopes the county won’t have to wait that long.

“I hope this problem is resolved shortly,” Hardy said. “There’s one person who can solve this problem.”

Bell filed Freedom of Information Act requests with County Clerk Vera McCormick’s office on Monday, asking for records of Plants’ expenditures.

The requests ask for information about how drug forfeiture money has been spent between 2009 and 2013. It also asks for information about pay and vacation time, among other things, for employees in Plants’ office.

McCormick’s office is asked to provide the information to the West Virginia State Police troopers investigating Plants within five business days.

Bell previously filed subpoenas in Plants’ criminal case requesting that information, plus bank account information, but after a deal was reached that puts Plants on a probationlike period for a year, the subpoenas were put on hold. The legality of that pretrial diversion deal has been called into question.

A hearing is scheduled in Kanawha County Magistrate Court June 24. Plants’ attorney asked the magistrate to quash the subpoenas, saying they have nothing to do with the criminal case.

Reach Rusty Marks at rustymarks@wvgazette.com or 304-348-1215.

Reach Kate White at kate.white@wvgazette.com or 304-348-1723.


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