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Five Mecklenburg County trustees take State Police to court / June 23, 2010
Five men who were investigated by the Virginia State Police while serving on the Mecklenburg County School Board in 2007-08 have filed a lawsuit in Richmond City Circuit Court seeking civil penalties and relief from any further investigations.

The petitioners are Lewis Ashworth, Eddie Callahan, Thomas C. Coleman III, William F. Driggs and G. Glenn Edwards. Trustee Mary Hicks and former board member James C. Hall, also named in indictments, are not involved in the suit.

In a June 17 filing, the five plaintiffs allege the State Police conducted unlawful activities in the course of their civil and criminal investigations and responded with delay and cover-up when the petitioners’ attorneys sought information about the investigation.

The petition is against the Virginia Department of State Police and the state police superintendent, Col. W. Steven Flaherty.

McDonnell requests investigation

Then-Attorney General Robert McDonnell asked for the Virginia State Police investigation in response to a request from a special prosecutor, Prince Edward County Commonwealth’s Attorney James Ennis.

“Upon review of the request made and supporting materials, I am of the opinion that an investigation is warranted,” McDonnell wrote in a memo to Flaherty.

McDonnell’s memo requesting the investigation into alleged wrongdoing by School Board members does not specify whether the investigation would be civil or criminal in nature.

The state police investigation led to indictments of the trustees on misdemeanor charges of violating the state public procurement act in 2007 — stemming from the School Board’s vote to hire a search firm to help replace ousted superintendent Dr. Frank Polakiewicz.

In addition, then-board chairman Thomas Coleman faced an additional charge for entering into a contract with the firm, and Edwards was charged with two misdemeanor violations of failure to disclose a conflict of interest when he took part in votes on compensation questions that affected his wife, a school division employee.

Charges dismissed

All charges were eventually dropped, but the trustees never learned who lodged complaints against them in August 2007 and August 2008.

“Everybody believes in the right to face your accusers,” Edwards said last night.

The investigation and subsequent court hearings didn’t help the reputations of the trustees participating in the lawsuit, he said.

In response to advice from attorneys, Ashworth declined to comment on the petition.

The petition notes that among the minority on a School Board vote to dismiss Polakiewicz was B.A. Bowen, an agent of the Department of State Police who resigned from the board in protest following the dismissal of Polakiewicz.

According to the petition, testimony and affidavits from state police investigator Gary Witz were problematic for three reasons:

n there was no violation of the state’s public procurement code;

n the public procurement code the board members were charged with violating is civil not criminal;

n the one-year statute of limitations had expired before charges were brought.

Petitioners seek information

Attorneys representing the petitioners wrote in January 2010 requesting documents related to the investigation from the Virginia State Police under the Freedom of Information Act and the Virginia Government Data Collection and Dissemination Practices Act.

According to the petition filed last week, the trustees and state police agreed to a February 17 deadline for state police to respond to the request for information.

On Feb. 19 the state police responded in a five-page letter that the Data Act does not apply to personal information systems maintained by state police that deal with investigations “related to criminal activity.”

According to the petition, state police conceded that FOIA applies but “withheld many documents and redacted others” claiming that under FOIA, the agency can withhold information relating to a criminal investigation.

“Pursuant to my request for an extension to respond, the requested records are being provided in part (approximately 3,348 pages) and being withheld in part because the Department is exercising its discretion to withhold a portion of the records (approximately 181 pages) in accordance with Virginia Code Section 2.2-3706 (F) (1) as this file consists of complaints, memoranda, correspondence, case files or reports, witness statements, and evidence relating to a criminal investigation or prosecution,” states a letter from the state police department to the Richmond law firm of Troutman Sanders, which is representing the five trustees.

The Feb. 19 letter maintains that Virginia Code definition of criminal activity (Section 2.2-3706 (B) includes “improper disclosures of personal interest and violations of conflict of interest and procurement statutes.”

In response to a request from the petitioners’ attorneys for the state police department’s policies and directives regarding the destruction of records, the letter stated that the policies were enclosed but the IT division had informed the legal specialist that “because of space, deleted records may only be retained on the server for a few months and therefore, there would not be any documents responsive to the request.”

In seeking injunctive relief from further investigations, the five past and present trustees also make a claim for legal costs arising from the lawsuit. They do not seek monetary damages from the state police.

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