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Judge - County engineer violated contractor's constitutional rights

November 16, 2008|By MATTHEW UMSTEAD

MARTINSBURG, W.VA. - A federal judge has ruled that Berkeley County Engineer William J. Teach violated an electrical contractor's constitutional rights and has granted partial summary judgment in a lawsuit that is pending in district court in Martinsburg, according to court records.

In a 25-page order filed Thursday, Chief U.S. District Judge John Preston Bailey said Teach deprived Charles N. Smith of his due process rights when the county's top engineer "suspended" the man's license in February 2007 for 60 days.

"All Mr. Smith ever wanted was for Berkeley County and Mr. Teach to follow the law and the constitution," Smith's attorney, John C. Yoder, said this week. "The court found that Mr. Teach not only violated Mr. Smith's federal constitutional rights, but also his state constitutional rights, and the judgment of the federal court against Mr. Teach vindicates Mr. Smith's claims."

Attorney Michael D. Lorensen, who was retained by the county to handle the case, deferred comment to county legal counsel Norwood Bentley III, who said he believed Bailey's decision was mistaken.

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"I think the court has misapprehended what the argument is," Bentley said Friday.

Bentley added that Bailey's decision would be a "dangerous ruling" for the county, which he said has not hired an electrical inspector because of budgetary concerns.

Smith, a state-certified inspector, had been performing electrical inspections in Berkeley County from 2003 until February 2007, when Teach was contacted about the condition of electrical portions of a building project off Peace Pipe Lane west of Hedgesville, according to documents filed with the court.

After Smith inspected the property on Feb. 6, 2007, a second inspection report filed by another individual less than a week later revealed 29 electrical code violations, including instances of missing receptacles, hanging wires for two fireplaces and a water heater that wasn't wired, according to court records.

Teach told Smith in a Feb. 21, 2007 letter that his inspection privileges with Berkeley County were suspended for 60 days from receipt of the notification and "future inspections performed and approved with obvious violations will result in a permanent suspension of the inspection privilege."

Bentley said Friday that Teach's letter only meant that the county was not going to use Smith's services for 60 days and acknowledged that Teach could not suspend Smith's license.

Yoder said Friday that the property reinspected last year was work that his client had privately contracted with the developer, yet still required an inspection sticker from the county's engineering office to be approved.

In his order, Bailey noted that state code delegates the authority of suspension or revocation of electrical inspector certifications to the State Fire Marshal's office and that no complaint had been filed against Smith by Teach.

"The only authority given to local government under the West Virginia Code ... is the authority to report infractions to the State Fire Marshal," said Bailey, who went on to reiterate the rules for how complaints are to be filed with the state and then investigated by the state.

"The plaintiff has a property interest in his electrical inspections license, the plaintiff has a liberty interest in his freedom to contract, and the plaintiff was deprived of his property interest and liberty interests without due process of law," Bailey concluded.

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