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Berkeley Co., engineers settle suit with electrical inspector

August 13, 2009|By MATTHEW UMSTEAD

MARTINSBURG, W.Va. -- The Berkeley County Commission and County Engineer William J. Teach have agreed to pay $15,000 to settle a federal lawsuit filed by an electrical inspector who alleged his constitutional rights were violated.

The settlement in favor of Charles N. Smith Jr. comes more than two years after the private contractor filed the complaint in U.S. District Court in Martinsburg. The settlement order signed July 31 by Judge John Preston Bailey does not include plaintiff attorneys fees and costs that are expected to be substantially greater than $15,000.

Norwood Bentley, the County Commission's legal counsel, said Thursday the settlement and pending legal costs would be paid through the county's casualty insurance policy with the state Board of Risk and Insurance Management.

Smith was represented by Linda Gutsell and John C. Yoder.

Yoder withdrew from the case in December 2008 after being elected circuit judge in the 23rd Judicial Circuit. Attorney Michael D. Lorensen, who ran against Yoder in the general election, is representing the County Commission.

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Gutsell said Thursday her client was very pleased with the settlement, which was outlined in a three-page order.

"His reputation was of utmost importance to him," Gutsell said, adding that her client was less interested in money. "He's very happy to have been vindicated. We're just sorry it took so long."

Smith filed the complaint in April 2007.

Smith's attorneys alleged violations of their client's Fifth and Fourteenth Amendment right to due process and First Amendment right of access to the courts and negligence.

Bailey ruled in November 2008 that Teach deprived Smith of his due process rights when the county's top engineer suspended the contractor's license for 60 days in February 2007.

Bailey, at that time, granted partial summary judgment in Smith's favor. In July, he denied a second motion for summary judgment filed in April 2009, upholding his previous ruling.

The settlement nixed a trial scheduled to begin this week, and Bentley said Thursday the county ruled out appealing the case to the 4th Circuit Court of Appeals because of the time and expense and because Teach told the county he would be retiring at the end of 2009.

The County Commission on Thursday authorized advertising to hire a new professional engineer and Bentley said the county is reviewing how the county's engineering/building inspection department is organized.

"I think we'll be looking very closely at how we perform the inspection function," Bentley said. "Because I don't think the county can live with what the court suggested the law is."

The county does not have electrical inspectors on staff. Smith, a state-certified inspector, had been performing inspections in Berkeley County from 2003 until February 2007, when Teach suspended his privileges.

The suspension letter that Smith received came after Teach was contacted about the condition of electrical elements of a building project off Peace Pipe Lane west of Hedgesville, according to documents filed with the court.

Thomas K. Norton III and/or Tom Norton Builders LLC, T/A Clarion Homes, who also were named as defendents in the lawsuit, were listed as the project's general contractor.

After Smith inspected the property on Feb. 6, 2007, a second inspection by another inspector on Feb. 12 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, but the inspector was not given notice of the complaint or given the opportunity to contest his suspension within 72 hours of receiving the letter, according to court records.

Bailey noted in his November 2008 ruling that state code delegates the authority of suspension or revocation of electrical inspector certifications to the State Fire Marshal's office.

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