Kotson to Get Firing Appeal

Matthew Kotson was returned to unpaid administrative leave status with the Wheeling Police Department after a judge granted his appeal of the city’s decision to fire him prior to holding a hearing before a board of his colleagues.

In an order filed with the Ohio County circuit clerk Tuesday, Judge James Mazzone stated the city violated Kotson’s due process rights when it terminated his employment with the police department on Dec. 2. Mazzone ordered a pre-termination hearing be held before a board comprised of three police officers, who will hear evidence in the case and decide whether to fire Kotson. That hearing has not yet been scheduled.

The city will choose one member of the board, while the police department will choose another. Those officers will choose the third member from among the department’s patrolmen – Kotson’s most recent rank.

Kotson’s attorney, Joseph John, on Tuesday said the city violated due process rights that police officers have strived to get codified in their respective municipalities – a message he said he tried to relay to city officials from the outset of the case.

City Solicitor Rosemary Humway-Warmuth said the city was still reviewing Mazzone’s order “in regard to factual account, as well as application of the law.” She also pointed out the judge’s decision does not reinstate Kotson to active duty within the police department.

During an appeal hearing before Mazzone last month, Humway-Warmuth said exigent circumstances, including Kotson’s arrest on allegations of sex crimes and an outstanding traffic citation, permitted the city to forego due process. In light of those circumstances, former Police Chief Robert Matheny on Nov. 28 recommended in writing to City Manager Robert Herron that Kotson’s employment be terminated. Herron placed Kotson on unpaid administrative leave the following day.

West Virginia State Police arrested Kotson on Dec. 1 for allegedly committing multiple sex crimes against four women over several years while employed as a police officer. Herron fired Kotson the next day, citing exigent circumstances.

In the order, Mazzone states Kotson’s arrest does not trigger the exigent circumstances exception to due process because Kotson was on administrative leave at the time and not performing the duties of a police officer.

The city’s “contention that ‘the totality of the circumstances’ of the events leading up to (Kotson’s) termination on Dec. 2, 2011 constituted ‘exigent circumstances’ is without merit,” the order states.

Three of Kotson’s fellow officers served on a post-termination hearing panel in January and upheld Herron’s decision.

In the order, however, Mazzone ruled Sgt. Duwane Taylor should not have served on that panel because of his participation in the investigation into whether Kotson drove a police cruiser while his license was suspended.

Another hearing was held in April before the Wheeling Police Civil Service Commission, which also unanimously upheld Herron’s decision.

Two of the counts of sex crimes against Kotson subsequently were dismissed, while a jury found him innocent of a third count. Trials on the remaining counts are scheduled for March 25 and April 1.