Supreme Court Ruling Sought on Kotson

Wheeling City Solicitor Rosemary Humway-Warmuth is appealing to the West Virginia Supreme Court, asserting that Circuit Judge James Mazzone made numerous errors in his decision to restore Matthew Kotson to his previous status with the police department.

Mazzone in October overturned City Manager Robert Herron’s decision to fire Kotson, as well as the Wheeling Police Civil Service Commission’s subsequent ruling to uphold that decision.

The judge ordered Kotson placed back on unpaid administrative leave with the department and a pre-termination hearing convened to decide the former police officer’s fate.

Humway-Warmuth appealed to the state’s high court last month and contended Mazzone committed nine errors while coming to his ruling. Among the alleged errors were the judge’s unclear wording of state law, his interpretation and application of case law and his ruling that Kotson’s due process rights were violated.

The appeal application also states that Mazzone wrongly “substituted (his) judgment for that of the decision makers in this matter,” referring to Herron and the Police Civil Service Commission.

Humway-Warmuth essentially asserts that every major decision Mazzone offered in his October ruling was made in error, and she is also requesting a stay of his judgment pending argument before the Supreme Court.

That includes waiting to convene the pre-termination hearing, which is held before a board comprised of three police officers who will hear evidence in the case and decide whether to fire Kotson.

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.

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.

Humway-Warmuth has continued to point to exigent circumstances as justification for Kotson’s firing without a pre-termination hearing, more than a year later and after Mazzone said the claim was “without merit.”

In addition to the criminal charges against Kotson, the city listed a domestic violence protective order that was filed against the former officer as a factor contributing to the exigent circumstances. That order has since been dissolved.

Additionally, 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.