IN THE CIRCUIT COURT OF ROANE COUNTY, WEST VIRGINIA Jay Lawrence Smith, an individual Plaintiff, v. Civil Action Ne Honorable nila H. Ashley Judge Terry Williams, in his capacity as ‘the Mayor of the city of Spencer, and The City of Spencer, a municipal corporation, Defendants COMPLAINT FOF DECLARATORY AND INJUNCTIVE RELIEF Now comes the Plaintiff, Jay Lawrence Smith, who states as follows: PARTIES 1. Jay Lawrence Smith (“Smith”) is a resident of Hurricane, Putnam County, West Virginia, 2. Smith is a free-lance legal rescarcher, and journalist whose principal place of business is in South Charleston, Kanawha County, West Virginia. 3. Defendant Terry Williams (“Terry Williams”) is a resident of Spencer, Roane County, West Virginia and is, at all times relevant hereto, the mayor of the city of Spencer, the county seat. 4. Upon information and belief, Williams has been Spencer’s mayor for over 30 years.5. The City of Spencer (“City”) is a municipal corporation organized under the laws of the state of West Virginia. Along with an elected city council, and recorder, Williams is, responsible for the management of City operations/employees including, but not limited, a police department. 6. As the conduct complained of, and as more particularly set forth herein, occurred in Roane County, this matter is properly venued with this Court. FACTUAL BACKGROUND 7. Smith restates the allegations contained in Paragraphs 1-6. 8 Onorabout Monday, Dec. 12, 2016, Smith sent Terry Williams a Freedom of Information Act (“FOIA”) request. The request, sent via U.S. Mail, and posted on the City’s Facebook page, sought the salary, employment and disciplinary histories for two employees. 9. The employees listed in Smith's FOIA request were: ‘A. Eads, Hueston M. (“Eads”) B. Williams, Matthew W. “Bo” (“Matthew Williams”) 10. A copy of the FOIA request is attached as Exhibit “A.” 11. Atthe time of Smith’s request, Matthew Williams was employed by the City as a police officer, and the sheriff-elect of Roane County.12. Also, Matthew Williams was under criminal investigation for taking drugs from the police department's evidence room for his personal use. 13. Upon information and belief, Matthew Williams is Terry Williams’ great-nephew. 14. Ina civil suit filed in Kanawha Circuit Court (Case No. 12-C-1204), Jess “Mo” Starcher identified Eads as a person of interest in the disappearance, and subsequent death of his daughter, Christian Dawn Starcher-Seabolt (“Starcher-Seabolt”). 15. Upon information and belief, (“Starcher-Seabolt”) went missing on Aug. 31, 2002. Her remains were found in the area of Creston along the Wirt-Roane-Calhoun County line on Dec. 19, 2009, 16. West Virginia Code 29B-1-1, et. seq. (the “FOIA law”) requires that a records custodian at least respond to a FOIA request within five business days. 17. As such, Terry Williams, and the City were obligated to have something in writing to Smith dated Monday, Dec. 19, 2016. 18. Sometime after Dec. 12, Smith received an envelope addressed to him with the City’s return address. Despite postage affixed, the envelope contained no postmarking. 19. In the envelope as a undated letter bearing on the City’s and Terry Williams’ letterhead listing Matthew Williams’ and Eads’ salary and employment histories, and a March 12, 2015 letter of commendation written by Terry Williams, acting Spencer Police Chief Gregory J. Nichols for Matthew Williams. , 20. A copy of the envelope, and its contents are attached as Exhibit “B.21. Neither Terry Williams nor the City responded to part II of Smith’s FOIA request seeking Eads’ and Matthew Williams’ disciplinary histories. 22. As of the filing of instant suit - which is 135 days beyond the statutory deadline - Smith has received no follow-up response from Defendants and/or any of their agents, to part II of his Dec. 12, 2016 FOIA request, including any citation to the specifie statutory exemption in state Code why he is prohibited access to that information. 23. The failure of Defendants to provide Smith all the information in his Dec. 12, 2016 FOIA request has prompted the instant suit ARGUMENTS, 24, Smith restates the allegations in paragraphs 1-23. 25. 29B-1-3(1) of the FOIA law specifically states: “Every person has a right to inspect or copy any public record of a public body in this State, except as otherwise expressly provided by section four [29B-1-4] of this article.” 26. As a result of their non-reply, Defendants have failed to provide a reason under 29B- 1-4(1) as to why Smith cannot see the information first requested on Dec. 12, 2016. 27. Instead, Defendants have deliberately, maliciously, and intentionally failed to respond to a portion of Smith's FOLA request.28. Smith’ interest in this action outweighs any arguments for non-disclosure. Moreover, the information requested is public, WHEREFORE, the Plaintiff prays that this Court: 1. declare that the Defendants’ refusal to disclose the records requested by Smith is unlawful; 2. declare that the disciplinary histories of law enforcement officers employed by political subdivisions, and municipal corporations, including, but not limited those of Defendant City are public record consistent with the Supreme Court of Appeals of West Virginia’s opinion in Gazette v. Smithers. 752 S. E.2d 603,620 (W. Va. 2013). 3. grant injunctive relief enjoining Defendants from withholding records without justification, and order production, at Defendants’ cost, to Smith of records improperly withheld; 4. grant injunctive relief compelling Defendants to notify the West Virginia Secretary of State Office of the instant suit's final outcome; 5. grant a permanent injunction requiring the Defendants to undergo training for better understanding of W. Va. Code § 29B, and implement a plan for more timely, and accurate responses to FOIA requests; 6. grant a permanent injunction requiring Defendants, in accordance with W. Va. Code 298, as amended in 2015 by H.B. 2636, to establish a “reasonable fee” for duplication of records made with Defendants’ devices not to exceed $.05/page.7. award Smith his costs, and reasonable attomey fees - if applicable - incurred in this action, as required by W. Va. Code 29B-1-7; and 8. grant Smith such other relief as the Court may 5312 MacCorkle Ave., $.W. #238 South Charleston, WV 25309 (304) 610-2031 msimediainc@yahoo.com STATE OF WEST VIRGINIA COUNTY OF PUTNAM The fonegoing instrument was acknowledged, before day of _ Hwaves me this ad » 2047, by ey Baw, : My Commission expires 28 January 2018, MAbs. pampooommmo»»rn, OFFICULSEAL STATE OF WEST VIRGINIA § NOTARY PUBLIC < Retina lemon sigur don unions, wv agsae 3 Gna ean12 December 2016 ‘Terry Williams, mayor City of Spencer 316 Court St. Spencer, WV 25276 Dear Mayor Williams: { Pursuant to the West Virginia Freedom of Information Act (W. Va. Code aii 4, et. seq.), I request access to the following: L. The salary, and employment history of the following city: employe: A. Eads, Hueston M. B. Williams, Matthew “Bo” The information shall include, but not be limited to, the following: 2. Beginning title. 3. Current salary, if applicable. 4. Current title, if applicable. 5, Final salary, if applicable. 6. Final title, if applicable. 7. Changes in salary during employment. 8. Changes in title during employment. 9. Commendations, and citations awarded during employment. | | i i \ 1. Beginning salary. | i i | | Il. The disciplinary history of the above-named employees. Informftion shall include, but not be limited to, the following: A. The total number of inquires opened during their employment. B. The completed reports into said inquiries. ‘As required by the Act, I expect a timely response. If you chose to deny all r part of my request, please cite the specific part of the Code for your denial. ‘Once the documents are available, I can be contacted at either the telephone number or addresses listed below. I thank you, Mayor Williams, for taking the time to field my request, and look forward to your prompt reply. |5312 MacCorkle Ave., S.W. #238 South Charleston, WV 25309 (681) 233-3382 mslmediaine@yahoo.com Sent via U.S. Mail and e-mailwe// . Be Be Be Be he S312 MWalak&e Awe Sle - FAY S. Chakushy wo 2530412 December 2016 ‘Terry Williams, mayor City of Spencer 116 Court St. Spencer, WV 25276 ‘Dear Mayor Williams: Pursuant to the West Virginia Freedom of Information Act (W. Va. Code 298-1-1, et. seq,), I request access to the following: I. The salary, and employment history of the following city employees: A. Eads, Hueston M. B. Williams, Matthew “Bo” ‘The information shall include, but not be limited to, the following: Beginning salary. Beginning title. . Current salary, if applicable. Current title, if applicable. Final salary, if applicable. . Final title, if applicable. . Changes in salary during employment. . Changes in title during employment. . Commendations, and citations awarded during employment. eeyoaysene IL. The disciplinary history of the above-named employees. Information shall include, but not be limited to, the following: ‘A. The total number of inquires opened during their employment. B. The completed reports into said inquiries. ‘As required by the Act, I expect a'timely response. If you chose to deny all or part of my request, please cite the specific part of the Code for your denial. Once the documents are available, I can be contacted at either the telephone number or addresses listed below. I thank you, Mayor Williams, for taking the time to field my request, and look forward to your prompt reply.5312 MacCorkle Ave., S.W. #238 South Charleston, WV 25309 (681) 233-3382 mslmediainc@yahoo.com Sent via U.S. Mail and\e-mail LQ net reco Onsite Bn dagCity of Spencer 116 Counr Street SPENCER, WEST VIRGINIA 25276 TELEPHONE 304-927-1640 Tung A. Witttams, Mager Matthew Williams Hire Date: 12/01/2014 - Sargent Salary: $16.83 per hour (starting pay) $17.31 per hour (11/30/2015) Resigned : Dec 12, 2016 - Sargent Huston M. Eads Hire Date: 04/21/1994 Resigned: 12/31/1996 — Captain Rehired: 09/01/1997 Resigned: 10/15 /2003 - Captain Salary: $9.50 per hourCity of Spencer Police Department 116 Court Street Spencer, WV 25276 (304) 927-5616 — phone (304) 927-3724 — fax Spencerpd] @outlook.com March 12, 2015 DEPARTMENTAL LETTER OF COMMENDATION On March 11, 2015 at approximately 1730 hrs. Sgt. Matthew Williams was at the Roane County Sheriff's Office when a man drove up and said there appeared to be a child in the water near the Spencer Middle School. Sgt. Willianis immediately responded to the area. Once on location Sgt. Williams observed the 15 year old gir] in the water holding on to a branch. The branch then broke and the girl was swept downstream in the strong current. Sgt. Williams immediately and without hesitation jumped in the water and was able to grab the girl. They were swept downstream until Sgt. Williams could get ahold of the creek bank. During this incident Sgt. Williams maintained composure and showed great courage, professionalism and selflessness while not giving a thought for his own safety in order to save another. On behalf of the Spencer Police Department, I present Chief's Commendation to Sergeant Matthew W. Williams for Outstanding Performance and Professionalism for his selfless actions, high level of professionalism during this dangerous incident. Your dedication and diligence to your sworn duty and this department are greatly appreciated. Terry A. Williams Gregory J. Nichols Mayor 2 Acting Chief of PoliceIrae crncurr courr or _{\ Ui COUNTY, WEST VIRGINIA CIVIL CASE INFORMATION STATEMENT ‘(Civil Cases Other than Domestic Relations) Besser Gee PESOS HL_Snitn “ — Dass to “(Shenk Personal 7 Genera isl Di Adeption Dy Mas Litigation az defined CR 26040) 1 Administative Agency Appel Di Attesor {Dic Appel fom Magimte Comet, Feta Asters Ci Mise taneous Civil Fetion Menta Fygice 1D osercisenip Bote, Bi Medion Ralpaccn Ii JURVDEMAND: CO YerleTho CASE WILL BEREADY FOR TRIAL BY (\owhvVeury EE eer 1 povouonayy javas raasrarcann OF YOUR CLIENTS — | [) Wieelshair scoessible hearing room and other facilites se IN THIS CASE | Di tnteprem or othr auitary ad forthe deafand hard of hearing REQUIRE SPECIAL sptpeen rst ausiny aie eet inaine ei unre pee Dve: ONe Dome e meri — Fim; CO Phinisr D1 Defendant Address: cross-Defondant C Cross-Complainant evison Date: 1220015ves San Mh foo Wilkens = CIVIL CASE INFORMATION STATEMENT DEFENDANTS) CONTINUATION PAGE et Aaver Yi) Aipeotsenie: SITE Coy write Days io Answer CS ‘Type of Serve: Days te Answer ‘Type of Service: ‘Type of Serve: vil Cast Uniormation Sits ment DefodaniG) Conantion Paps