IN THE CIRCUIT COURT OF OHIO COUNTY, WEST VIRGINIA SUSAN BURKE, v. Plaintiff, Civil Action No.

10-C- Honorable

OHIO COUNTY COMMISSION, Defendant. COMPLAINT Comes now the Plaintiff, Susan Burke, by and through counsel, John H. Bryan

and Thomas E. White, and for her Complaint states as follows: PARTIES AND JURISDICTION 1. The Plaintiff, Susan Burke, is now and was at all times relevant hereto, a

resident of the City of Columbia, Richland County, South Carolina. 2. Defendant Ohio County Commission (“OCC”) is a political subdivision of

the State of West Virginia, and as such, is liable for the negligent conduct of its agents and employees, including the Sheriff, the Sheriffʼs Department, and the employees of the Sheriffʼs Department, so long as that conduct was carried out within the scope of their employment. See West Virginia Governmental Tort Claims and Insurance Reform Act, W. Va. Code § 29-12A-1, et seq. 3. Defendant OCC, through then-Sheriff Tom Burgoyne employed, at all

times relevant herein, deputies to engage in law enforcement duties in Ohio County, West Virginia, including Deputy Charles Kittle, Deputy Goode and then-Chief Deputy Pat Butler (now Sheriff). It is alleged herein that Chief Deputy Butler, Deputy Goode and the Sheriff were at all times acting in the scope of their employment and authority.

Burke v. Ohio County Commission Civil Action No. 10-CPage 2

4.

Venue is proper in Ohio County, West Virginia, pursuant to W. Va. Code §

29-12A-3, as said county is the location of the defendant political subdivision. 5. The causes of action asserted herein against the Defendant refer to acts

performed by agents and employees of said Defendant political subdivision, rather than the formulation and implementation of policy related to how law enforcement and police protection are provided. STATEMENT OF FACTS 6. Plaintiff Susan Burke is a stay-at-home mother to four children and is

married to Sean Burke, an Application Engineer Manager, based out of Columbia, South Carolina. 7. Mrs. Burkeʼs ex-husband is Charles Kittle, who was at all times relevant

hereto, an Ohio County deputy employed by the Defendant. Two children were born of their marriage, and since their divorce, they have extensively litigated custody issues. 8. Deputy Kittle was previously employed by the City of Martinsburg Police

Department, located in Berkeley County, West Virginia, which was the location of residence during Mrs. Burkeʼs marriage to Mr. Kittle. After the divorce, the Plaintiff moved to Ohio County, West Virginia. 9. On or about August of 2005, Ohio County Sheriff Tom Burgoyne hired Mr.

Kittle as a deputy. 10. At the time Deputy Kittle was hired, his employment file with the

Martinsburg Police Department contained a prior disciplinary history, including allegations of domestic violence towards the Plaintiff, abuse of his position as a police

Burke v. Ohio County Commission Civil Action No. 10-CPage 3

officer against the Plaintiff, and other inappropriate behavior towards women in his capacity as a police officer. 11. Sheriff Burgoyne was aware, or should have been aware, of the totality of

Deputy Kittleʼs prior disciplinary history, as well as Mr. Kittleʼs practice of using and abusing his employment position as a police officer to harass the Plaintiff and to achieve other inappropriate ulterior motives. 12. Despite his knowledge, Sheriff Burgoyne, as agent for the OCC

nevertheless hired Deputy Kittle and continued his employment as a deputy. The Plaintiffʼs father-in-law, Robert Burke, warned the Sheriff upon learning of his hiring of Mr. Kittle, that Kittle “would cause further troubles,” and further commented that “I wish you would have called me before hiring Kittle.” Sheriff Burgoyne assured Mr. Burke that Kittle “wonʼt be a problem to you” and that he warned Kittle to “be on his best behavior.” Mr. Burke warned the Sheriff that KIttle would cause further troubles. 13. Deputy Kittle began searching police records for information on the

Plaintiffʼs husband, Sean Burke. On or about February 2006, Kittle shows the Plaintiff a police report regarding Mr. Burke from October 8, 2004. During a family court hearing, Deputy Kittle placed the report on top of a folder, stating that cameras were watching, and he could get into trouble if he were caught with the document. He urged the Plaintiff to leave her husband. 14. Shortly thereafter, the Plaintiffʼs daughter came home asking for the last

names of people who were at the Plaintiffʼs home. Deputy Kittle eventually admitted to the Plaintiff that he requested his daughter to do so in order to run background checks

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on people who visit her home. Deputy Kittle further threatened to run license plate checks of vehicles parked in front of their home. 15. Plaintiff called Sheriff Burgoyne to inform him of Deputy Kittleʼs actions.

The Sheriff replied that she should not worry, that he would take care of the problem and call her back. He did neither. Kittle subsequently stated that the Sheriff and he were “tight” and that the Sheriff “knows what kind of person Sean is and understands.” 16. On or about the summer of 2007, Kittle threatens to do a “welfare check”

on their children” if they did not return his call within 15 minutes. He stated that he was allowed to do so because he “is a cop and we do it all the time.” 17. On or about the fall of 2007, the Plaintiff becomes aware that Deputy

Kittle, in his capacity as the school resource officer for Triadelphia School, has been communicating information about the Plaintiff and her husband to students at the school, including comments about how much he hates Sean Burke and details about the pending custody case. 18. On or about January of 2008, during a family court hearing, Sean Burke

was required by the judge to give a contact number to the Court. A few days later, Mr. Burke began receiving prank telephone calls on his cell phone. The calls were tracked to a young girl who was a student at Triadelphia Middle School, where Deputy Kittle was the school resource officer. The parents of the student told the Plaintiff that Deputy Kittle provided the student with the telephone number. The parents stated that they were filing a complaint with the school about Deputy Kittleʼs interactions with their daughter.

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19.

On or about May 1, 2008, someone unsuccessfully attempted to “hack”

into the Plaintiffʼs “Gmail” email account. 20. On or about May 16, 2008, while Deputy Kittle was on duty as the school

resource officer at the Triadelphia Middle School, the Plaintiffʼs “Yahoo” email account was successfully “hacked” by Deputy Kittle. The Plaintiff immediately called Deputy Kittle and asked him if he was responsible for the hack. He denied any involvement. 21. Deputy Kittle accessed the Plaintiffʼs email account by answering the

secret question, as a part of the mechanism for users to recover accounts when passwords are lost or forgotten, and then changing the password. He then changed the password and used his own password to access her account. 22. Deputy Kittle, while on duty, and using resources made available to him

through his employment by the OCC, downloaded extremely private and sensitive personal emails exchanged between the Plaintiff and her husband. He saved and copied the emails. 23. On or about June of 2008, during a telephonic family court hearing

regarding parenting time, Deputy Kittle stated that he had “documents” and that he was concerned for the children. He accused Mr. Burke of abusing drugs. After questioning from the family court judge, Kittle answered that he obtained internet communications. Kittle disclosed and provided copies of the emails to the guardian ad litem. 24. On or about July 29, 2008, the Plaintiff mailed a letter to Sheriff Burgoyne,

informing him about the hacking of her email account by Deputy Kittle while on duty, as well as Deputy Kittleʼs use of the emails in their pending family court case. The Plaintiff also again reiterated her concerns about Kittleʼs past conduct regarding the police

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reports, the background checks, the license plate checks and the threatened welfare checks, and other harassment of her and her husband by Deputy Kittle. 25. On or about August of 2008, Deputy Goode of the Ohio County Sheriffʼs

Department, in his official capacity, and at the request of Deputy Kittle, contacted the Plaintiff by telephone, and requested that the Plaintiff drop the children off at Deputy Kittleʼs home for the weekend. He stated that he called the judge personally to find out whether she had any right to have the children that weekend. The judge apparently could not recall what the arrangements were. Deputy Goode said that if she would drop the children off with Kittle for the weekend, he would make sure the children were returned on Monday, and that he would go pick them up himself if Kittle refused, since he was working on Monday. Deputy Kittle called the Plaintiff shortly after she dropped the children off with him and commented that he would not be returning the children as Goode had promised. The Plaintiff attempted to contact Deputy Goode, but was told by by Deputy Lewis with the Ohio County Sheriffʼs Department that Deputy Goode was off and would not be returning until Tuesday. Shortly thereafter, the Plaintiff received a call from Deputy Lewis, who stated that if she wanted to make a complaint, that she could complain to Chief Deputy Pat Butler. Deputy Lewis also stated, “by the way, Chuck wants you to stay off his property.” The Plaintiff hand delivered a complaint to Chief Deputy Pat Butler. 26. Later in August of 2008, during a family court proceeding, Deputy Kittle

again attempted to submit the stolen emails as evidence. The family court judge asked Kittle how he came into possession of the emails. Kittle replied that while working as the student resource officer at Triadelphia Middle School, he was assigned to a

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“Myspace investigation”, which led him to somehow receiving the emails. The judge replied that the emails were illegally obtained and that he would not accept them into evidence. After the hearing, the Plaintiffʼs family law attorney stepped into the Sheriffʼs office and informed Chief Deputy Pat Butler of Deputy Kittleʼs admission. Chief Deputy Butler replied that the Sheriff didnʼt want to deal with it, but that he knows what he would do if he were Sheriff - implying that he would discipline Kittle and resolve the problem. 27. Also in August of 2008, the Plaintiff and her family law attorney had a

meeting with Sheriff Burgoyne regarding Deputy Kittleʼs actions. The Sheriff stated that he “feels sympathy” for Deputy Kittle, and that he will not fire him, and that he communicated this information to Deputy Kittle. The Sheriff also stated that Deputy Kittle previously admitted to him that he had hacked the Plaintiffʼs email account and that he would do it again. The Sheriff noted that Kittle did it because “he was a concerned father.” The Sheriff stated that he would “have a talking to” with Deputy Kittle. The Sheriff further stated that Kittle offered to show him the substance of the emails, but that he refused, and that he has now elected to take his name of of Deputy Kittleʼs family court witness list. 28. Also in August of 2008, the Plaintiffʼs family law attorney receives a phone

call from Sheriff Burgoyne. He tells her to send a message to the Plaintiff: that she is “barking up the wrong tree, and does not want to go there,” insinuating that if she continues to pursue her complaint against Kittle that she will suffer some repercussions. 29. During the family court final hearing on August 18, 2008, after questioning

by the Plaintiffʼs family law attorney, Deputy Kittle admitted to running an “NCIC” background check on Sean Burke, commenting that “most police officers do [run illegal

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NCIC background checks].” Also during the final hearing, the principal of Tridelphia Middle School testified that when he asked Kittle about hacking into the Plaintiffʼs email, he replied that he did not do it. The judge then interrupted the principal and said “he did do it, he admitted it.” 30. On or about September of 2009, Deputy Kittle performs a “traffic stop” on

the Plaintiffʼs family law attorney. During the stop he “winked” at her. 31. On or about October 15, 2008, Deputy Kittle filed a complaint against the

Plaintiffʼs family law attorney before the Lawyer Disciplinary Board. The complaint was unfounded and was dismissed. 32. Thereafter, the Plaintiff and her family members hear, from many other

third parties, communications regarding the substance of the hacked emails, from Deputy Kittle who was continuing to use the emails against the Plaintiff and her family. 33. Special Prosecutor Tim Haught was appointed to prosecute Deputy Kittle

for computer invasion of privacy. The Plaintiff called him on or about January 2009 to request the status of the case. He tells her that he suspects Deputy Kittle will be fired because he is a “black mark on the entire department.” 34. Also in January of 2009, the Plaintiff spoke with Sgt. M.S. Adams of the

Wheeling detachment of the West Virginia State Police, who informs her that Deputy Kittle was given three days with no pay due to the email incident. Sgt. Adams also stated that he was given a copy of the hacked emails by Deputy Kittle. During a radio interview on a WWVA talk show, Chief Deputy Pat Butler stated that Deputy Kittle was disciplined only for doing personal things while on duty, and not for any inappropriate or illegal actions. Surprisingly, not only did the Ohio County Sheriffʼs Department not

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discipline Kittle for the act of hacking into the Plaintiffʼs email and exploiting her personal emails, they continued to put Deputy Kittle in front of school children for the purpose of teaching them internet safety. 35. Also in January of 2009, Deputy Kittle wrote a lengthy letter to Special

Prosecutor Haught, in which he admits to hacking into the Plaintiffʼs email account, stealing the emails, and then subsequently distributing the substance of the emails. Moreover, the letter in itself was yet another instance of Deputy Kittle distributing the substance of the hacked emails. The letter repeatedly reminds Haught that he is a fellow law enforcement officer. Kittle also states in the letter that he “[has] been 100% honest during this investigation and went to Tom Burgoyneʼs [sic] when he was still the Sheriff, to confide to him of my wrongdoings.” 35. On or about February 14, 2009, the Plaintiff was provided with a copy of

the hacked emails, which indicate that they were faxed to someone from the Ohio County Sheriffʼs Department on July 7, 2008. Plaintiff was also provided with copies of private journal entries which Deputy Kittle had obtained and distributed to other law enforcement officers, including Sgt. Adams. 36. Eventually Deputy Kittle was brought to trial on charges of computer

invasion of privacy and was found guilty. 37. Not only does Deputy Kittle remain employed by the Ohio County Sheriffʼs

Department, he was promoted. Deputy Kittle continues to harass the Plaintiff and her family while on duty. On or about April 21, 2010, at 1:30 p.m., Deputy Kittle appeared at the Plaintiffʼs fatherʼs home in Moundsville, Marshall County, West Virginia (outside his jurisdiction). He confronted the Plaintiffʼs stepmother at her home, while leaving his

Burke v. Ohio County Commission Civil Action No. 10-CPage 10

police cruiser running nearby, and informed her that, although he “fucked up,” he nevertheless “hates” the Plaintiff, and made other derogatory remarks towards the Plaintiff, which made the Plaintiffʼs stepmother feel extremely uncomfortable, upset, and fearful for her stepdaughter. The Plaintiffʼs stepmother filed a complaint with the Sheriff of Ohio County, but upon information and belief, again no disciplinary action has been taken to reign in Deputy Kittle and to protect the Plaintiff and her family. COUNT ONE - NEGLIGENCE 38. Plaintiff incorporates by reference all the allegations contained in the

previous paragraphs. 39. Defendant, as the employer of the Deputy Kittle, as well as other Ohio

County deputies and agents mentioned above, owed the Plaintiff a duty of reasonable care, and specifically assured the Plaintiff, on several instances, that Deputy Kittle would no longer be able to cause them harm. 40. Defendant, by and through agents and employees Sheriff Burgoyne, Chief

Deputy Pat Butler, and Deputy Goode, breached that duty by, among other things, engaging and enabling the following acts as more particularly described in the paragraphs above: a. Failing to stop Deputy Kittle from repeatedly and continuously using his employment as a police officer to invade the Plaintiffʼs privacy and to cause her humiliation, embarrassment and emotional distress, despite being put on notice of his actions and having supervisory responsibility over Deputy Kittle;

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b. c. d. e. f.

Failure to to stop, and further enabling, Deputy Kittle in his attempts to use his position as a police officer to further his custody battle against the Plaintiff; Failure to take reasonable and prudent disciplinary action against Deputy Kittle for violations of law against the Plaintiff, and others perpetrated while on duty, despite being put on notice of his his illegal and inappropriate actions and despite having supervisory responsibility over Deputy Kittle, which led to continued inappropriate, illegal and harassing actions by Deputy Kittle against the Plaintiff; Hiring Deputy Kittle with knowledge of his disciplinary history and record of abusing his position to further ulterior personal motives; Continuing Deputy Kittleʼs employment as a law enforcement officer, with knowledge of his abuse of his position as a deputy to harm the Plaintiff and her family, as well as Deputy Kittleʼs commission of several crimes, including perjury 1; Failure to properly train Deputy Kittle to not commit crimes, and to not use his position to invade the privacy of private citizens and to

1

During an August 11, 2008 Ohio County Family Court hearing, Deputy Kittle attempts to explain to the Judge, who placed him under oath and specifically asked him “where did you get the emails,” how he came into possession of the emails. Deputy Kittle testified that he did not hack into the Plaintiffʼs email account, but rather that he encountered her email account while conducting an official Myspace investigation, and that “it was open to the public your honor.” To the contrary however, in his January 23, 2009 letter to Special Prosecutor Timothy Haught, Deputy Kittle wrote the following: “Back in May of 2008 I did access my ex-wifeʼs (Susan Burke) Yahoo e-mail account. I know there is no excuse for this behavior and I am prepared for whatever consequence I may face for this action. He mentioned nothing about any official Myspace investigation. Nor did he claim that he merely accessed something open to the public.

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41.

g. h. i.

otherwise fail to comply with the adopted policies of the OCSD; Failure to properly supervise Deputy Kittle, and otherwise allowing him to abuse his employment as a police officer to cause harm to the Plaintiff and her family and to otherwise fail to comply with the adopted policies of the OCSD; Failure to properly supervise Deputy Goode, and otherwise allowing him to assist Deputy Kittle in depriving the Plaintiff of the lawful custody of her children; Negligently assisting and enabling Deputy Kittle, by Deputy Goode, in unlawfully depriving the Plaintiff of the lawful custody of her children.

The OCC is vicariously liable for the acts of itʼs deputies, agents, and

employees pursuant to the West Virginia Governmental Tort Claims and Insurance Reform Act, W. Va. Code § 29-12A-1, et seq. so long as they were acting in the scope of their authority. 42. At all times herein, Sheriff Burgoyne, Deputy Goode, and Chief Deputy

(and now-Sheriff) Pat Butler were acting within the scope of their authority. 43. These allegations do not pertain to the Defendantʼs formulation and

implementation of policy related to how the Ohio County Sheriffʼs Department is to provide police protection, but rather pertain to the negligent implementation of existing policy and proper police and governmental employment practices. 44. As a direct and proximate result of Defendantʼs negligence, the Plaintiff

suffered harm for which she is entitled to recover.

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COUNT TWO - WRIT OF MANDAMUS 45. Plaintiff incorporates by reference all allegations contained in the previous

paragraphs. 46. The OCC, owed a legal duty to the Plaintiff, and the public in general, to

properly follow all adopted policies and procedures of the Ohio County Sheriffʼs Department, as well as State and Federal law, including not employing a person as a police officer who uses his position to commit crimes against members of the public, or who has committed perjury. 47. Due to the Defendantʼs failure to follow the adopted polices and

procedures of the Ohio County Sheriffʼs Department, and their failure to abide by Federal and State law, and due to their knowing, intentional, and continued employment of a police officer who is a danger to the Plaintiff and to the public, and who has committed perjury, as detailed above, the Plaintiff, and the public in general, have suffered and will continue to suffer. 48. The Defendant has deliberately and knowingly refused to exercise their

clear legal duties as prescribed by the adopted policies and procedures of the Ohio County Sheriffʼs Department and State and Federal law, by continuing to employ Charles Kittle as a deputy, even after he: a. b. c. d. Committed a crime against an innocent member of the public; Repeatedly lied about having committed said crime; Committed perjury on August 11, 2008; Admitted to illegally running an NCIS background check on an innocent member of the public;

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49.

e. f.

Has a prior disciplinary history with the Martinsburg Police Department, including abuse of authority; Continues to use his position as a police officer to harass the Plaintiff and her family, such as the incident described in Paragraph 37 above.

Pursuant to West Virginia Code § 53-1-1, et seq., Plaintiff requests the

Court to enter an Order compelling the Defendant to properly take disciplinary action against Deputy Charles Kittle in such a way as to cease the employment of Charles Kittle as a Sheriffʼs deputy. COUNT THREE - ATTORNEY FEES 50. Plaintiff incorporates by reference all the allegations contained in the

previous paragraphs. 51. Due to the OCC deliberately and knowingly failing to comply with the

adopted policies and procedures of the Ohio County Sheriffʼs Department and State and Federal law, Plaintiff, and the public in general, suffer and continue to suffer. 52. Pursuant to West Virginia Code § 53-1-1, et seq., and the authority

granted the Court in State ex rel. West Virginia Highlands Conservancy v. State Div. of Envtl. Protection, 193 W. Va. 88, 458 S.E.2d 88 (1995), Plaintiff demands judgment of and from the Defendant, in the form of all attorney fees expended and accrued in prosecuting this civil action and writ of mandamus. PRAYER FOR RELIEF WHEREFORE, the Plaintiff respectfully requests the following from the Court:

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1.

Compensatory damages as this Court deems just in a fair and just amount

to be determined by a jury at trial; 2. General damages for past, present and future pain and suffering, mental

anguish, loss of enjoyment of life and emotional distress, in a fair and just amount to be determined by a jury at trial; 3. Judgment of and from the OCC in the form of an Order compelling the

Defendant to comply with the adopted policies and procedure of the Ohio County Sheriffʼs Department and State and Federal law and to institute proper disciplinary action against Deputy Charles Kittle in such a way as to cease his employment and authority as an Ohio County Deputy, now and in the future; 4. 5. 6. Pre-judgment and post-judgment interest; Costs and attorney fees expended in this civil action; Any other further general or specific relief that this Court deems just and

proper. PLAINTIFF DEMANDS A TRIAL BY JURY ON ALL ISSUES SUSAN BURKE By Counsel

John H. Bryan (WV Bar No. 10259) 611 Main Street P.O. Box 366 Union, WV 24983 jhb@johnbryanlaw.com (304) 772-4999 Fax: (304) 772-4999

Burke v. Ohio County Commission Civil Action No. 10-CPage 16

Thomas E. White (WV Bar No. 4022) 604 Sixth Street Moundsville, WV 26041 (304) 845-7008

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