Thomas indicted on embezzlement charge

WHEELING — Belmont County Commissioner Mark A. Thomas is facing a criminal charge in West Virginia for allegedly misappropriating $36,000 from the estate of a deceased client of his private law practice.

An Ohio County grand jury indicted Thomas on a charge of embezzlement by fiduciary after West Virginia State Police troopers conducted an investigation and presented their findings on Jan. 8. According to the indictment, the alleged embezzlement involved the estate of Dolores Anast, and the offense reportedly occurred in October 2014. The complaint was made by Joanna Gusta, executrix of the estate.

Thomas said in an email Tuesday, “I have not even seen the charges, so on the advice of counsel, I cannot comment.”

Also on Tuesday, however, Thomas’ attorney, Paul Harris, did file a motion to dismiss the indictment. The document argues Thomas should have been charged with a misdemeanor, not a felony, under West Virginia code, and that the indictment contained language inconsistent with the statute under which he was charged.

The motion argues the facts alleged in the indictment fit a section of code that provides for civil collection of damages and a misdemeanor charge that carries a fine of $20 to $500.

“…(W)here the West Virginia Legislature has set forth a specific statutory penalty for a member of a group, such as lawyers, the legislature’s will must be respected and should not be ignored by the judicial branch,” the motion states.

The motion also argues a judge should dismiss the indictment because it uses the word “and” where the statute contains the word “or.”

“In essence, Mr. Thomas was improperly charged with three crimes, not one, under the indictment, which is prohibited,” it states.

Tyler County Prosecutor D. Luke Furbee has been appointed special prosecutor in the case. Ohio County Prosecutor Scott Smith said he has known Thomas for “a long time,” so he thought it would be best to step aside in favor of a special prosecutor to avoid any appearance of impropriety.

Smith said Thomas will have a hearing before Ohio County Circuit Judge James Mazzone at 10 a.m. Thursday.

Furbee released the following statement Tuesday:

“I was appointed special prosecuting attorney for Ohio County in September 2016 to deal with a complaint made to the West Virginia State Police regarding Mr. Mark Thomas. From that time to the present, I have supervised an investigation of the complaint. Consequently, an indictment has been returned by the Ohio County grand jury on Jan. 8, 2018 charging Mr. Thomas with one felony count of embezzlement by a fiduciary.

“Respectfully, an indictment is only an accusation. Mr. Thomas is presumed innocent of the charge and that will not change unless he is later determined to be guilty in an appropriate court proceeding,” Furbee continued. “He is entitled to a fair hearing and a prosecution that is not interested in grandstanding. Likewise, the state of West Virginia and its citizens residing in Ohio County are entitled to a vigorous prosecution seeking justice in a court of law concerning the charge lodged by the grand jury. To the best of my skill and judgment, that will be the kind of prosecution I will conduct. Therefore, absent some extraordinary circumstance, I will have no further public comment on the matter until it is concluded.”

Thomas serves as a Belmont County commissioner and has operated a private law practice in St. Clairsville. According to officials at the Ohio Board of Professional Conduct in Columbus, Thomas’ law license was suspended indefinitely in Ohio in 2015 after he reportedly failed to file an answer to a formal complaint pending before the board.

On Tuesday, officials explained that when a law license is indefinitely suspended, an attorney has to wait two years to file for reinstatement in Ohio. To date, officials said Thomas’ license remains suspended in both Ohio and West Virginia.

Casey Junkins and Ian Hicks contributed to this report.