Eastern Shore fisherman raises questions that marine police committed perjury

Edward Bender, an almost legendary Eastern Shore commercial fisherman, in a letter to the commissioner of the Virginia Marine Resources Commission has threatened to go to court to obtain testimony the agency is withholding from him in which he believes a marine patrol official committed perjury.

He made the charges in a request for a formal hearing before the VMRC which he said he is entitled to under the law and by denying him the testimony of a previous meeting and failing to permit him the hearing as required under Chapter 28 of the Code of Virginia, Bender said Commissioner William A. Pruitt is acting unlawfully.

A friend of Bender's, in an application for shellfish planting ground, assigned Bender a 50% interest and asked him to speak on behalf of the applicant.  Bender did and the VMRC alleged that in so doing he was practicing law, an illegal act for a non-lawyer.  The VMRC proceeded to get the Virginia State Bar to seek to prosecute him for the illegal practice of law.

Bender, on the other hand, claims that because of his interest in the applicant's case and his assigned interest, he had every right under the Constitution to speak in a public forum.

The commission and a representative for the Virginia Attorney General's office also contest whether the applicant could 'give' Bender any interest in the application.  Therefore, they claim he had no standing before the hearing.

In his 3rd demand for a formal hearing before the VMRC, Bender wrote Pruitt. citing the applicable code, " 28.2-216. "Hearings before Commission. A. Any person whose rights, duties, or privileges, including matters relating ... shellfish planting grounds, ... have been or may be affected by any action or inaction of the Commission or Commissioner without a formal hearing may demand in writing a formal hearing of his complaint. The Commission shall hold a hearing on the complaint as soon as practicable...

" 28.2-906. "Failure to perform duty; penalty. The failure of any officer or other person to perform any duty required of him by any provision of this subtitle is a Class 1 misdemeanor." 

"I believe that every citizen has the right to both complain and prosecute the unlawful and criminal acts of our State government and it's agencies. Criminal acts by government officers are not safeguarded and cloaked by sovereign immunity."

Bender who has resorted to studying the law out of self-preservation against under-educated and over zealous bureaucrats for more than 30 years, even going so far as to buy his own set of the state code and other fisheries oriented law books, concluded by warning Pruitt:

"I've been a nice fellow about this incident and I've exercised a great deal of patience towards an administrative adjudication. My patience is exhausted, either do your duty are take in sail because you and I are headed towards some heavy weather."

His full unedited letter to Pruitt follows:  


28.2-906.3rd. REQUEST FOR FORMAL HEARING
PURSUANT TO 28.2-216.
February 4,2003
Commissioner, William A. Pruitt                                     
2600 Washington Avenue                                        
3rd Floor                                                    
Newport News,VA 23607

Re: Commissioner's letter of response to Edward H. Bender's        
demand for Formal Hearing and other requests.
   
Dear Commissioner Pruitt:
   I have in hand your letter dated January 24, 2003 and it
seems me that you are knowingly and willfully refusing to do your
duty as required by Chapter 28 of the Virginia Code. So that
there is no misunderstanding the reasons regarding my demands and
requests I will address the issues as follows:
   
   1. First I will address your statement as received regarding
my standing in this matter. "...since the Commission decision was
on an application filed by Mr. Smith, the relief provided by
28.2-216 is not available to you. You have no standing to make
such request because the Commission's decision on the Smith
application did not affect your rights, duties or privileges."
   I have received a letter and documents from the Virginia
State Bar informing me that I am under investigation for the
unauthorized practice of law before the Commission on September
24, 2003. This investigation is subsequent to your letter of
complaint to the Office of the Attorney General and the AG's
letter to the State Bar. In that I now address my standing in
this matter and my standing is pertinent to the Bar investigation
as to the unauthorized practice of law I will send the Bar a
copy of this letter. My standing:
   (a) I attended the September 24, 2002 Formal Hearing before
the Commission as interested party and noted proponent to David
Smith's application for planting ground. Mr. Smith had asked me
If I could speak for him before the Commission and I informed
him that I could not do so. I did tell Mr. Smith that I could
appear on my own behalf as a proponent to his application
pursuant to 28.2-216 and I did so. You as the Commissioner
complain that I acted as an attorney for Mr. Smith. That's not
so, I made a written statement as a proponent for Smith's
application and the statement was entitled as such. You and
Mr. Josephson allege that I could not make legal statements or
opinions as a proponent without representing Smith. Wrong again,
you and Josephson must realize by now that neither you, your
agent, or the Commission had the jurisdiction to deny Smith's
application. In fact it was the Commissions duty at the time of
the hearing to select a surveyor to survey the ground and make a
plat in duplicate to be forwarded to the Commissioner. If you
and the Assistant Attorney General take offense at some poor
fisherman pointing out the fact that the Commissioner and
the Commission staff or acting beyond the scope of their
authority. That the Commissioner and staff are unlawfully denying
some poor fisherman his lawful application for planting ground .
Then Mr.Pruitt I suggest that you and your agents not perform
unlawful and criminal acts and you wont be hearing any citizen
complain and point to your indifference to the law. Every citizen
has the right to complain about the unlawful acts and crimes of a
State Agency or government office. Please tell me in your great
and infinite wisdom how a citizen can complain about unlawful and
criminal acts without stating the law and how it was broken?

   (b) Mr. Smith paid $125.00 for application fees and publi-
cation of his application in the local newspaper. Mr.Smith has
both an equitable and monetary interest in his filed application
for planting ground. Prior to the Formal Hearing on September 24,
2002. Mr. Smith gave me 1/2 of his interest in his filed
application and verified this agreement in writing. Now you and
the Assistant General seem to have some doubts as to whether this
took place or not. I suggest you and the AAG talk to Mr. Smith
and verify his position and the truth in this matter. The AAG
further concludes that Smith does not have the right to give
interests in his application for assignment of Va oyster planting
ground to qualified Virginia citizens. Wrong again, have your
legal counsel show you code section where the interests in a
lawful application for planting ground cannot be shared. The AAG,
Mr. Josephson reminds me of a weatherman, his assessments of law
are not unlike a weatherman's assessments of weather. They are
not always correct. Mr. Josephson's conclusion that Smith can't
give me an interest in planting ground that has not been assigned
is correct, the decision to assign the planting ground lies
within the sound desecration of the Commissioner after the
application has met all applicable provisions of law. Even though I have a
1/2 interest in the application the Commissioner is not obligated
to assign 1/2 of the ground to me. The point is that until this
application becomes ripe for assignment, I have a 1/2 interest
and can exercise any lawful means to protect that interest from
the unlawful and criminal acts of the Commission, the Commi-
ssioner, Commission staff and the Office of the Attorney General.

   (c) In conclusion of my standing in this matter I would
remind you Mr. Pruitt that you are the chief executive officer of
the Commission. You are not the Commission. This is the third
time that I have demanded a formal hearing before the Commission
and you have taken upon yourself to deny this demand. I have
asked for this hearing upon the inaction of you as Commissioner
to honor my demands. You go beyond your jurisdiction and fail to
do your duty. I will bring to your attention the following
excerpts from statute:
28.2-104. "Commissioner; general powers and duties. The Commissioner shall: 1. Enforce
the marine fishery and habitat laws and regulations;  2. Serve as chief executive officer of the
Commission and devote full time to the duties of the office;..."
28.2-216. "Hearings before Commission. A. Any person whose rights, duties, or privileges,
including matters relating ... shellfish planting grounds, ... have been or may be affected by
any action or inaction of the Commission or Commissioner without a formal hearing may
demand in writing a formal hearing of his complaint. The Commission shall hold a hearing
on the complaint as soon as practicable..."
28.2-906. "Failure to perform duty; penalty. The failure of any officer or other person to
perform any duty required of him by any provision of this subtitle is a Class 1 misdemeanor."
   I believe that every citizen has the right to both complain
and prosecute the unlawful and criminal acts of our State
government and it's agencies. Criminal acts by government
officers are not safeguarded and cloaked by sovereign immunity.
Again I suggest that you read "Ex Parte Young". My standing in
this case is not one of " the unauthorized practice of law", but
rather one of a citizens right to expose and complain against the
unlawful and criminal acts of a state agency.
   I fully intend to file a complaint in this case with the
State Bar against the Office of the Attorney General for
willfully and knowingly aiding and abetting the unlawful and
criminal acts committed by a state agency.
   2. Secondly we come to the last paragraph of your letter. You
state:
   " Finally, the Commission is not going to grant a formal
hearing on a matter that has already been decided solely on the
basis of unsubstantiated charges of perjury."
   
   Mr. Commissioner I would bring attention again to the fact
that you are merely the chief executive officer of the
Commission.
You are not the Commission. You do not have the authority to
voice the Commissions issuance or non-issuance of grants or
decisions until the matter has been formally been placed before
at least 5 members that represent a quorum of the Commission and
their pleasure has been voiced in the matter.

   As you may recall I asked you to substantiate the charges of
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suspected perjury by Captain Randy Widgeon in his sworn testimony
before the Commission on September 24, 2002. I have never charged
Captain Widgeon with perjury. What I have said is that I have
searched the case diposisitions in the records of the General
District Courts for both Accomac and Northampton Counties. I
searched both the active and inactive records in these courts and
could not find substantiation of Captain Widgeon's sworn
testimony. Again I say that this is not proof of perjury. However
the Commission's reluctance to provide the records that
substantiates Capt. Widgeons sworn testimony does little to allay
my suspicions of perjury. This is a very serious charge, however
if perjured testimony was used to deny a poor fisherman his right
to acquire planting ground necessary to his livelihood, then I
think then, that Capt. Widgeon should be tried before some judge
that has similar feelings towards law and order as the infamous
old judge "Roy Bean". I demand a formal hearing before the
Commission in this case and I still request that you issue a
subpoena duces tecum for the records used in support of Capt.
Widgeon's sworn testimony.
   In conclusion of this issue I wish to make written complaint
against the alleged misconduct of Capt. Widgeon and ask for an
investigation and report as to the dispossession of the case
under the following provisions of law:
9.1-600. Civilian protection in cases of police misconduct; minimum standards. A. State,
local, and other public law-enforcement agencies, which have ten or more law-enforcement
officers, shall have procedures as established in subsection B, allowing citizen submission of
complaints regarding the conduct of the law-enforcement agency, law-enforcement officers in
the agency, or employees of the agency. B. Law-enforcement agencies shall ensure, at a
minimum, that in the case of all written complaints: 1. The general public has access to the
required forms and information concerning the submission of complaints; 2. The
law-enforcement agency assists individuals in filing complaints; and  3. Adequate records are
maintained of the nature and disposition of such cases.
   Commissioner as chief executive officer of the Commission
who's duty it is to enforce the marine fishery laws. I demand
that you enforce the marine fishery laws in this case. Did a law
enforcement officer under your jurisdiction fabricate fishery
violations in the attempt to deny a fisherman of his lawful right
to exercise and enjoy the provisions of marine fishery laws
necessary for his occupation as a commercial fisherman? Did this
law enforcement officer perjure himself before the Commission's
formal hearing on September 24,2002? Well as the Chief executive
officer of the VMRC who's duty encompasses the enforcement of
marine fisheries laws, you find out.
   Don't tell me on the one hand "...the Commission is not going
to grant a formal hearing on a matter that solely on the basis of
unsubstantiated charges of perjury." and on the other hand deny
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me a copy of the transcript of hearing and refuse to produce
copies of criminal process that would exonerate your police
officer from charges of perjury.
   This matter has gotten blown out proportion by the failure of
the Commission to correct a simple wrong. You have turned a mole
hill into a mountain. It seems to me that the Commission observes
themselves as a fiefdom rather than a public agency dedicated to
the citizens welfare.
   Bill you have known me for a long time, and I have never had
any real problems with your duties as Commissioner. But this time
its different. As I said, you know me. I am advising you of my
intention in this matter and if you think that I am not serious
in this matter, just try me. I don't make threats, just promises.
   This is a promise. If you fail to do your duty in this
ongoing incident, then I intend to go across the street from your
office and file a petition in the Newport News Circuit Court
asking for a rule to show cause as to why you should not be
removed from office for malfeasance, misfeasance, nonfeasance in
office and the crime failure to do your duty.
   I've been a nice fellow about this incident and I've
exercised a great deal of patience towards an administrative
adjudication. My patience is exhausted, either do your duty are
take in sail because you and I are headed towards some heavy
weather.
   I thank you for your kind attention to this matter.
                                       Sincerely,
                                                      Edward H. Bender

cc:              
Honorable Governor for the Commonwealth of VA                 
Mark R. Warner
Secretary of Natural Resources                                   
W. Tayloe Murphy, Jr.
Ethics Counsel                                                
Mr. James M. McCauley

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