Larry E. Thompson
Thornsbury & Thompson
Williamson, West Virginia
Attorney for the Appellee
William H. Duty
Assistant Prosecuting Attorney
Williamson, West Virginia
Attorney for the Appellant
CHIEF JUSTICE MILLER delivered the Opinion of the Court.
1. The Law Enforcement Training and Certification Act,
W. Va. Code, 30-29-1, et seq, requires law enforcement officers to
be certified by the Governor's Committee on Crime, Delinquency and
Correction as having met certain minimum qualifications as a
condition of employment by any West Virginia law enforcement
2. Under W. Va. Code, 30-29-5(f) (1983), the employment
of a law enforcement officer who fails to be certified must be
3. "A writ of mandamus will not issue unless three
elements coexist -- (1) a clear legal right in the petitioner to
the relief sought; (2) a legal duty on the part of respondent to do
the thing which the petitioner seeks to compel; and (3) the absence
of another adequate remedy." Syllabus Point 2, State ex rel.
Kucera v. City of Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969).
4. "'"The general rule is that where an administrative remedy is provided by statute or by rules and regulations having the force and effect of law, relief must be sought from the administrative body, and such remedy must be exhausted before the courts will act." Syl. Pt. 1, Daurelle v. Traders Federal Savings & Loan Association, 143 W. Va. 674, 104 S.E.2d 320 (1958).' Syl. Pt. 1, Cowie v. Roberts, [173 W. Va. 64], 312 S.E.2d 35 (1984)."
Syllabus Point 1, Hechler v. Casey, ___ W. Va. ___, 333 S.E.2d 799
5. W. Va. Code, 30-29-5(i) (1983), permits a law
enforcement officer or an applicant to challenge decisions of the
Governor's Committee on Crime, Delinquency and Correction with
regard to law enforcement certification according to the provisions
of the state Administrative Procedures Act, W. Va. Code, 29A-5-1,
6. A license may be revoked for due cause at any time
in accordance with provisions in the licensing act or ordinance or
in the certificate of license. A license may also be revoked in
the exercise of the police power of the state, whether or not the
power to revoke is expressly or impliedly reserved in the licensing
statute or in the certificate of license.
7. Fraud or misrepresentation in a license application is a ground for revocation of the license.
This is an appeal from a final order of the Circuit Court
of Mingo County, dated July 23, 1990, which issued a writ of
mandamus to compel the respondent, Gerald L. Chafin, the Sheriff of
Mingo County, to reinstate the petitioner, Ronnie Mounts, to his
former position of deputy sheriff with full back pay. We conclude
that the petitioner was not entitled to the writ of mandamus, and
At issue in this appeal is the Law Enforcement Training and Certification Act (the Act), W. Va. Code, 30-29-1, et seq. This statute requires law enforcement officers to be certified by the Governor's Committee on Crime, Delinquency and Correction (Governor's Committee) as having met certain minimum qualifications as a condition of employment by any West Virginia law enforcement agency.See footnote 1 Generally, the Act provides for certification upon
completion of a prescribed training course; however, the Act also permits one employed as a police officer on its effective date, July 9, 1981, to obtain certification without such training upon a showing that he was employed as a law enforcement officer "for a period of not less than five consecutive years immediately preceding the date of application for certification."See footnote 2 W. Va. Code, 30-29-5(d) (1983). Under W. Va. Code, 30-29-5(f) (1983), a
law enforcement officer who "fails to be certified shall be
automatically terminated[.]"See footnote 3
The petitioner was hired as a deputy sheriff in Mingo County on July 1, 1981. Two months later, the petitioner filed an application with the Governor's Committee seeking certification without completion of a training program under the "grandfather" provisions of W. Va. Code, 30-29-5(d) (1981). At that time, the petitioner's prior law enforcement experience consisted of three years as a constable between 1973 and 1977. For reasons not germane to this case, the application was not processed until June of 1983,See footnote 4 when the Governor's Committee received a notarized employment statement from the Mingo County Sheriff's Department attesting that the petitioner had been employed as a deputy sheriff
continuously since July 1, 1975. On June 30, 1983, the petitioner
was certified as a West Virginia law enforcement officer under the
grandfather provisions of the Act.
In 1988, the Governor's Committee reviewed the
petitioner's application for certification, and, upon receipt of
updated employment records, discovered that the petitioner did not
have the necessary years of employment to be certified under W. Va.
Code, 30-29-5(d). By letter dated September 5, 1989, the
Governor's Committee advised the petitioner that his law
enforcement certification was void. The Governor's Committee
offered to make a slot available for the petitioner in the next
training program in January, 1990, to allow him to continue his
employment until the beginning of the program,See footnote 5 in which a slot
would be made available for him, in January 1990 and to recertify
him upon successful completion of the course. A copy of the letter
was forwarded to Sheriff Chafin.
The petitioner did not respond to this letter. On October 18, 1989, the Governor's Committee advised Sheriff Chafin that the petitioner had failed to accept the conditions of his continued employment and could no longer be employed as a law enforcement officer. By letter dated November 8, 1989, the sheriff
advised the petitioner that his employment would be terminated
effective November 15, 1989.
The petitioner subsequently requested a hearing before
the Deputy Sheriff Civil Service Commission of Mingo County
(Commission) to challenge his removal. At the close of the hearing
conducted on April 26, 1990, the two commissioners present
disagreed as to whether the petitioner should be reinstated.
On June 21, 1990, the petitioner instituted mandamus
proceedings in the Circuit Court of Mingo County to compel Sheriff
Chafin to reinstate him. After a hearing, the circuit court
granted the petition, primarily on the ground that the Governor's
Committee had no statutory authority to revoke the petitioner's law
Accord Halstead v. Dials, ___ W. Va. ___, 391 S.E.2d 385 (1990).
We do not believe that the petitioner has demonstrated
entitlement to the writ of mandamus under the standard enunciated
in Kucera. The petitioner chose to challenge the sheriff's
decision to fire him in proceedings before the local deputy
sheriffs civil service commission. W. Va. Code, 7-14-17(a) (1981),
provides that no deputy covered by civil service shall be dismissed
"except for just cause." Upon request, a deputy against whom
adverse action is taken is entitled to a hearing before the civil
service commission, at which the burden is on the sheriff to
justify the deputy's dismissal. W. Va. Code, 7-14-17(a). Either
party has a right to appeal to or to seek a writ of mandamus in the
circuit court to challenge the civil service commission's ruling.
W. Va. Code, 7-14-17(b).
Clearly, the sheriff met his burden of proof in the proceedings before the Commission. As we have already seen, W. Va. Code, 30-29-5(a), and W. Va. Code, 30-29-5(f), preclude any person who has not been properly certified from being employed as a law enforcement officer in this State. Once the Governor's Committee advised him that the petitioner was not properly certified, Sheriff Chafin not only had just cause to fire the petitioner; he was required to do so by law. To require the sheriff to reinstate the petitioner without such certification would violate the mandatory provisions of the Act. It is a well settled rule that "'[m]andamus
will not lie to compel the performance of an illegal or unlawful
act.' Point 2, syllabus, State ex rel. Damron v. Ferrell, 149
W. Va. 773 [143 S.E.2d 469 (1965)]." Syllabus Point 3, State ex
rel. County Court v. Arthur, 150 W. Va. 293, 145 S.E.2d 34 (1965).
See also State ex rel. Board of Educ. v. Casey, ___ W. Va. ___, 349
S.E.2d 436 (1986).
Nor does the circuit court have the power to determine
the correctness of the administrative decision to revoke the
petitioner's certification. The general rule with respect to the
role of courts in administrative proceedings was set out in
Syllabus Point 1 of Hechler v. Casey, ___ W. Va. ___, 333 S.E.2d
"'"The general rule is that where an administrative remedy is provided by statute or by rules and regulations having the force and effect of law, relief must be sought from the administrative body, and such remedy must be exhausted before the courts will act." Syl. Pt. 1, Daurelle v. Traders Federal Savings & Loan Association, 143 W. Va. 674, 104 S.E.2d 320 (1958).' Syl. Pt. 1, Cowie v. Roberts, [173 W. Va. 64], 312 S.E.2d 35 (1984)."
See also Bank of Wheeling v. Morris Plan Bank & Trust Co., 155 W. Va. 245, 183 S.E.2d 692 (1971). In State ex rel. Gooden v. Bonar, 155 W. Va. 202, 210, 183 S.E.2d 697, 702 (1971), we recognized the applicability of the rule in mandamus cases: "Mandamus is available only when all administrative remedies have been exchausted and when there is no other available adequate remedy."
(Citations omitted). Accord Capitol Bus. Equip., Inc. v. Gates,
155 W. Va. 260, 184 S.E.2d 125 (1971).
Here, if the petitioner had desired to challenge the
decision of the Governor's Committee to revoke his certification,
he should have done so by the procedures set out in the Act.
W. Va. Code, 30-29-5(i) (1983), permits an officer or applicant to
challenge decisions of the Governor's Committee with regard to law
enforcement certification according to the provisions of the state
Administrative Procedures Act (APA).See footnote 6 The APA provides for notice
and an opportunity to be heard in any contested case and for
judicial review of the agency's decision. W. Va. Code, 29A-5-1, et
The designation in the Act of the APA as the proper
method of contesting the decisions of the Governor's Committee
represents a clear legislative determination that these procedures
are to be the exclusive means of contesting the actions of the
Governor's Committee. See 53 C.J.S. Licenses § 54 (1987). The
Governor's Committee, the body charged by law with responsibility
for certifying law enforcement officers, has the administrative
expertise to apply the provisions of the Act and of its own rules
and regulations to any facts that might be developed.
The evidence adduced below shows that the petitioner asked the Governor's Committee to afford him a hearing under the APA by letter dated November 10, 1989. It does not appear, however, that any hearing took place as a result of this request. The petitioner offered no explanation for the lack of further proceedings before the Governor's Committee. Because the petitioner makes no claim of negligence or undue delay on the part of the Governor's Committee and offers no explanation for the lack of further proceedings, we must conclude that he chose not to pursue his remedies under the APA.
Under these circumstances, we must conclude that the
petitioner failed to exhaust his administrative remedies before
seeking relief in mandamus before the circuit court. Consequently,
the circuit court was not empowered to review the decision of the
Governor's Committee to rescind the petitioner's law enforcement
certification. Because we have already concluded that Sheriff
Chafin demonstrated just cause for discharging the petitioner by
showing that the petitioner's law enforcement certification had
been revoked, there would appear to be no basis for the issuance of
a writ of mandamus in this case.
We have recognized, however, that "[t]here are exceptions to this general rule of exhaustion of administrative remedies such as lack of agency jurisdiction or the constitutionality of the
underlying agency statute."See footnote 7 State ex rel. Arnold v. Egnor, 166
W. Va. 411, 421, 275 S.E.2d 15, 22 (1981). (Citations omitted).
Thus, where an agency clearly has no jurisdiction or has exceeded
its statutory authority, and the issue may be resolved purely as a
question of law, without the necessity of resolving disputed facts,
a party may not be required to exhaust his administrative remedies
before invoking the power of the courts. 4 K. Davis,
Administrative Law Treatise §§ 26:1, 26:4 (2d ed. 1983); 2 Am. Jur.
2d Administrative Law § 604 (1962); 73 C.J.S. Public Administrative
Law & Procedure § 41 (1983).
The circuit court here based its ruling partly on its
conclusion that the Governor's Committee did not have the statutory
authority to revoke the petitioner's law enforcement certification.
To the extent that this issue is reviewable as a matter of law, we
will consider it.
The petitioner notes that these are the only grounds for revocation
or nonrenewal specified in the Act and argues that once an officer
has been certified, he cannot subsequently lose his certification
for any other reason. Implicit in this argument is the assumption
that once acquired, by whatever means, the certification is
irrevocable except upon those grounds specified in the Act.
We have no case nor can we find one in another
jurisdiction which discusses this question in the context of law
enforcement certification. However, in State ex rel. Morris v.
West Virginia Racing Commission, 133 W. Va. 179, 194, 55 S.E.2d
263, 271 (1949), we recognized, in a different context,See footnote 9 the
general rule that a board or agency with the power to license an
activity or occupation has inherent power to revoke such license
for good cause:
"'A license may be revoked for due
cause at any time in accordance with
provisions in the licensing act or ordinance
or in the certificate of license. A license
may also be revoked in the exercise of the
police power of the state, whether or not the
power to revoke is expressly or impliedly
reserved in the licensing statute or in the
certificate of license.'" Quoting 53 C.J.S.
See also 51 Am. Jur. 2d Licenses & Permits § 58 (1970). It also
appears to be widely accepted that fraud or misrepresentation in a
license application is a ground for revocation of the license. See
generally 51 Am. Jur. 2d Licenses & Permits § 58 (1970); 53 C.J.S.
Licenses § 52 (1987); Annot., 165 A.L.R. 1138 (1946). See also
North v. West Virginia Bd. of Regents, ___ W. Va. ___, 332 S.E.2d
141 (1985), cert. denied, 475 U.S. 1020, 89 L. Ed. 2d 320, 106 S.
Ct. 1207 (1986).
In other jurisdictions, it has been held that where a statute enumerates the grounds upon which a license may be revoked, revocation cannot be had on any ground not expressly listed in the statute. See Bach v. Florida State Bd. of Dentistry, 378 So. 2d 34 (Fla. App. 1979); Middleton v. Kavenedas, 298 Ky. 296, 182 S.W.2d 896 (1944); Burley v. City of Annapolis, 182 Md. 307, 34 A.2d 603 (1943); Roberts v. State Bd. of Embalmers & Funeral Directors, 78 N.M. 536, 434 P.2d 61 (1967). It has also been recognized by a majority of jurisdictions, however, that there is always implied power to revoke a license that was improperly issued. See generally 53 C.J.S. Licenses § 52 (1987); Annot., 165 A.L.R. 1138
(1946). In Schireson v. Shafer, 354 Pa. 458, 461-62, 47 A.2d 665,
667, 165 A.L.R. 1133, 1137 (1946), for example, a physician
challenged the authority of the licensing board to revoke his
license to practice medicine on the ground of fraud or
misrepresentation in the procurement of the license where the
statute did not list such an occurrence as a ground for revocation:
"While it is true that such legislation is penal in nature and must therefore be strictly construed . . . , it is also the general rule that where the license should never have been granted for reasons such as fraud or forgery, the licensing authority has the inherent power to revoke it: . . . , 'The power of the state to require a license implies the power to revoke a license which has been improperly issued': Butcher et al. v. Maybury, 8 Fed. (2d) 155, 159 [(D.C. 1925)]. See also Vanaman v. Adams, 74 N.J.L. 125, 65 Atl. 204 [(1906)]; Martin v. Morris, 62 N.D. 381, 243 N.W. 747 [(1932)]; Volp v. Saylor et al., 42 Ore. 546, 71 Pac. 980 [(1903)]." (Emphasis in original; citations omitted).
See also Kudla v. Modde, 537 F. Supp. 87 (E.D. Mich. 1982), aff'd,
711 F.2d 1057 (6th Cir. 1983); Arroyo v. Moss, 56 N.Y.S.2d 29 (Sup.
Ct.), aff'd, 269 App. Div. 824, 56 N.Y.S.2d 17 (1945), aff'd, 295
N.Y. 754, 65 N.E.2d 570 (1946); Williams v. Dickey, 204 Okla. 629,
232 P.2d 637 (1951); Jacoby v. South Carolina State Bd. of
Naturopathic Examiners, 219 S.C. 66, 64 S.E.2d 138 (1951). See
generally Annot., 165 A.L.R. 1138 (1946).
Of particular interest to us is In re Berman, 245 N.C. 612, 97 S.E.2d 232 (1957), where the Supreme Court of North Carolina upheld the revocation of an optician's license on the
ground that the licensee had falsely represented that he had been
in practice for a sufficient number of years to entitle him to
obtain a license without submitting to an examination. The court
noted that while fraud or misrepresentation was not one of the
grounds for revocation set forth in the licensing statute, "the
Board has inherent power, independent of statutory authority, to
revoke a license it improperly issued by reason of material fraud
or misrepresentation in its procurement." 245 N.C. at 616, 97
S.E.2d at 235. (Citations omitted).
But for the particular profession involved, the facts of this case are virtually identical to those of Berman. It is not disputed that the petitioner here obtained his original certification based on false representations that he had five consecutive years of law enforcement experience immediately prior to his application for certification. It is also undisputed that if the Governor's Committee had known the truth, it would not have issued the certification until the petitioner had completed the required training program. Upon these facts, we see no reason to reach a result different from that in Berman or the other cases cited above. The fact that the Act does not specifically enumerate fraud or misrepresentation in the procurement of a law enforcement certification as a ground for revocation does not preclude the
Governor's Committee from revoking an improperly issued
certification.See footnote 10
Moreover, we note that pursuant to W. Va. Code, 30-29-3(f) and (h) (1982), the Governor's Committee is charged with promulgating "standards governing the qualification of law-enforcement officers" and with certifying law enforcement officers.See footnote 11 In furtherance of these obligations, the Governor's
Committee has promulgated § 149-2-16.1.3 of the West Virginia Code of State Regulations, which states that the Governor's Committee may suspend, revoke, or deny certification to any law enforcement officer "[w]ho was found to have supplied or acquiesced in [supplying] false information . . . to the [Governor's]
Committee[.]"See footnote 12 This provision clearly authorized the Governor's
Committee to revoke the petitioner's law enforcement certification.
For these reasons, we must conclude that the Governor's Committee had the authority to revoke the petitioner's law enforcement certification upon a finding that he procured it through fraud or misrepresentation. The circuit court erred in granting the writ of mandamus on the ground that such authority was lacking. The court was precluded from considering any other issues
raised as to the certification revocation by the doctrine of
exhaustion of administrative remedies.See footnote 13
Reversed and remanded.
"Except as provided in subsections (b)
and (g) below, no person may be employed as a
law-enforcement officer by any West Virginia
law-enforcement agency on or after the
effective date [July 9, 1981] of this article
unless the person is certified, or is
certifiable in one of the manners specified
in subsections (c) through (e) below, by the
governor's committee as having met the
minimum entry level law-enforcement
qualification and training program
requirements promulgated pursuant to this
W. Va. Code, 30-29-1 (1984), defines a "West Virginia law-enforcement agency" as "any duly authorized state, county or municipal organization employing one or more persons whose responsibility is the enforcement of laws of the state or any county or municipality thereof."
"Any person who is employed as a
law-enforcement officer on the effective date
[July 9, 1981] of this article and is not a
graduate of the West Virginia basic police
training course, the West Virginia department
of public safety cadet training program, or
other approved law-enforcement training
academy, is certifiable as having met the
minimum entry level law-enforcement training
program requirements and is exempt from the
requirement of attending a law-enforcement
training academy if the person has been
employed as a law-enforcement officer for a
period of not less than five consecutive
years immediately preceding the date of
application for certification."
"Any person who is employed as a
law-enforcement officer on or after the
effective date [July 9, 1981] of this article
and fails to be certified shall be
automatically terminated and no further
emoluments shall be paid to such officer by
his employer. Any person terminated shall be
entitled to reapply, as a private citizen, to
the subcommittee for training and
certification, and upon being certified may
again be employed as a law-enforcement
officer in this state."
"Certification of each West
Virginia law-enforcement officer shall be
reviewed annually following the first
certification and until such time as the
officer may achieve exempt rank.
Certification may be revoked or not renewed
if any law-enforcement officer fails to
attend annually an in-service approved law-enforcement training program, or if a law-enforcement officer achieving exempt rank
fails to attend biennially an approved in-service supervisory level training program."
"Upon recommendation of the
subcommittee, the governor's committee shall,
by or pursuant to rule or regulation:
* * *
"(f) Promulgate standards governing
the qualification of law-enforcement officers
and the entry level law-enforcement training
curricula. . . .
* * *
"(h) Certify law-enforcement
officers, as provided in section five [§ 30-29-5] of this article[.]"
"16.1. The Governor's Committee on
Crime, Delinquency and Correction, upon the
recommendation of the Law Enforcement
Training Subcommittee, may suspend, revoke,
or deny certification of a law enforcement
"16.1.1 Who was convicted by any
state or by the federal government of any
crime the punishment for which could have
been imprisonment in a federal or state
prison or institution;
"16.1.2 Who was convicted of or
pleaded guilty to or entered a plea of nolo
contendere to any felony charge or to any
violation of any federal or state laws or
city ordinances, or to a sufficient number of
misdemeanors to establish a pattern of
disregard for the law;
"16.1.3 Who was found to have
supplied or acquiesced in false information
being supplied to the Committee, Subcommittee
or hiring authority; or
"16.1.4 Who fail to participate in
mandated in-service training required for