Frederick G. Staker III
Assistant City Attorney
City of Huntington
Huntington, West Virginia
Counsel for Appellants
John F. Cyrus
Huntington, West Virginia
Counsel for Appellee
JUSTICE WORKMAN delivered the Opinion of the Court.
West Virginia Code § 8-14A-3 (1990), by its express
provisions, does not require that an internal hearing be conducted
prior to discharge, suspension, or reduction in rank or pay if the
punitive action has already been taken. Principles of due process,
however, dictate that a police officer subject to civil service
protection must be afforded a predisciplinary proceeding prior to
discharge, suspension, or reduction in rank or pay notwithstanding
the provisions of West Virginia Code § 8-14A-3 unless exigent
circumstances preclude such a predisciplinary hearing.
Through certified questions, this case presents issues of
statutory construction and due process arising from the
disciplinary reduction in rank and pay of a police officer.
Appellants, the City of Huntington and Robert R. Nelson, as mayor
of the city (hereinafter sometimes referred to collectively as
either the City, the Mayor, or Mayor Nelson), raise the following
(1) Whether, under chapter 8, article 14A,
Section 3 of the West Virginia Code as
amended, a police officer is entitled to an
internal hearing before being discharged,
removed, terminated, suspended or reduced in
rank or pay?
(2) Whether due process requires that a police officer be afforded a pre-disciplinary hearingSee footnote 1 prior to any punitive action being taken by the officer in charge?
The Circuit Court of Cabell County responded to each of these certified questions by ruling in the affirmative. With regard to the first certified question, we determine that West Virginia Code § 8-14A-3 (1990), by its express provisions, does not require that an internal hearing be conducted prior to discharge, suspension, or reduction in rank or pay if the punitive action has already been taken. Principles of due process, however, dictate that we respond to the second certified question by ruling that a predisciplinary proceeding is required prior to any discharge, suspension, or reduction in rank or pay absent exigent circumstances.
On August 24, 1990, without the benefit of any hearing, appellee Darrell Black (hereinafter referred to as Sergeant Black) was summarily demoted in rank and pay and placed on probation. The Mayor's decision to discipline Sergeant Black was based on an alleged racial remark purportedly made by Sergeant Black while on duty sometime in October 1989. Mayor Nelson was first apprised of the alleged racial slur in August of 1990 when, following a cross burning in the residential yard of Francia Ferguson, Mrs. Ferguson's daughter accused Sergeant Black of having uttered a racist remark ten months earlier.
In response to the daughter's accusations, Mayor Nelson
requested an internal investigation on August 10, 1990. The Mayor
subsequently took matters into his own hands by interviewing Mrs.
Ferguson and her daughter on August 21, 1990. Two days later,
Mayor Nelson summoned the police chief and Sergeant Black to his
office. When these individuals arrived, Mayor Nelson stated
summarily that Sergeant Black was guilty of making the alleged
racial statement and gave him the option of retiring, taking a
reduction in rank, or termination. Sergeant Black was not provided
with the opportunity to respond to the charges against him nor was
he given any information concerning the evidence compiled by Mayor
On August 24, 1990, Mayor Nelson held a press conference during which he announced the disciplinary actions taken against
Sergeant Black. Only after this public announcement did Sergeant
Black receive the requisite written notice of the charges against
him and the punitive action taken.See footnote 2 The written notice took the
form of a letter from Mayor Nelson which was delivered to Sergeant
Black on the afternoon of August 24, 1990. The disciplinary action
taken against Sergeant Black included a demotion from sergeant to
officer first class and a pay cut that resulted in Sergeant Black's
annual salary being reduced from $22,500 to $20,800.
Sergeant Black appealed Mayor Nelson's actions to the Police Civil Service Commission ("Commission") for the City of Huntington, West Virginia. The Commission held a hearing in connection with the appeal on May 14, 1991. At the start of the hearing, counsel for Sergeant Black made a motion to dismiss the charges and to reinstate Sergeant Black to his former rank with back pay. As support for this motion, appellee's counsel argued that Mayor Nelson had reduced Sergeant Black's rank and pay without providing adequate notice or affording a hearing before an internal hearing board on the issues giving rise to the punitive action and that these failures constituted violations of West Virginia Code § 8-14A-3 and both the state and federal constitutions. The Commission
took Sergeant Black's motion for dismissal and reinstatement under
advisement and the matter proceeded to a hearing on the merits.
Following the close of the City's case, the Commission recessed the
hearing and continued it generally. On August 21, 1991, the
Commission entered an order granting Sergeant Black's motion for
dismissal and reinstatement, ruling that appellee was entitled to
notice and a hearing prior to being reduced in rank and pay. It is
from that order that the appellants now appeal.
Appellants take the position that West Virginia Code § 8-14A-3
does not require an internal hearing prior to a reduction in rank
and pay. That statute provides, in pertinent part, as follows:
(a) If the investigation or interrogation of
a police officer or fireman results in the
recommendation of some punitive action, then,
before taking such action the police or fire
department shall give notice to the police officer
or fireman that he is entitled to a hearing on the
issues by a hearing board. The notice shall state
the time and place of the hearing and the issues
involved and be delivered to the police officer or
fireman no later than ten days prior to the
hearing. An official record, including testimony
and exhibits, shall be kept of the hearing.
(b) The hearing shall be conducted by the hearing board of the police or fire department except that in the event the recommended punitive action is discharge, suspension or reduction in rank or pay, and such action has been taken the hearing shall be pursuant to the provisions of article fourteen, section twenty [§ 8-14-20], and article fifteen, section twenty-five [§ 8-15-25] of this chapter, if applicable. Both the police or fire department and the police officer or fireman shall be given ample opportunity to present evidence and argument with respect to the issues involved.
W. Va. Code § 8-14A-3.
Appellants interpret West Virginia Code § 8-14A-3 to require a hearing before an internal hearing board only when the contemplated disciplinary action does not involve discharge, suspension, or reduction in rank and pay. Their position is that only one as opposed to two hearings are contemplated by West Virginia Code § 8-14A-3, since the introductory language of subsection (b) begins "[t]he hearing." Appellants further maintain that an internal hearing is bypassed in the event of discharge, suspension, or reduction in rank and pay when the sanction has already been taken, as in this case, because "[t]he hearing" contemplated is a public hearing before the Commission pursuant to West Virginia 8-14-20See footnote 3 rather than an internal hearing before a policemen's hearing board.See footnote 4
An examination of subsection (b) of West Virginia Code § 8-14A-3 leaves no doubt in this Court's mind that the Legislature intended that certain types of punitive action such as discharge, suspension, or reduction in rank or pay could be effectuated without first conducting an internal hearing before the police
officer's hearing board. The use of the words "and such action has
been taken" with reference to the punitive acts of discharge,
suspension, or reduction in rank and pay is clearly conjunctive in
meaning. W. Va. Code § 8-14A-3(b). The Legislature fully
contemplated that certain punitive acts might be taken prior to
holding an internal hearing. This is why the language of West
Virginia Code § 8-14A-3(b) provides that where the course of
punitive action chosen is discharge, suspension, or reduction in
rank or pay "and such action has been taken[,] the hearing shall be
pursuant to" West Virginia Code §§ 8-14-20 and 8-15-25. The type
of hearing provided for by subsections twenty and twenty-five is a
public hearing before the Commission and not one before an internal
hearing board. Accordingly, we read West Virginia Code § 8-14A-3
as providing that an internal hearing before the hearing board of
the police department is not required prior to discharge,
suspension, or reduction in rank or pay if the punitive action has
already been taken.
Although we conclude that the statute at issue, West Virginia
Code § 8-14A-3, did not require an internal hearing prior to the
punitive action taken against Sergeant Black, we must also analyze
whether principles of due process supersede statutory directive in
this instance and mandate such a hearing nonetheless. As this
Court recognized in Major v. DeFrench, 169 W. Va. 241, 286 S.E.2d
The United States and West Virginia Constitutions guarantee that no person shall be
deprived of life, liberty or property without due
process of law. W. Va. Const. art. 3, § 10; U.S.
Const. amend. XIV. It is fundamental to say that
due process guarantees freedom from arbitrary
treatment by the state. Thus whenever government
action infringes upon a person's interest in life,
liberty or property, due process requires the
government to act within the bounds of procedures
that are designed to insure that the government
action is fair and based on reasonable standards.
Id. at 251, 286 S.E.2d at 694-95.
Sergeant Black maintains, and the City does not dispute, that
he has a property interest in continued employment at his attained
rank which flows from applicable the civil service statutes. See
Major, 169 W. Va. at 251, 286 S.E.2d at 695; W. Va. Code § 8-14-11
(1990). Appellee maintains further that a liberty interest is at
stake, citing his good nameSee footnote 5 and prospects for future employment.
See Major, 169 W. Va. at 254-56, 286 S.E.2d at 696-97; Waite v.
Civil Serv. Comm'n, 161 W. Va. 154, 159-60, 241 S.E.2d 164, 167-68
As the United States Supreme Court recognized in Mathews v.
Eldridge, 424 U.S. 319 (1976), the following considerations must be
examined to determine what procedural protections are
constitutionally required in a given case:
first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally,
the Government's interest, including the
function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would
Id. at 335; accord, Major, 169 W. Va. at 257-58, 286 S.E.2d at 698. We applied the three Eldridge factors in Major, a case which involved the termination of a police officer at the conclusion of her probationary period, and found that:
Applying the first factor it is apparent that
. . . [p]ermanent appointment as a police
officer is a substantial right which
guarantees the employee job security, and
enables her to function as an officer without
fear of arbitrary treatment from superiors.
Applying the second factor, the standard contained in W. Va. Code § 8-14-11 . . . is designed to prevent an erroneous or arbitrary decision. Procedural protections can only help . . . reduce the risk of an erroneous deprivation of the probationer's protected interests.
Finally, the government's interest in avoiding any increased fiscal or administrative burden of required procedural protections is minimal, when considered in light of the benefits that will inure to the city as a result of due process requirements
. . . .
169 W. Va. at 258, 286 S.E.2d at 698.
When the Eldridge factors are applied to the instant case, the overwhelming conclusion is that a predisciplinary hearing is a procedural protection which is both suggested and required by principles of due process. First, a police officer, whose employment rights are delineated by civil service statutes, has a substantial interest in maintaining his achieved rank and attendant
pay. Second, given the exponentially increased risk of an
erroneous deprivation of an individual's interest in continued
employment absent such a hearing, the value of such a procedure is
not just probable, but in fact certain. And third, any additional
administrative or fiscal burdens incurred by the government through
requiring a predisciplinary hearing will be minimal at best.
The United States Supreme Court in Zinermon v. Burch, 494 U.S.
113 (1990), recently summarized how the Eldrige test has been
the Court usually has held that the Constitution
requires some kind of a hearing before the State
deprives a person of liberty or property. See,
e.g., Cleveland Board of Education v. Loudermill,
470 US 532, 542, 84 L Ed 2d 494, 105 S Ct 1487
(1985) ("'[T]he root requirement' of the Due
Process Clause" is "'that an individual be given an
opportunity for a hearing before he is deprived of
any significant protected interest'"; hearing
required before termination of employment (emphasis
in original)); . . . Goss v. Lopez, 419 US 565,
579, 42 L Ed 2d 725, 95 S Ct 729 (1975) (at
minimum, due process requires "some kind of notice
and . . . some kind of hearing" (emphasis in
original); . . . .
494 U.S. at 127 (some citations omitted).
Notwithstanding the Supreme Court's stated preference for predeprivation hearings, the Court did acknowledge in Zinermon that "[i]n some circumstances, . . . [it] has held that a statutory provision for a postdeprivation hearing, or a common-law tort remedy for erroneous deprivation, satisfies due process." Id. at 128. (citing Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)
("'"[T]he necessity of quick action by the State or the
impracticality of providing any predeprivation process"' may mean
that a postdeprivation remedy is constitutionally adequate, quoting
Parrat [v. Taylor], 451 US  at 539 [(1981), overruled in part
on other grounds by Daniels v. Williams, 474 U.S. 327 (1986)]
. . . ") The Court's ruling in Zinermon takes into consideration both pre- and postdeprivation hearings:
In situations where the State feasibly can
provide a predeprivation hearing before taking
property, it generally must do so regardless
of the adequacy of a postdeprivation tort
remedy to compensate for the taking. . . .
Conversely, in situations where a
predeprivation hearing is unduly burdensome in
proportion to the liberty interest at
stake, . . . or where the State is truly
unable to anticipate and prevent a random
deprivation of a liberty interest,
postdeprivation remedies might satisfy due
494 U.S. at 132 (citations omitted).
Although the United States Supreme Court has recognized that there are certain factual scenarios which preclude provision of a predeprivation hearing, the Court has reiterated on numerous occasions its overwhelming preference for predeprivation hearings where possible. See id; see also Ingraham v. Wright, 430 U.S. 651, 682 (1977) (hearing prior to corporal punishment in public schools not required by Due Process Clause because "risk of error that may result in violation of a schoolchild's substantive rights can only be regarded as minimal"); accord Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978). We adopt the same line of reasoning
applied by the United States Supreme Court in holding that
principles of due process mandate that a police officer subject to
civil service protection must be afforded a predisciplinary hearing
prior to discharge, suspension, or reduction in rank or pay
notwithstanding the provisions of West Virginia Code § 8-14A-3
unless exigent circumstances preclude such a predisciplinary
While we do not deem it necessary to elaborate on what
circumstances would qualify as exigent at this juncture, we note
that the Legislature has already codified one particular exigent
circumstance which would justify immediate discipline without the
opportunity for a predisciplinary proceeding. See W. Va. Code § 8-14A-2 (1990) (immediate temporary suspension of police officer who
reports for duty under the influence of alcohol or controlled
substances is permitted). The facts of this case simply do not
present any exigencies that justify the preclusion of a
predeprivation proceeding. Sergeant Black did not pose any type of
immediate threat or harm to the public or to the department itself.
Furthermore, the racist remark which he allegedly made took place
some ten months before the demotion. An expeditious
predisciplinary hearing could easily have been held in this matter
at minimal cost to the City.
Although the parties do not directly raise the issue of what type of predeprivation hearing is required by due process concerns,
we anticipate that question and respond by stating that "[i]n
general, 'something less' than a full evidentiary hearing is
sufficient prior to adverse administrative action." Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532, 545 (1985) (quoting Eldridge,
424 U.S. at 343). The Supreme Court explained the limited function
of a predisciplinary hearing in Loudermill, stating that "the
pretermination hearing need not definitively resolve the propriety
of the discharge. It should be an initial check against mistaken
decisions--essentially a determination of whether there are
reasonable grounds to believe that the charges against the employee
are true and support the proposed action." 470 U.S. at 545-46.
Having answered the certified questions, this case is
dismissed from the docket of this Court.
Footnote: 1The terms internal hearing and predisciplinary hearing are used synonymously in these certified questions.
Footnote: 2West Virginia Code § 8-14-20(a) (1990) requires that:
[n]o member of any paid police department subject to the civil service provisions of this article shall be removed, discharged, suspended or reduced in rank or pay except for just cause . . . and in no event until he shall have been furnished with a written statement of the reasons for such action.
Footnote: 3The type of hearing provided for by West Virginia Code § 8-14-20(a) (as well as West Virginia Code § 8-15-25 (1990)) is a public hearing before the policemen's civil service commission. Such a hearing is available upon request whenever a police officer is "sought to be removed, discharged, suspended or reduced [in rank or pay]" pursuant to West Virginia Code § 8-14-20(a). If the punitive action was taken prior to the opportunity for a hearing before the Commission, the police officer is nonetheless entitled to such a hearing following the disciplinary action according to the provisions of West Virginia Code § 8-14A-3(b).
Footnote: 4See W. Va. Code § 8-14A-1(4) (1990).
Footnote: 5Sergeant Black has consistently denied the charge against him.