Elizabeth A. Pyles
Pyles & Auvil
Parkersburg, West Virginia
Attorney for the Appellant
C. Blaine Myers
Parkersburg, West Virginia
Attorney for the Appellee
CHIEF JUSTICE BROTHERTON delivered the Opinion of the Court.
1. "The rules governing whether a public official is
entitled to indemnification for attorneys' fees are the same in
both the civil and criminal context. In order to justify
indemnification from public funds the underlying action must arise
from the discharge of an official duty in which the government has
an interest; the officer must have acted in good faith; and the
agency seeking to indemnify the officer must have either the
express or implied power to do so." Syllabus point 3, Powers v.
Goodwin, 174 W.Va. 287, 291 S.E.2d 466 (1982).
2. A not guilty verdict in a criminal case is not
conclusive evidence that the public employee has fulfilled all the
criteria listed in Powers v. Goodwin, 174 W.Va. 287, 291 S.E.2d 466
(1982). Rather, the verdict should be considered along with the
3. In a case involving a police officer charged with a
criminal act that the officer claims arose out of his employment,
a hearing should be held before the Police Civil Service Commission
to determine whether 1) the criminal charge arose out of the
discharge of the police officer's official duty in which the
government had an interest; and 2) the police officer acted in good
4. Generally, if a police officer is found guilty of a criminal charge, no reimbursement of attorneys' fees would occur. However, if a not guilty verdict is reached, then the Police Civil Service Commission should meet to determine whether the criminal charge arose out of the discharge of the officer's official duties and whether he acted in good faith. If so, then the attorneys' fees should be reimbursed, within certain limits set by the City.
Brotherton, Chief Justice:
This case relates to an appeal by Jeffrey Dyke, the
plaintiff below, from the February 4, 1993, order of the Circuit
Court of Wood County, West Virginia, granting the City of
Parkersburg's motion to dismiss.
The appellant, Jeffrey Dyke, was a police officer in
Parkersburg, West Virginia. On October 12, 1989, he was indicted
for sexual assault based on the complaint of a woman who alleged
that he forced her to have oral sex with him in the back seat of
his police cruiser while he was on active duty. On September 9,
1991, Mr. Dyke was found not guilty of the charge by a Wood County
jury in State v. Dyke, Case No. 88-F-115.
The appellant contends that the City of Parkersburg has
traditionally provided officers with legal assistance or reimbursed
them for defending themselves against criminal allegations arising
out of the scope of their employment. He contends that
reimbursement was based traditionally on either dismissal of
charges against the officer or a not guilty verdict. Thus, after
the not guilty verdict, he requested that the City of Parkersburg
reimburse him for the expenses associated with his defense. The
City of Parkersburg refused, claiming that no such policy existed.
On October 18, 1991, Mr. Dyke filed a complaint asking
that the City of Parkersburg be forced to pay his legal fees in the
amount of $10,500.00. On March 13, 1992, the City of Parkersburg
filed a motion to dismiss based upon Rule 12(b)(6) of the West
Virginia Rules of Civil Procedure. On November 9, 1992, the Wood
County Circuit Court granted the motion to dismiss. It is from the
February 4, 1993, final order that the appellant files this appeal.
The appellant argues that he stated a claim sufficient to
override a Rule 12(b)(6) motion. The City of Parkersburg contends,
and the Circuit Court of Wood County agreed, that the appellant
failed to state any claim because he provided no evidence of the
alleged policy on the part of the City of Parkersburg to reimburse
officers. The City of Parkersburg argues that, first, the
Governmental Tort Claims and Insurance Reform Act, W.Va. Code § 29-
12A-1 et seq. (1992), does not provide for payment or reimbursement
of attorneys' fees in criminal proceedings. Second, the City
states that even if the provision would arguably extend to
providing a defense in criminal proceedings, the act in this
particular case could not have been in "good faith" and would be
"manifestly outside the scope of . . . employment." The circuit
court agreed, finding that "[w]ith regard to the particular case at
issue, the charge of sexual assault could never be considered to be
caused by an act in the performance of any legitimate public duty."
The City of Parkersburg claims that the obligations of
the municipality are governed by the Governmental Tort Claims and
Insurance Reform Act.See footnote 1 West Virginia Code § 29-12A-11(a)(1)
Except as otherwise provided in this section, a political subdivision shall provide for the defense of an employee, in any state or federal court, in any civil action or proceeding to recover damages for injury, death, or loss to persons or property allegedly caused by an act or omission of the employee if the act or omission occurred or is alleged to have occurred while the employee was acting in good faith and not manifestly outside the scope of his employment or official responsibilities.
West Virginia Code § 29-12A-5(b) sets forth when a public employee would be immune from liability: See footnote 2
An employee of a political subdivision is immune from liability unless one of the following applies:
(1) His or her acts or omissions were manifestly outside the scope of employment or official responsibilities;
(2) His or her acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; or
(3) Liability is expressly imposed upon the employee by a provision of this code.See footnote 3
The language in the Tort and Insurance Reform Act is
unambiguous: It is clear that this Act affects only civil suits
against the public employee. In the case now before us, we agree
that the circuit court properly held that the Tort Claims and Insurance Reform Act did not apply in a criminal case such as this
one claiming sexual assault.
However, Mr. Dyke's allegations raise certain issues that
concern this Court. For public employees such as police officers,
the chance that a disgruntled citizen might raise false allegations
in retaliation for some official action is a very real possibility.
The fact that the charge was based upon a criminal statute rather
than a civil one does not change the fact that it might be based
upon the police officer's actions while performing his job.
Further, in the past, some public officials have been reimbursed
for their attorneys' fees after a not guilty verdict. State ex
rel. Chafin v. Mingo County Commission, 189 W.Va. 680, 434 S.E.2d
In Powers v. Goodwin, 174 W.Va. 287, 291 S.E.2d 466
(1982), we discussed the issue of whether a public employee or
official was entitled to the indemnification of attorneys' fees in
criminal cases. After noting that many states deal with this issue
by statute, we noted that "many reported cases have asserted the
general rule that a government official cannot be indemnified for
attorneys' fees arising from a criminal prosecution." Id. at 473.
However, we then stated that:
[W]e can envisage situations where a criminal prosecution does, indeed, arise directly from the good faith discharge of official duties . . . .
While the number of criminal prosecutions emanating directly from the discharge of official duties is small, they are not necessarily nonexistent. In this regard, we can at least envisage prosecutions against police officers for the use of excessive force and proceedings in criminal contempt against local officials who are accused of failing to follow either state or federal court orders. It would appear, of course, that conviction of a common law or statutory crime is conclusive proof that the official was not acting in good faith and was outside the scope of his official duties.
Id. at 473-74. The Court concluded that:
The rules governing whether a public
official is entitled to indemnification for
attorneys' fees are the same in both the civil
and criminal context. In order to justify
indemnification from public funds the
underlying action must arise from the
discharge of an official duty in which the
government has an interest; the officer must
have acted in good faith; and the agency
seeking to indemnify the officer must have
either the express or implied power to do so.
Id. at syl. pt. 3.
In Powers, we held that a public employee's attorneys'
fees may be reimbursed in a criminal case if certain criteria are
met. In this case, the appellant would be entitled to
indemnification if the sexual assault charge developed from a
discharge of his official duty, if the officer acted in good faith,
and if the city has the authority to indemnify the employee. We
hesitate to hold that a not guilty verdict automatically means that the above criteria are met. We can imagine many different
situations which would not be related to the employee's official
duties, but would still result in a not guilty verdict. For
example, the woman who charged Officer Dyke might well have known
him, and became angry with him, from a venue quite apart from the
back seat of the police cruiser. Although it may not have been
sexual assault, it also may not have had anything to do with his
job. We do not suggest that this is what happened -- in fact, we
have so little of the record available to us that we know nothing
more than the basic facts. Rather, we point out that because there
are several different, yet equally possible, scenarios, a not
guilty verdict does not automatically mean that the employee should
be reimbursed. Thus, a not guilty verdict in a criminal case is
not conclusive evidence that the public employee has fulfilled all
the criteria listed in Powers. Rather, the verdict should be
considered along with the other evidence. On the other hand, a
guilty verdict is almost always conclusive evidence that the
criminal act was not related to his employment.
We next turn to the issue of who should determine whether
the public official's attorneys' fees should be reimbursed. In
Powers, we noted the problems inherent in a public subdivision
determining whether to indemnify itself for attorneys' fees. The
Court concluded that, in questionable cases, an advance
determination can be sought through an Attorney General's opinion or a mandamus proceeding against the appropriate official. Id. at
475. In this case, we believe that some of those problems
discussed in Powers could be avoided by using the Police Civil
Service CommissionSee footnote 4 as an appropriate forum to determine whether
the situation met the requirements listed in syllabus point 3 of
Consequently, in a case involving a police officer
charged with a criminal act that the officer claims arose out of
his employment, a hearing should be held before the Police Civil
Service Commission to determine whether 1) the criminal charge
arose out of the discharge of the police officer's official duty in
which the government had an interest; and 2) the police officer
acted in good faith. Generally, if the officer is found guilty of
the criminal charge, no reimbursement of attorneys' fees would
occur. However, if a not guilty verdict is reached, then the
Police Civil Service Commission should meet to determine whether
the criminal charge arose out of the discharge of the officer's
official duties and whether he acted in good faith. If so, then
the attorneys' fees should be reimbursed, within certain limits set
by the City.See footnote 5
Accordingly, we reverse the February 4, 1993 order of the
Circuit Court of Wood County and remand this case for a hearing to
be held before the Police Civil Service Commission for a
determination of whether the officer's attorneys' fees should be
reimbursed. The police officer has the right to appeal that ruling
to the circuit court.
Footnote: 1 In Randall v. Fairmont City Police Department, 186 W.Va. 336, 412 S.E.2d 737 (1991), the Court upheld the constitutionality of the Governmental Tort Claims and Insurance Reform Act. The Court stated that in order to successfully challenge legislation upon a constitutional basis, the challenger "must establish that no set of circumstances exist under which the legislation would be valid; the fact that the legislation might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid." Id. at 746.
Footnote: 2 West Virginia Code § 29-12A-2 sets forth the legislative intent in the creation of this statute:
The Legislature finds and declares that the political subdivisions of this state are unable to procure adequate liability insurance coverage at a reasonable cost due to: The high cost in defending such claims, the risk of liability beyond the affordable coverage, and the inability of political subdivisions to raise sufficient revenues for the procurement of such coverage without reducing the quantity and quality of traditional governmental services. Therefore, it is necessary to establish certain immunities and limitations with regard to the liability of political subdivisions and their employees, to regulate the insurance industry providing liability insurance to them, and thereby permit such political subdivisions to provide necessary and needed governmental services to its citizens within the limits of their available revenues.