S. Andrew Arnold
John W. Askintowicz, III
Sheperdstown, West Virginia Law Office of John W. Askintowicz, III
Ross A. Nabatoff Charles Town, West Virginia
Christy Hallam DeSanctis Attorney for the Appellee
Brand & Frulla, P.C.
Washington, District of Columbia
Attorneys for the Appellant
JUSTICE DAVIS delivered the Opinion of the Court.
1. 'The standard of review applicable to an appeal from a motion to
alter or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same
standard that would apply to the underlying judgment upon which the motion is based and
from which the appeal to this Court is filed.' Syllabus point 1, Wickland v. American
Travellers Life Insurance Co., 204 W. Va. 430, 513 S.E.2d 657 (1998). Syllabus point
2, Bowers v. Wurzburg, 205 W. Va. 450, 519 S.E.2d 148 (1999).
2. The judgment of a circuit court affirming a final order of a police
civil service commission, upon appeal therefrom as provided by statute, will not be
reversed by this Court unless the final order of the commission was against the clear
preponderance of the evidence or was based upon a mistake of law. Syllabus point 2, In
re Prezkop, 154 W. Va. 759, 179 S.E.2d 331 (1971).
3. Where the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review. Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d
4. W. Va. Code § 8-14A-3(b) (1997) (Repl. Vol. 1998) requires that,
before a civil service officer may be disciplined through discharge, suspension, or
reduction in rank or pay, he/she must be afforded a predisciplinary hearing before a
hearing board unless there exist exigent circumstances that require the recommended
disciplinary action to precede such hearing. To the extent our prior decision in the
Syllabus of City of Huntington v. Black, 187 W. Va. 675, 421 S.E.2d 58 (1992), is
inconsistent with this holding, it is hereby expressly modified.
The appellant herein and plaintiff below, Kevin A. Alden [hereinafter Officer Alden], appeals from the January 19, 2000, decision of the Circuit Court of Jefferson County denying his motion to alter or amend its earlier judgment. In its prior ruling, entered November 30, 1999, the circuit court found that the Harpers Ferry Police Department [hereinafter the Department] had demonstrated just cause to terminate Officer Alden's employment, affirming the October 20, 1998, decision of the Harpers Ferry Police Civil Service Commission [hereinafter the Commission], which likewise upheld Alden's termination. On appeal to this Court, Officer Alden assigns two errors: (1) he was not afforded a pre-termination hearingSee footnote 1 1 and (2) his post-termination hearing was constitutionally deficient. Upon a review of the parties' arguments, the appellate record, and the pertinent authorities, we find that Officer Alden was not afforded the statutorily- mandated pre-termination hearing as required by W. Va. Code § 8-14A-3(b) (1997) (Repl. Vol. 1998). Accordingly, we reverse the decision of the Circuit Court of Jefferson County and remand this case for further proceedings consistent with this opinion.
Also during this term of employment, Officer Alden received two evaluations of his job performance,See footnote 3 3 both of which resulted in an overall rating of unsatisfactory. As a result of these poor reviews and as a consequence of his multiple infractions, Officer Alden's supervising officers counseled him regarding his job performance and recommended methods of improvement. In addition to these meetings, the supervising
officers verbally reprimanded Officer Alden on numerous occasions and presented him
with written warnings stemming from his various infractions.See footnote 4
One of these written
warnings, issued on November 17, 1997, cautioned Officer Alden that it should be
construed as a final warning and that any further violation will result in [t]ermination.
Ultimately, by letter dated May 30, 1998, the Department terminated Officer Alden's employment. Officer Alden thereafter appealed his discharge to the Commission. Following a post-termination hearing,See footnote 5 5 the Commission determined, by decision rendered October 20, 1998, that the Department had demonstrated just cause for Officer Alden's termination as required by W. Va. Code § 8-14-20(a) (1996) (Repl. Vol. 1998).See footnote 6 6 Officer Alden then appealed the Commission's ruling, which was upheld by the Circuit Court of Jefferson County on November 30, 1999. By subsequent order entered January 19, 2000,
the circuit court similarly rejected Officer Alden's Rule 59(e)See footnote 7
motion to alter or amend
its earlier ruling, including his claim that he had been denied a pre-termination hearing in
contravention of W. Va. Code § 8-14A-3(b).See footnote 8
This appeal followed.
The present case, however, presents a slightly different scenario for our
consideration. First, Officer Alden was terminated from his employment, as opposed to
receiving a lesser form of discipline. Second, the statute determinative of this appeal has
been amended since we first examined its provisions in the Black case. As we observed
therein, the terms of W. Va. Code § 8-14A-3 did not, at that time, expressly require that
a civil service police officer facing discipline be afforded a predisciplinary hearing.See footnote 10
Syl., 187 W. Va. 675, 421 S.E.2d 58. The present version of this statute, though,
expressly affords officers such protection. W. Va. Code § 8-14A-3 (1997) (Repl. Vol.
1998) provides, in pertinent part:
(a) Before taking any punitive action against an accused officer, the police or fire department shall give notice to the accused officer that he or she is entitled to a hearing on the issues by a hearing board or the applicable civil service commission. The notice shall state the time and place of the hearing and the issues involved and shall be delivered to the accused officer no later than ten days prior to the hearing.
(b) When a civil service accused officer faces a recommended punitive action of discharge, suspension or reduction in rank or pay, but before such punitive action is taken, a hearing board must be appointed and must afford the accused civil service officer a hearing conducted pursuant to the provisions of article fourteen, section twenty [§ 8-14- 20],[See footnote 11 11 ] or article fifteen, section twenty-five [§ 8-15-25][See footnote 12 12 ] of this chapter: Provided, That the punitive action may be taken before the hearing board conducts the hearing if exigent circumstances exist which require it. . . .
(Footnotes added). Typically, the word must is afforded a mandatory connotation. See McMicken v. Province, 141 W. Va. 273, 284, 90 S.E.2d 348, 354 (1955) (construing must as a mandatory word), overruled on other grounds by Bradley v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879 (1979). See also Larson v. State Personnel Bd., 28 Cal. App. 4th 265, 276, 33 Cal. Rptr. 2d 412, 419 (1994) (The ordinary meaning of 'shall' or 'must' is of mandatory effect[.] (citation omitted)); Tranen v. Aziz, 59 Md. App. 528, 534-35, 476 A.2d 1170, 1173 (The term 'must' imposes a positive, absolute duty, . . . and has been defined as 'compulsion or obligation' or 'requirement or prerequisite.' (citations omitted)), cert. granted, 301 Md. 471, 483 A.2d 754 (1984), aff'd, 304 Md. 605, 500 A.2d 636 (1985); Federal Land Bank of St. Paul v. Waltz, 423 N.W.2d 799, 802 (N.D. 1988) (The word 'must' as ordinarily used indicates a mandatory and not merely a directory or nonmandatory duty. (citation omitted)). Thus, the express language of W. Va. Code § 8-14A-3(b) now requires a predisciplinary hearing to be afforded to a civil service police officer facing certain forms of disciplinary action unless exigent circumstances exist to preclude such a proceeding. In keeping with this statutory amendment, we hold that W. Va. Code § 8-14A-3(b) (1997) (Repl. Vol. 1998) requires that, before a civil service officer may be disciplined through discharge, suspension, or reduction in rank or pay, he/she must be afforded a predisciplinary hearing before a hearing board unless there exist exigent circumstances that require the recommended disciplinary action to precede such hearing. To the extent our prior decision in the Syllabus of City of Huntington v. Black, 187 W. Va. 675, 421 S.E.2d 58 (1992), is inconsistent with this holding, it is hereby expressly modified.
Applying the present statutory law to the case sub judice, we observe that the
Department improperly terminated Officer Alden when it informed him of his discharge,
but failed to provide him with a pre-termination hearing. Both the Commission and the
circuit court compounded this procedural aberration when they upheld the Department's
disciplinary action without recognizing the aggrieved officer's right to such a hearing.
While it is true that a hearing is not necessary before disciplinary action is taken when
there exist exigent circumstances, none of the entities responsible for affording Officer
Alden this procedural protection even acknowledged his right to such a hearing during the
proceedings underlying this appeal.See footnote 13
By the same token, the first indication that
exigencies existed to abrogate the pre-termination hearing requirement is contained in the
Commission's appellate brief before this Court. This tardy recognition of allegedly exigent
circumstances is simply not sufficient to deprive a civil service police officer of his
constitutionally-based statutory rights upon his discharge from employment. See Syl.,
Black, 187 W. Va. 675, 421 S.E.2d 58. Therefore, we reverse the order of the circuit
court finding that Officer Alden had received the process due him in the course of his
termination and remand this case for further proceedings consistent with this opinion.
At this juncture, we wish to clarify the nature of the proceedings on remand.
This opinion should not, in any manner, be construed as prohibiting the ultimate discharge
of Officer Alden from his employment with the Department if the incidents of misconduct
alleged are sufficiently supported by the evidence so as to establish a finding of just
causeSee footnote 14
as required by W. Va. Code § 8-14-20(a). We particularly are troubled by the
numerous violations of departmental policies and procedures cited in the record of this case
as well as the potential harm to the sanctity of Harpers Ferry and the safety of her citizens
should such behaviors be permitted to continue.See footnote 15
If, then, it is determined upon remand
that the Department had just cause to terminate Officer Alden, we caution the presiding
tribunals to scrupulously protect the rights afforded to such individuals by the relevant
provisions of the West Virginia Code. See generally W. Va. Code § 8-14-1, et seq.;
W. Va. Code § 8-14A-1, et seq.See footnote 16
Furthermore, as we have determined the circuit court's affirmance of Officer
Alden's termination to have been erroneous and to necessitate further proceedings, we
need not address, at the present time, the alleged errors concerning the adequacy of
Alden's post-termination hearing. That is not to say, however, that the boundaries of a
post-termination proceeding are limitless. The Due Process Clause, Article III, Section
10 of the West Virginia Constitution, requires procedural safeguards against State action
which affects a liberty or property interest. Syl. pt. 1, Waite v. Civil Serv. Comm'n, 161
W. Va. 154, 241 S.E.2d 164 (1977). Therefore, upon the remand of this case, we charge
the tribunals presiding over such proceedings to vigilantly defend Officer Alden's right to
a post-termination hearing, pursuant to W. Va. Code § 8-14-20(a), with all of the
protections afforded by the due process clause of this State's constitution.
Reversed and Remanded.
(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 (1982) (Cuml. Supp. 1983). See also notes 11 (addressing W. Va. Code § 8-14-20 hearing procedures) and 12 (discussing format of hearing required by W. Va. Code § 8-15-25), infra.
[j]ust cause has been defined as a substantial cause
'which specially relates to and affects the administration of the
office, and must be restricted to something of a substantial
nature directly affecting the rights and interest[s] of the public.
An officer should not be removed from office for matters
which are trivial, inconsequential, or hypothetical, or for mere
technical violations of statute or official duty without wrongful
Mangum v. Lambert, 183 W. Va. 184, 187, 394 S.E.2d 879, 882 (1990) (quoting Johnson v. City of Welch, 182 W. Va. 410, 413, 388 S.E.2d 284, 287 (1989) (per curiam) (quoting 67 C.J.S. Officers § 120b (1936) (footnotes omitted))) (additional citations omitted). See also note 6 (quoting the just cause portion of W. Va. Code § 8-14-20(a)), supra.