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Porter v. Brown

Supreme Court of West Virginia

April 12, 2017

Sonya Porter, Sheriff of Logan County, West Virginia, Respondent Below, Petitioner,
James H. Brown, III, Petitioner Below, Respondent.

         Logan County 13-C-165


         On December 17, 2015, the Petitioner, respondent below, Sonya Porter, Sheriff of Logan County, West Virginia ("Sheriff Porter"), by counsel John R. Teare, Jr., filed a Notice of Appeal with this Court from an order of judgment of the Circuit Court of Logan County, West Virginia, dated November 19, 2015, which was represented to be a "final decision on the merits as to all issues and all parties." The Respondent, petitioner below, is James H. Brown, III ("Deputy Brown"), by counsel George L. Partain, who was, at all relevant times, a Logan County deputy sheriff. The Notice of Appeal arose out of an action involving the administrative leave with pay of Deputy Brown during the course of investigation of allegations of misconduct. The order of November 19, 2015, directed the payment of attorney's fees to Deputy Brown's attorneys in connection with a mandamus action brought by Deputy Brown wherein relief was sought from actions and inactions of the Sheriff and of the Logan County Deputy Sheriffs' Civil Service Commission ("Commission").

         Sheriff Porter raised four assignments of error. First, it was asserted that the circuit court erred in determining that Deputy Brown was entitled to a hearing before the Commission to challenge his placement on paid administrative leave. Second, it was claimed that the circuit court erred when it adopted the findings of the Commission in support of the award of attorney's fees. Third, Sheriff Porter asserted the circuit court erred in interfering with the lawful authority of the Sheriff, imposing requirements on the Sheriff beyond the authority of the Commission, and by apparently adopting and incorporating erroneous procedures enunciated by the Commission in its final order. Fourth, Sheriff Porter claimed there was no statutory, legal, or other basis for an award of attorney's fees in favor of Deputy Brown.

         Subsequently, this Court issued a briefing order and set the matter for oral argument. We have considered the parties' briefs and the record on appeal. For the reasons set forth below, this Court concludes that the circuit court order of November 19, 2015, is not a final order such that the appeal was improvidently docketed and, accordingly, must be dismissed.

         Facts and Proceedings

         On November 9, 2012, Logan County Sheriff W. E. Hunter[1] went to the home of Deputy Brown and informed Deputy Brown that he was suspended. Sheriff Hunter delivered a written "Notice of Internal Investigation" to Deputy Brown. The Notice provided that an internal investigation was ordered for the purpose of investigating "various allegations of misconduct made against you." It indicated that because the investigation was in the early stages, a complete description of the potential violations was not possible. The Notice indicated that in the event the investigation resulted in a recommendation for punitive action, Deputy Brown would be provided specific allegations and would be entitled to a hearing prior to any discipline other than counseling.

         Further, the Notice provided that the investigation would be conducted by Corporal F.N. Ferrell, could lead to punitive action including termination of employment, and that the investigation would be conducted pursuant to W.Va. Code §§ 7-14C-1 through 5[2] (1995) (Repl. Vol. 2015). Moreover, pursuant to the Notice, Deputy Brown was placed on "paid administrative leave during the pendency of this investigation and until further notice." The Notice directed that Deputy Brown was to attend all scheduled court dates, obey all rules and regulations of the Logan County Sheriff's Department, remain at his place of residence from 8:30 a.m. until 4:30 p.m. Monday through Friday unless another location is authorized, respond to phone calls from the Sheriff's office, and be reasonably available for investigative purposes. The Notice provided that Deputy Brown could not exercise any authority or engage in law enforcement. Pursuant to the Notice, Deputy Brown was instructed that he could not contact witnesses or suspects in any matter. Further, he could no longer engage in previously approved secondary employment and was required to surrender all Sheriff's Department equipment. Finally, he was advised that Corporal Ferrell would contact him to schedule all necessary interviews. The Notice offered no information regarding the nature of the allegations of misconduct.

         Newly-elected Sheriff, Sonya Porter, took office on January 1, 2013. Toward the end of January 2013, Corporal Ferrell completed his investigation and submitted a report to Sheriff Porter. Corporal Ferrell did not interview Deputy Brown, who remained uninformed of the nature of the allegations of misconduct. At some point, Sheriff Porter received additional complaints of misconduct allegedly committed by Deputy Brown. Deputy Brown was not informed of the additional complaints.

         On April 26, 2013, Deputy Brown filed a Petition for Reinstatement with the Commission. The Petition for Reinstatement advanced the position that the Notice of November 9, 2012, amounted to a more than five-month suspension or removal of Deputy Brown as a deputy without providing a statement of the reasons for removal or suspension in violation of W.Va. Code § 7-14-17[3] (1996) (Repl. Vol. 2015). Deputy Brown, among other things, requested that the Commission convene, hold a hearing, and direct the Sheriff to reinstate him. On May 3, 2013, Sheriff Porter filed a response in opposition to the Petition for Reinstatement arguing that the Commission had no authority to direct the return of Deputy Brown to active law enforcement duties as he had not been disciplined but, rather, was on paid administrative leave during an active internal investigation of misconduct. On May 8, 2013, Deputy Brown filed a reply with the Commission asserting that nothing in the relevant statutes authorized a six-month effective removal or suspension styled as administrative leave without providing any information regarding the nature of the complaints or the investigation and without interviewing or interrogating the deputy being investigated. On May 23, 2013, Deputy Brown informed the Commission that if it did not proceed to convene and hold a hearing, he would seek a writ of mandamus before the circuit court in order to compel the hearing.

         The Commission did not schedule a hearing. On June 27, 2013, Deputy Brown filed a civil action seeking mandamus relief from the Commission and from Sheriff Porter as respondents. As to the Commission, Deputy Brown sought extraordinary relief in the form of an order directing the Commission to convene and hold a public hearing on the Petition for Reinstatement. Deputy Brown sought extraordinary relief as to the Sheriff in the form of an order directing the Sheriff to forthwith pursue and conclude the internal investigation. Thereafter, the circuit court entered separate rules to show cause why the relief should not be granted as to both the Commission and Sheriff Porter. A hearing was held before the circuit court on August 26, 2013, followed by an order of August 29, 2013, wherein the circuit court indicated that Deputy Brown could proceed with his petition directed toward Sheriff Porter without the Commission.[4] The order also directed various actions to be taken regarding the need to appoint commissioners to the Commission.[5] On August 30, 2013, Sheriff Porter filed a motion to dismiss the mandamus action.

         In late September 2013, Sheriff Porter advised Deputy Brown that Corporal Mayes would be investigating, contacting Deputy Brown, and conducting an interview/interrogation of Deputy Brown. The interview/interrogation was conducted on October 4, 2013. The internal investigation concluded, and Sheriff Porter issued a Notice of Termination, Statement of Charges, and Notice of a Right to a Hearing[6] on December 16, 2013, some 13 months after Deputy Brown was placed on paid administrative leave and prior to the scheduled hearing before the circuit court of January 27, 2014.

         At the January 27, 2014, hearing, the circuit court observed that the filing of the charges by Sheriff Porter rendered the relief requested as to the Sheriff moot and that the court would hold the issue of attorney's fees in abeyance. Nobody appeared at the hearing on behalf of the Commission. On February 7, 2014, the circuit court entered an order, among other things, summarily denying the Sheriff's motion to dismiss. The Commission was ordered to convene a hearing and make a determination of the issues raised in Deputy Brown's Petition for Reinstatement. Further, the Commission was ordered to make a determination of whether the paid administrative leave imposed upon Deputy Brown constituted a suspension or punishment under the statutory scheme and, if so, to determine the appropriate remedy. The order provided that the rulings of the Commission would be appealable to the circuit court. The order reflected that all other matters related to Deputy Brown's Writ of Mandamus were held in abeyance.

         The Commission proceeded to convene a hearing on April 4, 2014, at which time evidence was taken and testimony elicited.[7] The transcript of the Commission hearing is not part of the record before this Court. On June 19, 2014, the Commission entered an order styled "Logan County Deputy Sheriff's Civil Service Commission Findings of Fact, Conclusions of Law and Final Order." Among other things, the Commission concluded that although not specifically provided for by statute, administrative leave with pay during the pendency of an investigation is within the authority of a sheriff, but the length and scope of the investigation must be reasonable in light of the allegations or complaints of misconduct. The Commission also determined that notice of the allegations must be given to the deputy without delay. Further, the Commission decided that an action of administrative leave with pay must follow the letter and spirit of the statute in terms of scope and reasonableness. The Commission specifically concluded that Deputy Brown was not given notice of the allegations he faced, and the length of Sheriff Porter's investigation exceeded its scope and reasonableness. Accordingly, the Commission ordered that Deputy Brown be reinstated to full duties as a Logan County deputy sheriff. Deputy Brown's counsel was ordered to submit an itemized statement of fees and expenses for consideration and further order of the Commission.

         Deputy Brown's counsel submitted an itemized statement. On July 22, 2014, the Commission President sent a letter to the Logan County Commission regarding the invoice in the total amount of $18, 293.48. The Commission President represented that the invoice had been reviewed and reduced to exclude work which was directed at the writ of mandamus filed before the circuit court. The letter requested that the Logan County Commission pay the ...

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