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Cales v. Town of Meadow Bridge

Supreme Court of West Virginia

May 30, 2017

DWAYNE CALES, Petitioner Below, Petitioner
v.
TOWN OF MEADOW BRIDGE: TIMOTHY KILLEN, MAYOR; PATRICIA JONES, RECORDER; BONNIE HICKS, EULA MATLOCK, AND JOSEPHINE KINCAID, COUNCIL MEMBERS, Respondents Below, Respondents

          Submitted: April 19, 2017

         Appeal from the Circuit Court of Fayette County The Honorable Paul M. Blake, Jr., Judge Civil Action No. 15-C-260

          Barry L. Bruce, Esq. Barry L. Bruce and Associates, L.C. Lewisburg, West Virginia Counsel for the Petitioner

          R. Grady Ford, Esq. The Ford Law Firm PLLC Lewisburg, West Virginia Counsel for the Respondents

          Timothy P. Stranko, Esq. Charleston, West Virginia Attorney for Amicus Curiae West Virginia Municipal League, Inc.

         SYLLABUS BY THE COURT

         1. "A de novo standard of review applies to a circuit court's decision to grant or deny a writ of mandamus." Syllabus Point 1, Harrison Cty. Comm'n v. Harrison Cty. Assessor, 222 W.Va. 25, 658 S.E.2d 555 (2008).

         2. "'To invoke mandamus the relator must show (1) a clear right to the relief sought; (2) a legal duty on the part of the respondent to do the thing relator seeks; and (3) the absence of another adequate remedy.' Syllabus point 2, Myers v. Barte, 167 W.Va. 194, 279 S.E.2d 406 (1981)." Syllabus Point 3, Harrison Cty. Comm'n v. Harrison Cty. Assessor, 222 W.Va. 25, 658 S.E.2d 555 (2008).

         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 415 (1995)." Syllabus Point 4, Harrison Cty. Comm'n v. Harrison Cty. Assessor, 222 W.Va. 25, 658 S.E.2d 555 (2008).

         4. "Among the criteria to be considered in determining whether a position is an office or a mere employment are whether the position was created by law; whether the position was designated an office; whether the qualifications of the appointee have been prescribed; whether the duties, tenure, salary, bond and oath have been prescribed or required; and whether the one occupying the position has been constituted a representative of the sovereign." Syllabus Point 5, State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970).

         5. A municipal sanitary board member does not hold a municipal office and thus is not a municipal officer protected by West Virginia Code § 6-6-7 (2015) in the event of involuntary removal.

          OPINION

          WALKER, Justice.

         Petitioner Dwayne Cales appeals the March 1, 2016 order of the Circuit Court of Fayette County denying his petition for a writ of mandamus seeking reinstatement to his position as a member of the Meadow Bridge Sanitary Board ("Sanitary Board"). On appeal, Petitioner asserts that he was a municipal officer protected by West Virginia Code § 6-6-7 in the event of involuntary removal. Respondents assert that Petitioner was not a municipal officer for purposes of West Virginia Code § 6-6-7 and that his removal by a majority vote of Respondent Meadow Bridge Town Council ("Town Council") was proper.[1] Upon consideration of the parties' briefs and arguments, the submitted record and pertinent authorities, we affirm the March 1, 2016 order of the Circuit Court of Fayette County.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In June 2015, Petitioner was appointed by the Town Council to serve his third consecutive term as a member of the Sanitary Board. Subsequently, Sanitary Board members voted in favor of him serving in the capacity of vice chairman of the Sanitary Board.

         At a special meeting on September 21, 2015, a majority of the Town Council voted to remove Petitioner from the Sanitary Board pursuant to § 3-112 of the Meadow Bridge Code of Ordinances ("Municipal Code").[2] On September 25, 2015, Petitioner filed a "Petition for Writ of Mandamus Pursuant to West Virginia Code § 6-6-7 and § 16-13-18" against Respondents[3] seeking reinstatement to his position as a member of the Sanitary Board. Petitioner alleged that Respondents wrongfully removed him from his position as vice chairman of the Sanitary Board "in violation of West Virginia Code § 16-13-18[4] as they had no authority to remove [him] from his position . . . and, pursuant to West Virginia Code § 6-6-7, Respondents failed to follow the statutorily required procedure for removal of a municipal officer." (footnote added).

         Respondents filed a motion to dismiss on October 23, 2015, asserting that West Virginia Code § 6-6-7 is inapplicable to Petitioner because a vice chairman of the Sanitary Board is not a "municipal officer" under West Virginia Code § 6-6-7(a), and is therefore not afforded the extraordinary protections and safeguards included in that statute.[5] Respondents further asserted that Municipal Code § 3-112 gave them authority to remove Petitioner from his position as a member of the Sanitary Board, with or without cause, by a majority vote of the Town Council.

         Following a hearing on December 23, 2015, and in consideration of the parties' memoranda proposing findings of fact and conclusions of law, the circuit court entered an "Order Denying Relief and Dismissing Petition for Writ of Mandamus" on March 1, 2016. The circuit court held that it was not reasonable, appropriate or proper to extend the procedural protections and safeguards of West Virginia Code § 6-6-7 to a member of a sanitary board. The circuit court determined that Petitioner was not a public official holding a public office, and thus declined to find a legal duty on the part of the Town of Meadow Bridge to comply with the extraordinary protections and safeguards of West Virginia Code § 6-6-7 in removing Petitioner from his position on the Sanitary Board.

         Citing to our holding in Christopher v. City of Fairmont, 167 W.Va. 710');">167 W.Va. 710, 280 S.E.2d 284 (1981)[6], the circuit court found that Petitioner failed to establish the requisite criteria to prove that his position at the sanitary board was an "office." The circuit court noted that a sanitary board member is not expressly designated as an official in the operative statute, West Virginia Code §16-13-18, or in the town ordinance, Municipal Code § 17-113.[7] The circuit court also recognized public policy considerations supporting its finding that Petitioner was not entitled to the procedural protections set forth in West Virginia Code § 6-6-7, such as the substantial time, travel, and expenditure of resources associated with removal proceedings. Finally, the circuit court noted the lack of precedent upon which it could rely:

As there is no case law directly on point the factual circumstances presented in the case at bar, and there is rather meager case law regarding how far the protections of § 6-6-7 may actually extend, it is unclear whether these facts would hold sway over West Virginia Supreme Court affirming or extending § 6-6-7 protections to officials that may appear to be upon the cusp of, or even far removed, from what this Court thinks was originally contemplated as the intended purpose behind the legislature's development of § 6-6-7 procedural protections and safeguards. Based upon the existence of very limited precedence, it is clear to this Court clarification in the application of § 6-6-7 either by the legislature, or by the West Virginia Supreme Court of Appeals, is both desired and necessary.

         Petitioner appeals the circuit court's order.

         II. STANDARD OF REVIEW

         In this case, we are asked to review the circuit court's denial of Petitioner's writ of mandamus. In Syllabus Point 1 of Harrison County Commission v. Harrison County Assessor, 222 W.Va. 25, 658 S.E.2d 555 (2008), this Court established the standard of review that guides our analysis in these types of cases and held that "[a] de novo standard of review applies to a circuit court's decision to grant or deny a writ of mandamus." In so holding, we explained that:

Under this standard, "we consider de novo whether the legal prerequisites for mandamus relief are present." McComas v. Board of Educ. of Fayette County, 197 W.Va. 188, 193, 475 S.E.2d 280, 285 (1996) (quoting State ex rel. Cooper v. Caperton, 196 W.Va. 208, 214, 470 S.E.2d 162, 168 (1996)).

Id. at 28, 658 S.E.2d at 558. The prerequisites for mandamus relief are:

"[t]o invoke mandamus the relator must show (1) a clear right to the relief sought; (2) a legal duty on the part of the respondent to do the thing relator seeks; and (3) the absence of another adequate remedy." Syl. pt. 2, Myers v. Barte, 167 W.Va. 194, 279 S.E.2d 406 (1981).

Id. at 26, 658 S.E.2d at 556, syl. pt. 3.

         Moreover, we apply a de novo review in this case because the issue presented requires us to resolve questions of law. "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." Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Keeping these standards in mind, we proceed to consider the parties' arguments.

         III. DISCUSSION

         Petitioner presents four assignments of error.[8] However, the sole issue at the heart of this matter is whether a member of a municipal sanitary board is a municipal officer entitled to the procedural protections set forth in West Virginia Code § 6-6-7. Petitioner contends he could be removed from his position on the Sanitary Board only by the procedures outlined in West Virginia Code § 6-6-7, which include, among other things, removal for cause following an investigation and complaint filed by the county's prosecuting attorney and a trial before an appointed three-judge panel. W.Va. Code § 6-6-7(a) - (c). However, in order to prevail, Petitioner must show that he was a municipal officer under West Virginia Code § 6-6-7, which applies to "[a]ny person holding any county, school district or municipal office . . ." W.Va. Code § 6-6-7(a).

         Petitioner argues that the circuit court should have read West Virginia Code § 6-6-7 in pari materia with West Virginia Code § 6-6-8.[9] He contends that while West Virginia Code § 6-6-7 applies to officers with fixed terms, West Virginia Code § 6-6-8 applies to officers without fixed terms. Thus, Petitioner reasons that he must only show that he is an officer with a fixed term, which is made clear by West Virginia Code § 16-13-18(c), for West Virginia Code § 6-6-7 to apply.

         Petitioner further contends that contrary to the circuit court's holding, the reasoning in Christopher supports a finding that sanitary board members are municipal officers for purposes of West Virginia Code § 6-6-7, as is the vice chairman of a sanitary board. Specifically, Petitioner alleges that:

1. The position of Sanitary Board member is created by statute § 16-13-18(c).
2. The position of vice chairman is designated as an office under statute § 16-13-18(c) and Municipal Code § 17-113.
3. The statute requires a bond if same is required by the enabling Municipal Code § 17-113, which only requires a bond of the secretary/treasurer.[10]
4. The statute § 16-13-1, et seq, does not require an oath nor does the ordinance; however, the appellant was given an oath by the Mayor prior to taking office on June 1, 2015[.][11]
5. The duties and tenure are prescribed by statute ยง 16-13-18(c) and the powers of the Sanitary Board, ...

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