SERGEANT ROBERT E. FRUTH, II, Plaintiff Below, Petitioner
GREG A. POWERS, SHERIFF OF MASON COUNTY, AND MASON COUNTY DEPUTY SHERIFF'S CIVIL SERVICE COMMISSION, Defendants Below, Respondents
Submitted: September 19, 2017
from the Circuit Court of Mason County The Honorable Thomas
Evans, III, Judge Civil Action Nos. 12-AA-157, 158; 14-AA-57
Michael N. Eachus, Esq. Eachus & Finley, Esq. Gallipolis,
Ohio and Mark L. McMillian, Esq. Mark McMillian, Attorney at
Law, L.C. Charleston, West Virginia Counsel for the
H. Miller, Esq. Joseph L. Amos, Jr., Esq. Miller & Amos,
Attorneys at Law Charleston, West Virginia Counsel for the
BY THE COURT
"A final order of a deputy sheriffs' civil service
commission, based upon findings not supported by the
evidence, upon findings contrary to the evidence, or upon a
mistake of law, will be reversed and set aside by this Court
upon review." Syllabus Point 1, Mangum v.
Lambert, 183 W.Va. 184');">183 W.Va. 184, 394 S.E.2d 879 (1990).
"An appellate court may reverse a decision of the Civil
Service Commission for Deputy Sheriffs, W.Va. Code §
7-14-1 (1991), et seq., as clearly wrong or
arbitrary or capricious only if the Commission used a
misapplication of the law, entirely failed to consider an
important aspect of the problem, offered an explanation that
ran counter to the evidence before the Commission, or offered
an explanation that was so implausible that it could not be
ascribed to a difference in view or the product of Commission
expertise." Syllabus Point 3, Messer v. Hannah,
222 W.Va. 553');">222 W.Va. 553, 668 S.E.2d 182 (2008).
"Before the prosecution of a lawsuit may be barred on
the basis of res judicata, three elements must be
satisfied. First, there must have been a final adjudication
on the merits in the prior action by a court having
jurisdiction of the proceedings. Second, the two actions must
involve either the same parties or persons in privity with
those same parties. Third, the cause of action identified for
resolution in the subsequent proceeding either must be
identical to the cause of action determined in the prior
action or must be such that it could have been resolved, had
it been presented, in the prior action." Syllabus Point
4, Blake v. Charleston Area Med. Ctr., Inc., 201
W.Va. 469, 498 S.E.2d 41 (1997).
"Collateral estoppel will bar a claim if four conditions
are met: (1) The issue previously decided is identical to the
one presented in the action in question; (2) there is final
adjudication on the merits of the prior action; (3) the party
against whom the doctrine is invoked was a party or in
privity with a party to a prior action; and (4) the party
against whom the doctrine is raised had a full and fair
opportunity to litigate the issue in the prior action."
Syllabus Point 1, State v. Miller, 194 W.Va. 3');">194 W.Va. 3, 459
S.E.2d 114 (1995).
"The dismissal of criminal charges that prompted initial
disciplinary action against a public employee does not
preclude a public official from administering further
disciplinary action, including discharge." Syllabus
Point 2, Neely v. Mangum, 183 W.Va. 393');">183 W.Va. 393, 396 S.E.2d
"Seriously wrongful conduct by a civil service employee
can lead to dismissal even if it is not a technical violation
of any statute. The test is not whether the conduct breaks a
specific law, but rather whether it is potentially damaging
to the rights and interests of the public." Syllabus
Point 5, Mangum v. Lambert, 183 W.Va. 184');">183 W.Va. 184, 394
S.E.2d 879 (1990).
" W.Va. Code, 7-14-7 (1981), requires that dismissal of
a deputy sheriff covered by civil service be for just cause,
which means misconduct of a substantial nature directly
affecting the rights and interests of the public, rather than
upon trivial or inconsequential matters, or mere technical
violations of statute or official duty without a wrongful
intention." Syllabus Point 2, Mangum v.
Lambert, 183 W.Va. 184');">183 W.Va. 184, 394 S.E.2d 879 (1990).
Robert E. Fruth, II, was discharged from employment with the
Mason County Sheriff's Department based on two separate
incidents - he engaged in a verbal altercation with his
spouse in public while on duty and he intentionally wrecked
his police cruiser. He challenges the finding of just cause
for the discharge made by the Mason County Civil Service
Commission for Deputy Sheriffs ("the Commission")
that was upheld by the Circuit Court of Mason County by order
entered on July 29, 2016. Sgt. Fruth also claims he was
denied procedural due process and that the Commission's
practices and procedures were flawed. We find no error and
affirm the decision of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
incidents resulting in disciplinary action against Sgt. Fruth
took place shortly after his then-wife, Melissa Searls
(formerly Melissa Fruth), informed him that she wanted a
divorce. At the time, Ms. Searls was employed with the Mason
County Office of Emergency Medical Services (EMS) as an
Emergency Medical Technician (EMT). On February 10, 2011,
Sgt. Fruth, while on duty with the Sheriff's Department,
contacted an EMS dispatcher to ask where he could find Ms.
Searls. He also inquired as to the make and model of the
personal vehicle of her coworker, Trey Anderson. Sgt. Fruth
believed his wife was involved romantically with Mr.
that day, while still on duty, Sgt. Fruth confronted Ms.
Searls and Mr. Anderson in a restaurant parking lot. Ms.
Searls was on duty and her assigned ambulance was in the
parking lot, as was Mr. Anderson's personal vehicle.
While armed and in uniform, Sgt. Fruth reportedly blocked Mr.
Anderson's personal vehicle with his police cruiser and
engaged in a loud, verbal altercation with Ms. Searls and Mr.
Anderson. Ms. Searls and Mr. Anderson claimed that Sgt. Fruth
made threats toward them, including "I'll blow your
F-ing head off" and "You will get yours. I
to Deputy Robert Wilson, Sgt. Fruth's former co-worker,
Sgt. Fruth came to his home later that day and said that he
"had to do something to get [his wife's]
attention." The next day, in the early morning hours,
Sgt. Fruth again contacted the EMS dispatcher and learned
that Ms. Searls's ambulance would be dispatched on the
next emergency call. Shortly thereafter, Sgt. Fruth was
involved in a single car accident in his police cruiser. Sgt.
Fruth later claimed he was attempting to avoid a deer in the
road. According to Sgt. Clifford Varian, one of Sgt.
Fruth's co-workers and the first to arrive on the scene,
Sgt. Fruth told him that his wife was going to be the EMS
responding to the scene and requested that Sgt. Varian relay
to Ms. Searls that "everything will be okay" and to
ask "if they could work things out." Sgt. Fruth was
hospitalized following the accident.
that day, Ms. Searls filed a Domestic Violence Petition (DVP)
against Sgt. Fruth. Sgt. Fruth was immediately suspended with
pay, pending the disposition of the DVP. Soon after, Sgt.
Fruth was charged with two criminal violations of the DVP for
attempting to contact Ms. Searls through other persons and
for possession of ammunition. On February 24, 2011, the
Sheriff suspended Sgt. Fruth without pay pending disposition
of the criminal charges.
was dismissed on June 22, 2011, by the Family Court of Mason
County. After a hearing on the merits, the family court
concluded that Ms. Searls had failed to prove her allegations
of domestic violence or abuse by a preponderance of evidence.
The criminal charges relating to alleged violations of the
DVP, however, were still pending at that time. Accordingly,
Sgt. Fruth remained on suspension without pay.
January 4, 2012, Sgt. Fruth was indicted for reckless driving
and felony destruction of property based on the allegation
that he had intentionally wrecked his police cruiser. On May
8, 2012, the Sheriff instructed Cpl. Forrest Terry with the
Sheriff's Department to conduct an internal investigation
of Sgt. Fruth's conduct as a law enforcement officer and
to determine whether or not he should continue to serve in
that capacity. At that time, Sgt. Fruth remained on unpaid
following a pretrial hearing on the criminal charges against
him, Sgt. Fruth requested reinstatement on May 29, 2012. In
support of the request, Sgt. Fruth claimed that his
"court cases" had been dismissed - ostensibly
referencing that he had agreed to plead no contest to a
misdemeanor charge of failure to maintain control of a
vehicle in exchange for the dismissal of the felony
destruction of property and reckless driving charges. This
was the first request for reinstatement made by Sgt. Fruth in
the fifteen months since his suspension. The Sheriff denied
the request and explained that the decision was based on (1)
the February 11, 2011 vehicle accident, which the department,
after investigation, deemed intentional; (2) the anticipated
plea to the misdemeanor offense of failure to maintain
control; and (3) the pending criminal charges for violation
of the DVP. Sgt. Fruth then filed a motion for immediate
reinstatement with the Commission.
5, 2012, Sgt. Fruth's plea of no contest to failure to
maintain control of a vehicle was accepted by the circuit
court and the felony charges were dismissed. In the same
Motion and Order [for] Dismissal, the pending criminal
charges for violation of the DVP also were dismissed.
12, 2012, the Sheriff continued Sgt. Fruth's suspension
pending further investigation of the events on February 10
and 11, 2011. Although notified of his right to have the
matter heard by the Commission, Sgt. Fruth did not request
and was not afforded a predisciplinary hearing for his
continued suspension. On September 7, 2012, Cpl. Terry issued
his investigative report, recommending termination based on
Sgt. Fruth's on-duty conduct.
meantime, the Commission held a hearing on Sgt. Fruth's
motion for immediate reinstatement on September 13, 2012. The
Commission limited its inquiry to the February 11 and 24,
2011 suspensions, which specifically concerned only the
filing of the DVP and the associated criminal charges, all of
which had been dismissed. Accordingly, the Commission ordered
Sgt. Fruth's reinstatement and back pay from June 5,
2012, the date the plea deal was entered.
September 14, 2012, the investigative report recommending
termination was forwarded to the Sheriff who agreed with Cpl.
Terry's conclusion. The Sheriff notified Sgt. Fruth and
his legal counsel that he was recommending that Sgt. Fruth be
discharged and informed them of his right to a
predisciplinary hearing following an investigation pursuant
to West Virginia Code § 17-14C-3. Sgt. Fruth exercised
that right and on October 10, 2012, the Deputy Sheriffs'
Hearing Board ("Hearing Board") conducted a hearing
and unanimously agreed with the discharge of Sgt. Fruth. Sgt.
Fruth appealed to the Commission claiming, among other
things, that his procedural due process rights were violated
because he was not afforded predisciplinary hearings prior to
his suspensions. He also asserted that the Sheriff had merely
"re-packaged" the allegations the Commission had
already dismissed. The Commission overturned the discharge
and ordered that Sgt. Fruth be reinstated with back pay,
finding that there were procedural infirmities and that the
Sheriff's investigation did not contain any new grounds
Sheriff's Department appealed the Commission's
decision to the Circuit Court of Mason County. Sgt. Fruth
likewise appealed, arguing that his back pay award should
date from February 24, 2011, when he was suspended without a
predisciplinary hearing, as opposed to the date his plea of
no contest was entered. The circuit court remanded the case
to the Commission for a full evidentiary hearing to cure any
procedural due process violations and to allow evidence on
all allegations stemming from the Sheriff's
Commission held a full evidentiary hearing in January 2014
and concluded, unanimously, that just cause existed for Sgt.
Fruth's discharge. However, the initial decision lacked
findings of fact or conclusions of law. Sgt. Fruth appealed
to the Circuit Court of Mason County, asserting various
assignments of error, including the failure to make findings
of fact and conclusions of law. The circuit court again
remanded the case to the Commission, ordering it to make
sufficient findings to allow for meaningful appellate review.
Both parties submitted proposed findings of fact and
conclusions of law. The Commission entered an order with
findings and again concluded that Sgt. Fruth's
termination was supported by just cause. ...