ROBERT MATHENY, SHERIFF OF HARRISON COUNTY, Plaintiff Below, Petitioner
LIEUTENANT GREGORY SCOLAPIO, Defendant Below, Respondent
Submitted: September 20, 2017
from the Circuit Court of Harrison County Honorable Robert B.
Stone, Judge Civil Action No. 15-C-205-2
L. Roberts Harrison County Prosecutor's Office
Clarksburg, West Virginia Attorney for the Petitioner
Harrold, III McNeer, Highland, McMunn and Varner, L.C.
Clarksburg, West Virginia Attorney for the Respondent
R. Teare, Jr. Spilman Thomas & Battle, PLLC Charleston,
West Virginia Attorney for Amicus Curiae, West Virginia
BY THE COURT
"The standard of appellate review of a circuit
court's order granting relief through the extraordinary
writ of mandamus is de novo." Syllabus point 1,
Staten v. Dean, 195 W.Va. 57, 464 S.E.2d 576 (1995).
"West Virginia Rule of Civil Procedure 24 . . . allows
intervention of right in an action if an applicant meets four
conditions: (1) the application must be timely; (2) the
applicant must claim an interest relating to the property or
transaction which is the subject of the action; (3)
disposition of the action may, as a practical matter, impair
or impede the applicant's ability to protect that
interest; and (4) the applicant must show that the interest
will not be adequately represented by existing parties."
Syllabus point 2, in part, State ex rel. Ball v.
Cummings, 208 W.Va. 393, 540 S.E.2d 917 920 (1999).
"A statutory provision which is clear and unambiguous
and plainly expresses the legislative intent will not be
interpreted by the courts but will be given full force and
effect." Syllabus point 2, State v. Epperly,
135 W.Va. 877, 65 S.E.2d 488 (1951).
"It is well established that the word 'shall, '
in the absence of language in the statute showing a contrary
intent on the part of the Legislature, should be afforded a
mandatory connotation." Syllabus point 1, Nelson v.
West Virginia Public Employees Insurance Board, 171
W.Va. 445, 300 S.E.2d 86 (1982).
" W.Va. Code § 7-14C-3 (1995) (Repl. Vol. 2006)
contemplates two distinct types of hearings. The first type
of hearing, which is governed by W.Va. Code §§
7-14C-3(a&b), is a predisciplinary hearing, which is
conducted before disciplinary action has been taken and is
held before a hearing board. Alternatively, the second type
of hearing, which is governed by W.Va. Code §
7-14C-3(b), is conducted after disciplinary action in the
form of 'discharge, suspension or reduction in rank or
pay' has been taken and is held in accordance with the
provisions of W.Va. Code § 7-14-17 (1996) (Repl. Vol.
2006)." Syllabus point 6, Burgess v. Moore, 224
W.Va. 291, 685 S.E.2d 685 (2009).
"A statute should be so read and applied as to make it
accord with the spirit, purposes and objects of the general
system of law of which it is intended to form a part; it
being presumed that the legislators who drafted and passed it
were familiar with all existing law, applicable to the
subject matter, whether constitutional, statutory or common,
and intended the statute to harmonize completely with the
same and aid in the effectuation of the general purpose and
design thereof, if it terms are consistent therewith."
Syllabus point 5, State v. Snyder, 64 W.Va. 659, 63
S.E. 385 (1908).
petitioner herein and plaintiff below, Robert Matheny,
Sheriff of Harrison County ("Sheriff Matheny" or
"the Sheriff"), appeals from an order entered
August 9, 2016, by the Circuit Court of Harrison County. By
that order, the circuit court granted mandamus relief to the
respondent herein and defendant below, Lieutenant Gregory
Scolapio ("Lieutenant Scolapio"), finding that he
was entitled to receive a hearing before the Harrison County
Civil Service Commission for Deputy Sheriffs
("Commission") regarding the Sheriff's decision
to terminate his employment. On appeal to this Court, Sheriff
Matheny assigns error to the circuit court's ruling,
arguing that Lieutenant Scolapio was not entitled to receive
a civil service hearing. Lieutenant Scolapio, through a
cross-assignment of error, challenges the circuit court's
decision to permit the Sheriff to intervene in the subject
proceedings. Upon a review of the parties' arguments, the
record designated for appellate consideration, and the
pertinent authorities, we conclude that the circuit court
correctly determined that Lieutenant Scolapio was entitled to
receive both a pre-disciplinary hearing board hearing and a
hearing before the Commission. We further find that it was
proper to permit Sheriff Matheny to intervene in these
proceedings. Accordingly, the August 9, 2016, order of the
Circuit Court of Harrison County is affirmed.
AND PROCEDURAL HISTORY
Scolapio was the supervisor in charge of the bailiff division
and assisted with courthouse security for the Harrison County
Family Court. On January 12, 2015, a circuit court juror
brought a cooler containing his lunch into the courthouse and
passed through courthouse security; thereafter, the cooler
was left unattended in a hallway in the courthouse.
Lieutenant Scolapio allegedly was requested to assist with
determining whether the unattended cooler was a
"suspicious package" and allegedly failed to
respond to such request for assistance. Thereafter, the
Sheriff initiated an internal investigation and issued a
letter of suspension to Lieutenant Scolapio on January 20,
2015, which immediately suspended him with pay. The letter
further proposed that Lieutenant Scolapio be terminated and
provided notice of his right to a hearing before a hearing
board in accordance with W.Va. Code § 7-14C-3 (1995)
(Repl. Vol. 2015).
Scolapio, bycounsel, invoked his right to a pre-disciplinary
hearing board hearing by letter dated January 21, 2015. The
hearing was held on February 18, 2015. By decision dated
February 26, 2015, the hearing board found "reasonable
grounds" to terminate Lieutenant Scolapio's
employment with the Harrison CountySheriff's Department.
On February 26, 2015, Lieutenant Scolapio's status was
changed from "suspended with pay" to
March 12, 2015, Lieutenant Scolapio filed a notice of appeal
to the Commission, requesting a full, de novo,
evidentiary hearing. By decision dated April 23, 2015, the
Commission denied Lieutenant Scolapio's request for a
hearing and stated that it would decide the matter based upon
the record from the hearing board proceedings.
Scolapio then filed a petition for writ of mandamus in the
Circuit Court of Harrison County on May 14, 2015, seeking to
compel the Commission to provide him a de novo
evidentiary hearing. By order entered August 9, 2016, the
circuit court concluded that Lieutenant Scolapio was entitled
to both a pre-disciplinaryevidentiaryhearing before the
hearing board and a de novo evidentiary hearing
before the Commission. Sheriff Matheny now appeals from the
circuit court's decision to this Court.
case sub judice is before this Court on appeal from
the circuit court's order granting mandamus relief to
Lieutenant Scolapio. We previously have held that "[t]he
standard of appellate review of a circuit court's order
granting relief through the extraordinary writ of mandamus is
de novo." Syl. pt. 1, Staten v. Dean, 195 W.Va.
57, 464 S.E.2d 576 (1995). Accord Syl. pt. 1,
Harrison Cty. Comm'n v. Harrison Cty. Assessor,
222 W.Va. 25, 658 S.E.2d 555 (2008) ("A de novo
standard of review applies to a circuit court's decision
to grant or deny a writ of mandamus.").
that the circuit court awarded relief in mandamus, below, we
also must consider whether the elements for granting a writ
of mandamus have been satisfied. In this regard, we have held
"[a] writ of mandamus will not issue unless three
elements coexist-(1) a clear legal right in the petitioner to
the relief sought; (2) a legal duty on the part of respondent
to do the thing which the petitioner seeks to compel; and (3)
the absence of another adequate remedy." Syllabus Point
1, State ex rel. Billy Ray C. v. Skaff, 190 W.Va.
504, 438 S.E.2d 847 (1993); Syllabus Point 2, State ex
rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170
S.E.2d 367 (1969).
Syl. pt. 2, Staten v. Dean, 195 W.Va. 57, 464 S.E.2d
576. Accord Syl. pt. 2, Myers v. Barte, 167
W.Va. 194, 279 S.E.2d 406 (1981) ("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
insofar as the assignments of error at issue herein are
resolved by the governing statutory law, we must determine
whether the circuit court properly applied and interpreted
the same. In this respect, we have held that
"[i]nterpreting a statute or an administrative rule or
regulation presents a purely legal question subject to de
novo review." Syl. pt. 1, Appalachian Power Co.
v. State Tax Dep't of West Virginia, 195 W.Va. 573,
466 S.E.2d 424 (1995). Accord Syl. pt. 1,
Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459
S.E.2d 415 (1995) ("Where the issue on an appeal from
the circuit court is clearly a question of law or involving
the interpretation of a statute, we apply a de novo
standard of review."). Mindful of these standards, we
proceed to consider the parties' arguments.