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In re Atterson

Supreme Court of West Virginia

June 8, 2018

In Re: Bryan M. Atterson

          Raleigh County 15-AA-2-H

          MEMORANDUM DECISION

         Petitioner the West Virginia Law Enforcement Professional Standards Subcommittee ("the LEPS Subcommitee"), by counsel Celeste Webb-Barber, appeals the May 8, 2017, order of the Circuit Court of Raleigh County reversing Director W. Richard Staton's order affirming the LEPS Subcommittee's decertification of Respondent Bryan M. Atterson as a law enforcement officer. Respondent, by counsel Carl W. Roop, filed his response.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Respondent Atterson was employed as a police officer with the City of Beckley Police Department ("the police department") from approximately 2009 through 2014. On September 10, 2013, he was arrested and charged with one count of domestic battery and one count of unlawful restraint. As a result of the arrest, he was placed on paid administrative leave by the police department. According to the circuit court, on March 28, 2014, respondent entered into an agreement with the State wherein he entered into a provisional plea of guilty to a new criminal charge of battery and the two original charges of domestic battery and unlawful restraint were dismissed.[1] Pursuant to the agreement, he was sentenced by the circuit court to sixty days of incarceration and one year of probation. However, the sentence and plea were suspended by the court in lieu of a one-year pretrial diversion agreement. The terms of that agreement required respondent not to incur any additional criminal charges between March 28, 2014, and March 28, 2015. If successful, the criminal charge would be dismissed. If he was arrested during that period, the provisional plea of guilty would be automatically entered and the sentence imposed. The agreement also required respondent to enter into a one-year period of psychological treatment for behavioral problems.[2] At that time, respondent was placed back on active duty by the police department.

         In April of 2014, the LEPS Subcommittee became aware of respondent's provisional plea of guilty. Following an initial review, the members directed staff of the LEPS Subcommittee to set a formal review of respondent's certification at their May 29, 2014, meeting. Respondent was notified of the meeting and was further invited to attend and present any statements and/or information to the LEPS Subcommittee regarding the circumstances of the provisional plea agreement and why his certification as a West Virginia law enforcement officer should remain active.

         On May 29, 2014, respondent appeared with his counsel, Christopher Davis, and addressed the members of the LEPS Subcommittee. Several law enforcement witnesses from various departments and a special investigator for the Raleigh County Prosecutor's Office also appeared and addressed respondent's certification review. According to respondent, without any citation to the record, each of the members of law enforcement, the prosecuting attorney, and the investigator all appeared and requested that respondent be recertified. The members of the LEPS Subcommittee then voted to revoke respondent's certification and decertify him as a West Virginia law enforcement officer. On May 30, 2014, respondent was issued an "Order to Stop Working" by certified mail and advised of his right to appeal the LEPS Subcommittee's decision to the Chair of the Governor's Committee on Crime, Delinquency and Correction, within ten days of the notice. Respondent then obtained an Order to Set Aside his underlying provisional plea agreement from the Circuit Court of Raleigh County. That order remanded the matter back to the magistrate court for disposition. On that same date, Magistrate Massie entered an order removing any specific reference to the provisional plea of guilty, instead simply referencing a pretrial diversion.

         On June 3, 2014, counsel for respondent filed a written request for reconsideration with the Subcommittee, which included additional documentation, including the revised court order. The LEPS Subcommittee then scheduled the request for reconsideration to be addressed at its June 26, 2014, meeting. During that meeting, respondent and his counsel made the LEPS Subcommittee aware of the new order and submitted additional documents related to the legality of pretrial diversions. The LEPS Subcommittee chose to stand by its prior ruling of decertification and directed LEPS staff to draft a formal position statement setting forth that decision.

         During its next meeting on July 31, 2014, the LEPS Subcommittee approved/ratified its position statement revoking respondent's West Virginia law enforcement certification. Upon receipt of the same, respondent timely appealed that decision to W. Richard Staton, Director of the West Virginia Division of Justice and Community Services, who also serves as the Chair of the Governor's Committee on Crime, Delinquency, and Correction. Director Staton referred respondent's appeal to Administrative Law Judge David Adkins ("the ALJ") to develop a factual record and provide a recommended decision to Director Staton.

         The parties conducted discovery, during which a potential witness conflict arose, necessitating respondent's original counsel to withdraw as counsel. Ashley Lockwood was then retained by respondent. On November 5, 2014, the hearing on the appeal began, and testimony and evidence were taken before a court reporter and the ALJ for three days. In January of 2015, the ALJ issued his recommended decision, reversing the LEPS Subcommittee's decision to revoke certification.[3] However, Director Staton determined that there was substantial and sufficient evidence presented to the LEPS Subcommittee and the ALJ to support a rational conclusion that respondent's conduct was a violation, warranting revocation of his law enforcement certification. Thus, Director Staton rejected the ALJ's recommended decision and affirmed the LEPS Subcommittee's findings. Respondent appealed Director Staton's decision to the circuit court.

         At the conclusion of that appeal, the circuit court entered its May 8, 2017, "Order Reversing and Setting Aside the Memorandum Opinion Issued by W. Richard Staton, Executive Director of the Governor's Committee on Crime and Delinquency and Correction dated the 3rdday of March, 2015, and Ordering the Recertification of Bryan M. Atterson as a Police Officer and Ordering That All Records Regarding the Decertification of Bryan M. Atterson be Expunged and or Sealed and that any Request for Information be Immediately Corrected Indicating that Bryan M. Atterson is and has Continually been a Certified Police Officer." In that order, the circuit court found that Director Staton's decision was in violation of the constitution. It also found that Director Staton's decision was clearly wrong in view of the reliable, probative, and substantial evidence contained in the record. It held that any reasonable view of the evidence leads the circuit court to conclude that all but one of the key findings were proven to be clearly wrong. It went on to find that Director Staton's decision was arbitrary and capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. The circuit court pointed to the detailed analysis of approximately thirty hours of testimony considered by the ALJ, stating that the ALJ's determination of the value of each witness's testimony was based upon more than just their words - including their demeanor, appearance, and the appearance of bias or hostility. The ALJ provided a detailed discussion of the testimony of Merrily McAuliffe, the girlfriend/companion of respondent who testified only before the ALJ and not the LEPS Subcommittee. Thereafter, the circuit court concluded that the decision of the LEPS Subcommittee was arbitrary and capricious because it was not supported by evidence; the decision of the Director was clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; and the decision of the Director was arbitrary and capricious and unsupported by the clear evidence in this case because the Director disregarded the credibility and weight determinations made by the ALJ. The circuit court then adopted the decision of the ALJ in its entirety and overruled and set aside the order decertifying respondent as a police officer. The order also expunged respondent's record as to this matter. Petitioner appeals from that order.[4]

         This Court has previously established the standards for our review of a circuit court's order deciding an administrative appeal as follows:

On appeal of an administrative order from a circuit court, this Court is bound by the statutory standards contained in W.Va. Code § 29A-5-4(a) and reviews questions of law presented de novo; findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong.

Syl. Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). In addition,

[i]n cases where the circuit court has [reversed] the result before the administrative agency, this Court reviews the final order of the circuit court and the ultimate disposition by it of an administrative law case under an abuse of ...

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