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Cox v. Town of Belle

Supreme Court of West Virginia

March 11, 2019

Darrick Cox, Plaintiff Below, Petitioner
v.
Town of Belle, West Virginia, Defendant Below, Respondent

          Kanawha County 17-AA-97

          MEMORANDUM DECISION

         Petitioner Darrick Cox, Respondent Town of Belle's former police chief, by counsel John F. Dascoli, appeals the March 15, 2018, order of the Circuit Court of Kanawha County that reversed the order of the Town of Belle's Police Service Commission and reinstated respondent's decision to terminate petitioner's employment. Respondent by counsel John R. Teare, Jr., filed a response in support of the circuit court's order. Petitioner filed a reply.

         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 Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         On December 12, 2016, the Charleston Gazette reported that Petitioner Darrick Cox, then respondent's police chief, was under federal investigation. That same day, respondent's mayor placed petitioner on paid administrative leave. The mayor claims he told petitioner that he (petitioner) was no longer allowed in respondent's Town Hall, where respondent's police department is located. On January 11, 2017, respondent's mayor demoted petitioner to the rank of patrolman, and notified petitioner that he would remain on administrative leave during the federal and local investigations of petitioner's alleged misconduct. On June 6, 2017, respondent served petitioner with a "Notice of Termination, Statement of Charges and Notice of a Right to a Hearing." The Statement of Charges alleged insubordination, embezzlement of evidence, falsifying departmental records, sale/purchase of a firearm without authorization by the owner of the firearm, and use of official position for personal gain that is prohibited by the West Virginia Ethics Act.

         Petitioner waived his right to a pre-disciplinary hearing and appealed his termination directly to respondent's Police Civil Service Commission (the "Commission"). The Commission convened a hearing on October 25, 2017. During opening statements, respondent's attorney claimed, "it's really two issues here": First, when the mayor placed petitioner on administrative leave, he told petitioner "not to be within the [police department] office or Town Hall" and petitioner violated that directive. Second, petitioner violated police department policy by purchasing a gun that had been evidence in a suicide case.

         At the Commission hearing, respondent's mayor testified that when he placed petitioner on administrative leave on December 12, 2016, he told petitioner that he (petitioner) was not allowed in Town Hall while he was on administrative leave. The mayor further testified that when he learned petitioner was in Town Hall on December 21, 2016, he sent a letter to all personnel, including petitioner, instructing that petitioner was not allowed in Town Hall while he was on administrative leave.

         Respondent's police officer, David Puffinbarger, testified that: (1) he asked petitioner to come to Town Hall on December 21, 2016, (while petitioner was on administrative leave) to help him prepare a computerized schedule; (2) petitioner complied and was in Town Hall for "[l]ess than ten minutes" helping him with the schedule; (3) he did not know petitioner was not supposed to be in Town Hall; and (4) the following week, he received a memo from the mayor that petitioner was not allowed in Town Hall while petitioner was on administrative leave.

         The next witness was the mother of a decedent who committed suicide with the gun at issue in this case. The decedent's mother testified that she asked the mayor, petitioner, and the new police chief for the gun used by the decedent in his suicide, but was told it could not be returned to her.

         The decedent's girlfriend testified that she purchased the gun and gave it to the decedent, that the gun was registered in the decedent's name, and, that following the decedent's death, she did not know the decedent's mother wanted the gun. The girlfriend also testified that petitioner called her, told her the gun was ready to be released, and that he could release it to her. She testified that she told petitioner she did not want the gun and that petitioner then offered to buy the gun from her for $150. She stated she signed a release for the gun and petitioner paid her $150. Thereafter, respondent entered evidence showing that the market value of the gun was about $300.

         Respondent's new police chief testified that he found the gun and the girlfriend's release for the gun in the police department's "gun locker."

         Petitioner testified that he was not notified that he was not allowed in Town Hall until he received the mayor's letter so notifying him, which was after he helped Officer Puffinbarger on December 21, 2016, with the computerized scheduling. Regarding the decedent's gun, petitioner testified as follows: The decedent's death was investigated and determined to be a suicide; thus, no crime was committed. He issued a memo instructing the officer who investigated the suicide to place the gun in the gun locker so it could be returned to the owner. The decedent's girlfriend came to the police station, saw the gun, and said, "I don't want this." He told the girlfriend he could keep the gun at the police station until she wanted it. Later, the girlfriend approached petitioner, told him she did not want the gun, and asked if he wanted to buy it from her. He knew the girlfriend and her family and wanted to help. He also believed she was the gun's lawful owner, so he agreed to buy the gun. The girlfriend signed the release stating that she was the gun's owner and he paid her $150 for the gun. However, he never took possession of the gun and, instead, left it in the gun locker at the police station along with the girlfriend's release. Petitioner also admitted that he might have made a "mistake" in purchasing the gun, but claimed he had done nothing that should cause him to lose his job.

          On cross-examination, petitioner identified the "Belle Police Department Policy and Procedure Manual" (the "Police Manual"). The "Processing Property" section of the Police Manual provides:

Property or evidence which has been discovered, gathered, or received in connection with departmental responsibilities will be processed in accordance with established departmental procedures. Members shall not convert to their own use, manufacture, conceal, falsify, destroy, remove, tamper with or withhold any property or evidence found in connection with an investigation or other police action, except in accordance with established departmental procedures.

         Finally, petitioner testified that "[t]o my knowledge, I did not speak with [the decedent's mother] regarding the weapon. . . . To my knowledge, [the ...


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