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Burner v. Martinsburg Police Civil Service Commission

Supreme Court of West Virginia

April 30, 2019

QUENTON BURNER AND ERIN GIBBONS, Petitioners Below, Petitioners
v.
MARTINSBURG POLICE CIVIL SERVICE COMMISSION, Respondent Below, Respondent

          Submitted: March 6, 2019

          Appeal from the Circuit Court of Berkeley County The Honorable Christopher C. Wilkes, Judge Civil Action Nos. 17-AA-1 AND 17-AA-2

          Christian K. Riddell Stedman & Riddell, PLLC Martinsburg, West Virginia Attorney for Petitioners

          Cy A. Hill Allison M. Subacz CIPRIANI & WERNER P.C. Charleston, West Virginia Attorneys for Respondent

          JUSTICE ARMSTEAD, deeming himself disqualified, did not participate in the decision of this case.

          JUDGE PAUL T. FARRELL, sitting by temporary assignment.

          CHIEF JUSTICE WALKER concurs and reserves the right to file a concurring opinion.

         SYLLABUS BY THE COURT

         1. "The provisions of the police civil service act, W.Va. Code §§ 8-14-6-24, which provide for the appointment, promotion, reduction, removal and reinstatement of all municipal police officers and other employees of paid police departments of Class I and Class II municipal corporations, are not exclusive. . . . The police civil service act, rather, excludes the enactment of only those measures which are inconsistent with the express provisions of the act." Syllabus point 2, in part, Morgan v. City of Wheeling, 205 W.Va. 34, 516 S.E.2d 48 (1999).

         2. "'The judgment of a circuit court affirming a final order of a police civil service commission, upon appeal therefrom as provided by statute, will not be reversed by this Court unless the final order of the commission was against the clear preponderance of the evidence or was based upon a mistake of law.' Syl. pt. 2, In re Appeal of Prezkop, 154 W.Va. 759, 179 S.E.2d 331 (1971)." Syllabus point 3, Bays v. Police Civil Service Commission of Charleston, 178 W.Va. 756, 364 S.E.2d 547 (1987).

          JENKINS, JUSTICE:

         Quenton Burner and Erin Gibbons (collectively "Petitioners") herein appeal from the October 3, 2017 order of the Circuit Court of Berkeley County denying Petitioners' appeal and petition for writ of mandamus, and affirming the final order issued by the Martinsburg Police Civil Service Commission ("Commission"). Petitioners challenge the circuit court's holding that the Commission's awarding points to a candidate on competitive examination for promotion based on education credentials did not violate the requirements of the Police Civil Service Act set forth in West Virginia Code §§ 8-14-6 to 8-14-24 (LexisNexis 2017). Having considered the briefs submitted on appeal, the appendix record, the parties' oral arguments, and the applicable legal authority, we find no error. Accordingly, we affirm the circuit court's final order.

         I.

         FACTUAL AND PROCEDURAL HISTORY

         On December 10, 2016, Corporal Quenton Burner ("Cpl. Burner") and PFC Erin Gibbons ("PFC Gibbons"), both of the Martinsburg Police Department, sat for competitive examinations for promotions to Sergeant and Corporal, respectively. Under Rule VII, Section 2 of the Martinsburg Police Commission's Rules and Regulations,

[a]pplicants for promotion shall be graded on a scale of a maximum of one-hundred (100) points. This shall consist of a maximum of fifty (50) points for the written examination, a maximum of forty (40) points for the personnel file review and a maximum of ten (10) points shall be based on seniority.

         With regard to the Personnel File Review, the maximum forty (40) points available for review of the applicant's personnel file are given as follows:

a) Efficiency Rating - A maximum of ten (10) points shall be awarded for review of efficiency rating. The Chief of Police shall submit to the Commission an efficiency rating on each candidate scheduled to take the oral interview. Efficiency ratings may be based on the following: absenteeism, accident rating, character and conduct, attitude, personal appearance, ability to work under pressure and on dangerous assignments, ability to meet and deal with others, ability to organize work, knowledge of duties, laws, ordinances and rules applicable to his/her work, accuracy and attention to pertinent details, emotional stability, leadership and promoting high morale.
b) Education - A maximum of ten (10) points shall be awarded based on the following:
• 10 points - Post graduate degree from an accredited college or university
•8 points - Bachelor's degree from an accredited college or university
•6 points - 3 years college completed at an accredited ...

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