Thorton v. Ward

          Submitted: March 6, 2019

          Appeal from the Circuit Court of Ohio County The Honorable Ronald E. Wilson, Judge Civil Action No. 16-C-368

          Patrick Morrisey Attorney General Thomas T. Lampman Assistant Attorney General Charleston, West Virginia Attorneys for the Petitioner

          Joseph J. John John & Werner Law Offices, PLLC Wheeling, West Virginia Attorney for the Respondent

          SYLLABUS BY THE COURT

         1. "'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)." Syllabus point 1, Straub v. Reed, 239 W.Va. 844, 806 S.E.2d 768 (2017).

         2. "In cases where the circuit court has amended 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 discretion standard and reviews questions of law de novo." Syllabus point 2, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).

          OPINION

          JENKINS JUSTICE

         Petitioner Joseph C. Thorton, ^[1] Executive Director of the Governor's Committee on Crime, Delinquency, and Corrections^[2] (the "Executive Director"), herein appeals from the January 23, 2018 order of the Circuit Court of Ohio County reversing the Executive Director's order decertifying Respondent William Ward ("Mr. Ward") as a law enforcement officer in the State of West Virginia. On appeal, the Executive Director raises two issues: (1) whether the circuit court erred by applying the incorrect statutes to define the scope of the Law Enforcement Professional Standards Subcommittee's^[3]("Subcommittee") authority and (2) whether the circuit court erred by incorrectly applying the due process protections in employment disputes to a proceeding governing law enforcement professional certification. Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we find that the circuit court erred by applying the incorrect statutory provisions to this matter and the proceedings below. Furthermore, because the circuit court applied the incorrect statutory provisions, its conclusion that the civil service hearing proceedings must precede decertification proceedings is also in error. Therefore, we reverse the order of the circuit court and remand the case for further proceedings consistent with this opinion.

         I. FACTUAL AND PROCEDURAL HISTORY

         In March 2015, Mr. Ward was a certified law-enforcement officer employed by the Wheeling Police Department with the rank of corporal.^[4] On March 25, 2015, Mr. Ward and his then-girlfriend, Paula Brown ("Ms. Brown"), ^[5] were involved in an incident inside Mr. Ward's Wheeling residence. On this day, an argument and physical altercation occurred seemingly over a series of text messages regarding Mr. Ward's contact with his former wife. Mr. Ward asked that Ms. Brown leave the premises and take her possessions and children with her.^[6] According to the Criminal Complaint, Ms. Brown then "went downstairs and took Mr. Ward's duty weapon, ID, and keys" before attempting to leave the residence with those items. The Criminal Complaint further alleges that Mr. Ward "got the weapon off of [Ms. Brown] and [he] went to call 911"; that he set his retrieved duty weapon down; that he recalled that Ms. Brown still had his ID and keys; and that he "ran down the stairs, caught [Ms. Brown] at the garage door and the force of their body weight broke the garage window." The Criminal Complaint indicates that Mr. Ward then "walked back into the kitchen where he noticed his duty weapon was missing again." At this point, Ms. Brown left the residence. It was later determined that Ms. Brown had "left the weapon at the residence and she had hid it in the garage above the light." On that same date, both Mr. Ward and Ms. Brown sought domestic violence protective orders, but those petitions were withdrawn or dismissed at the request of the respective parties.

         As a result of the incident, the Ohio County Sheriff's Department investigated and caused the filing of two criminal charges against Mr. Ward: (1) brandishing a weapon, in violation of West Virginia Code § 61-7-11 and (2) domestic battery, in violation of West Virginia Code § 61-2-28(a). Initially, Mr. Ward pleaded not guilty to the charges and was released on bond. One of the terms of Mr. Ward's bond was that he was prohibited from possessing a firearm. Additionally, the Wheeling Police Department placed Mr. Ward on administrative leave with pay from his employment subsequent to the arrest and pending an internal investigation. Following the conclusion of the internal investigation, in June 2015, the Chief of the Wheeling City Police Department, Shawn Schwertfeger ("Chief Schwertfeger"), recommended to the City of Wheeling that Mr. Ward be terminated.

         In February 2016, on the eve of trial, the special prosecutor, Ms. Brown, Mr. Ward, and the City of Wheeling reached essentially a pretrial diversion agreement on the pending criminal charges. Specifically, it was agreed that the brandishing charge would be dismissed with prejudice and the domestic battery charge would be resolved with Mr. Ward entering a provisional no contest plea. Additionally, the plea agreement continued a term of Mr. Ward's bond, whereby Mr. Ward remained unable to possess a firearm until October 2016.^[7] The Agreement also contained provisions that Mr. Ward would retain his employment as a police officer and would return to full time employment as a police officer over the course of the Agreement if the terms thereof were met. However "if Mr. Ward was found to have violated any term of the agreement he would be automatically found guilty of the underlying charge and be subject to a six (6) month jail sentence." The magistrate court approved that plea agreement by order entered April 25, 2016.

         While Mr. Ward's criminal case was pending, the Subcommittee learned of the incident and charges. As part of the end-of-year compliance check of all law enforcement officers' ongoing in-service training and firearms qualification requirements, Mr. Ward was flagged as not having kept up with the mandatory firearm qualifications. On September 10, 2015, the Subcommittee initiated communications with the Wheeling Police Department ("the Department"), informing them that the Subcommittee had flagged Mr. Ward regarding his firearms qualifications for the 2015 training year. When the Subcommittee inquired of the Department, the Department informed the Subcommittee that Mr. Ward was excused from that requirement due to him being on extended administrative leave with pay. The Department further informed the Subcommittee that Mr. Ward was on administrative leave because of a domestic violence related arrest. The next communication between the Subcommittee and the Department was again initiated by the Subcommittee. On October 1, 2015, the Subcommittee sent an email to the Department to "follow up on the charges against William Ward." The email further inquired as to whether the incident was "wrapped up or it is all still pending" and whether Mr. Ward was "currently on leave or has he separated from the department." Chief Schwertfeger responded the same day answering all the questions from the Subcommittee: he indicated that the charges were still pending; the City had not yet acted upon his recommendation of termination; and Mr. Ward remained on administrative leave with pay.

         Following a February 1, 2016 news report describing Mr. Ward's no-contest plea to the domestic battery charge, the Subcommittee informed Mr. Ward that his law enforcement officer certification would be reviewed. More specifically, the Subcommittee sent a notification letter to Mr. Ward dated March 8, 2016, stating that "[a]s a result of the provisional plea which you have entered in Ohio County Magistrate Court as part of Case No. 15-M-546 a review of the status of your certification as a law enforcement officer in West Virginia has been set."^[8]

         As a part of the Subcommittee review proceeding, the Subcommittee provided an "Overview of Appearance Before the LEPS Subcommittee," which included procedural information about the proceeding.^[9] On April 28, 2016, Mr. Ward, with counsel, appeared before the Subcommittee. The Subcommittee heard testimony from four witnesses and considered sixty-seven exhibits.^[10] Mr. Ward submitted two exhibits and gave his account of events. Mr. Ward's attorneys also "spoke with members [of the Subcommittee] concerning [Mr. Ward's] actions in the matter being reviewed and the disposition of the charges against him." During this proceeding, it appears the witnesses were not sworn and numerous witnesses were questioned by the Subcommittee while they were in the room together, rather than one at a time. The witnesses also were not subject to cross-examination, and there was no record made of the proceeding.

         After taking the evidence, the Subcommittee unanimously concluded that Mr. Ward was in violation of several law-enforcement professional standards.^[11] Based on those findings, on April 29, 2016, the Subcommittee issued an immediate stop work order and decertified Mr. Ward as a law enforcement officer. On May 26, 2016, the Subcommittee memorialized its decision in a written Position Statement ("Position Statement"). As a result, Mr. Ward was forbidden from taking or holding any sworn law enforcement position in West Virginia. The Subcommittee notified Mr. Ward that he could contest its decision pursuant to West Virginia Code of State Regulations § 149-1-1. On August 1, 2016, the City of Wheeling terminated Mr. Ward's employment.^[12]

         Mr. Ward then timely filed an appeal. Represented by counsel, Mr. Ward appeared before the Governor's Committee's Hearing Examiner^[13] on August 10, 2016, for a de novo review of his case. Mr. Ward had the opportunity to have an evidentiary hearing on the record, to be represented by counsel, to call and cross-examine witnesses, and to make arguments. During this review hearing, Mr. Ward did, in fact, advance several procedural and jurisdictional challenges, introduce an additional exhibit, and extensively cross-examine the Subcommittee's witnesses.^[14] On November 10, 2016, the Executive Director issued his Findings of Fact and Conclusions of Law and Final Ruling on Administrative Appeal ("Executive Director's Written Decision").^[15] Based on what he contends was an independent review of the hearing transcript and the record, the Executive Director ultimately agreed with the conclusions of the Subcommittee, adding that Mr. Ward's failure to disclose his inability to lawfully carry a firearm constituted an additional basis for his decertification.

         Mr. Ward timely appealed the Executive Director's Written Decision to the Circuit Court of Ohio County asserting several errors in the administrative hearing process. In its January 24, 2018 memorandum order reversing the Executive Director's Written Decision ("Final Order"), the circuit court found that "the statutory sanctions possessed by the . . . Subcommittee can not [sic] be applied to a city police officer if those sanctions would interfere with the officer's unequivocal right to exercise the due process rights established by West Virginia Code [§] 8-14-20. Those sanctions would only apply - if any remained - after those due process rights had been complied with [sic]." The circuit court further held that Mr. Ward "was subject to the civil service provisions of Article 14 of Chapter 8, section 20, and he could only be removed, discharged, suspended or reduced in rank or pay for just cause and he could not [be] removed, discharged, suspended or reduced in pay 'except as provided by the civil service provisions of this article.'"

         Accordingly, the circuit court held that Mr. Ward had a right to be furnished with a written statement of the reasons for the action taken against him and then given an opportunity to file a written answer furnished to the Policeman Civil Service Commission. Following such answer, he was entitled to a public hearing within a period of ten days from the filing of the charges in writing or his written answer. The circuit court found that the burden of proof at that hearing would be upon the City of Wheeling to show just cause for its actions. The circuit court determined that Mr. Ward was not provided with his rights under West Virginia law and that "[n]one of the proceeding that took place before Hearing Examiner Earl W. Maxwell is relevant to this decision. The . . . Subcommittee had no right to revoke the law enforcement certification of [Mr. Ward], a police officer with the city of Wheeling Police Department." Based on these findings, the circuit court reversed the order decertifying Mr. Ward and granted Mr. Ward's appeal. The Executive Director appeals from this Final Order.

         II. STANDARD OF REVIEW

         With respect to the applicable standard of review, this Court has held that:

"[o]n 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." ...