Thorton v. Ward

         Submitted: March 6, 2019

          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).

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          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

          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")

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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.

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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 ...