Joseph C. THORTON, as Executive Director, Governor’s Committee on Crime, Delinquency, and Correction, Respondent Below, Petitioner
William M. WARD, Petitioner Below, Respondent
March 6, 2019
Syllabus by the Court
" ‘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).
"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).
from the Circuit Court of Ohio County, The Honorable Ronald
E. Wilson, Judge, Civil Action No. 16-C-368
Morrisey, Attorney General, Thomas T. Lampman, Assistant
Attorney General, Charleston, West Virginia, Attorneys for
J. John, John & Werner Law Offices, PLLC, Wheeling, West
Virginia, Attorney for the Respondent
Joseph C. Thorton, Executive Director of the Governor’s
Committee on Crime, Delinquency, and
Corrections (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
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
FACTUAL AND PROCEDURAL HISTORY
March 2015, Mr. Ward was a certified law-enforcement officer
employed by the Wheeling Police Department with the rank of
corporal. On March 25, 2015, Mr. Ward and his
then-girlfriend, Paula Brown ("Ms.
Brown"), 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. 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.
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.
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. 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.
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.
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."
part of the Subcommittee review proceeding, the Subcommittee
provided an "Overview of Appearance Before the LEPS
Subcommittee," which included procedural information
about the proceeding. On April 28, 2016, Mr. Ward, with
counsel, appeared before the ...