(Kanawha County 18-AA-220)
Simona Southall, by counsel Alan L. Pritt, appeals the order
of the Circuit Court of Kanawha County, entered on September
20, 2018, that reversed the May 30, 2018, decision of the
West Virginia Public Employees Grievance Board, favorable to
Ms. Southall, after Ms. Southall was terminated from her
position as a parole officer. Respondent West Virginia
Division of Corrections appears by counsel Patrick Morrisey
and Briana J. Marino.
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 briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Southall was a highly-regarded parole officer with the West
Virginia Division of Corrections ("the division"),
with the distinction of having been nominated regionally by
her supervisor for the "employee of the year"
award. In June of 2017, federal agents executed a search
warrant on the home she had long shared with her boyfriend,
Jonathan Brockman, and where the pair was raising a child.
Agents seized a shocking amount of suspect material from the
home, including nearly forty pounds of marijuana, more than
130 grams of oxycodone, a money-counting machine, eleven
firearms, and more than $182, 000. Mr. Brockman ultimately
was indicted, along with twenty-two other individuals, on
federal drug charges. To date, it appears that Ms. Southall
after the raid on the shared home, Ms. Southall reported the
search to her supervisor, and he, in turn, filed his own
report. The division placed Ms. Southall on a
non-disciplinary, unpaid, ninety-day suspension, pending
further inquiry. Prior to the expiration of the suspension,
the division terminated Ms. Southall's employment. Before
the termination, Ms. Southall filed a grievance with the West
Virginia Public Employees Grievance Board ("the
grievance board") challenging the suspension and seeking
back pay, and upon termination she filed a second grievance
challenging that decision. The grievances were consolidated
and, after referring the matters to an administrative law
judge for hearings and a recommended decision, the grievance
board ordered Ms. Southall reinstated with an award of back
pay. The division appealed the grievance board's final
order to the Circuit Court of Kanawha County, which reversed
the grievance board decision by order entered on September
circuit court explained that the findings and conclusions
adopted by the grievance board were unworthy of deference
because "reasonable minds cannot differ on the issue of
whether [Ms.] Southall's actions, or inactions, created
an appearance of impropriety that adversely reflected on the
integrity of [Ms. Southall], her position, and the Division
of Corrections." Ms. Southall does not assign particular
error to the circuit court's order, but generally
presents the question of whether the circuit court erred in
its reversal. Employing the same standard as that by which
the circuit court reviewed the grievance board
decision (see syllabus point 1, Martin
v. Barbour Cty. Bd. of Educ., 228 W.Va. 238, 719 S.E.2d
406 (2011)), we find that the circuit court correctly found
that the grievance board decision is contrary to law and Ms.
Southall was discharged for good cause.
termination is effected for good cause when occasioned upon
"misconduct of a substantial nature directly affecting
the rights and interest of the public, rather than upon
trivial or inconsequential matters, or mere technical
violations of statute or official duty without wrongful
intention." Syl. Pt. 1, in part, Oakes v. W.Va.
Dep't of Fin. & Admin., 164 W.Va. 384, 264
S.E.2d 151 (1980). In the context of public safety,
"circumstances which have been considered just cause
[for dismissal] are involvement in activity which casts
aspersions or doubt on a law enforcement officer's
honesty and integrity and which directly affects the
public's rights and interests." State ex rel.
Ashley v. Civil Svc. Comm'n, 183 W.Va. 364, 368, 395
S.E.2d 787, 791 (1990). Consistent with this expectation of
integrity in protective services, the division, in its policy
directives manual, describes conduct required of its officers
as that, "both on and off duty[, which] will not
discredit either themselves, other employees, or the
[d]ivision" and further "creates and maintains
respect" for the division. Employees are pointedly
directed to avoid any action which might "affect
adversely the confidence in the public integrity" of the
Southall's involvement with the activity in her home,
while not fully known, is unacceptable under the standards
described above. Special Agent Jennifer Wilson, a Federal
Bureau of Investigations drug task force coordinator,
testified at Ms. Southall's grievance hearing and
described the search of the home and the seized contraband.
Through Agent Wilson's testimony, the division submitted
numerous photographs taken during the raid showing the
placement of seized items in the home. Notably, a pungent bag
of marijuana was found in a shed behind the home, a
"bale" of marijuana was found under a deck on the
back of the home, and pills were found in a bathrobe in the
master bath and in tins and bags in the kitchen. Agents found
"bundles of money, multiple places in the bedroom,"
primarily in ten-dollar and twenty-dollar denominations. A
utility room housed a money-counting machine and a weapon on
a tripod that possibly pointed out a window. Searchers
collected additional firearms throughout the home, from spots
that included the top of the microwave oven and the
refrigerator. A substance used for "cutting" heroin
was found in a child's play area, and the search of that
area also bore a half-gallon bag of marijuana and scale.
Agent Wilson described the home as "a textbook location
of a drug dealer" and concluded that no one-particularly
someone with law enforcement training-could live in the home
unaware of the illegal drug trafficking conducted there.
Moreover, Agent Wilson testified that the raid on the shared
home was conducted in the investigation of a long-term and
substantial criminal enterprise, and that Mr. Brockman was
well-known in the community for illegal drug activity.
to Agent Wilson's testimony, Ms. Southall's
supervisors testified that the seizure undermined Ms.
Southall's credibility, judgment, and ability to perform
the essential functions of her job. We believe that the
supervisors' statements espouse the practical
considerations here, and we thus find that the application of
the law leads only to the conclusion that Ms. Southall, at a
minimum, either willfully or incompetently ignored
substantial evidence of drug trafficking occurring under her
nose, in the home in which she and Mr. Brockman raised a
child. Ms. Southall's "involvement . . . casts
aspersions or doubt on [her] honesty and integrity and . . .
directly affects the public's rights and interests."
Ashley, 183 W.Va. at 368, 395 S.E.2d at 791. The
circuit court skillfully undertook this analysis, found that
the grievance board decision was contrary to law, and
concluded that Ms. Southall was terminated for good cause. We
find no error.
foregoing reasons, we affirm.
CONCURRED IN BY: Chief Justice Elizabeth D. Walker Justice
Margaret L. Workman Justice Tim Armstead Justice Evan H.
DISSENTING: Justice ...