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Porter v. Brown

Supreme Court of Appeals of West Virginia

November 13, 2019

SONYA PORTER, Sheriff of Logan County, West Virginia, Petitioner
v.
JAMES H. BROWN, III, Respondent

          (Logan County No. 13-C-165).

          MEMORANDUM DECISION

         Petitioner Sonya Porter, Sheriff of Logan County ("Sheriff Porter"), appeals the July 26, 2018, order of the Circuit Court of Logan County. The circuit court ordered Sheriff Porter to pay Respondent James H. Brown, III ("Deputy Brown") $8, 136 in attorney's fees, plus $44.22 in costs pursuant to a mandamus action Deputy Brown filed seeking to compel Sheriff Porter to pursue and conclude an internal investigation into allegations of misconduct against him. On appeal, [1] Sheriff Porter asserts that the circuit court erred in its analysis of our statute addressing the procedure for investigating a deputy sheriff, W.Va. Code § 7-14C-1 et seq. (1995). Further, Sheriff Porter argues that the circuit court lacked subject matter jurisdiction over this matter and, therefore, did not have the authority to award attorney's fees to Deputy Brown.

         After review and for the reasons stated herein, we affirm the circuit court's order. Because we find no substantial question of law and no prejudicial error, a memorandum decision affirming the circuit court's order is appropriate under Rule 21(c) of the Rules of Appellate Procedure.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On November 9, 2012, Sheriff W. E. Hunter gave Deputy Brown a written "Notice of Internal Investigation" ("Notice"). It provided

an Internal Investigation has been ordered by the Sheriff in various allegation [sic] of misconduct made against you. The Investigation is in the early stages and a complete description of the potential violations is not possible at this time.[2] To the extent the Internal Investigation results in any recommendation for punitive action, specific allegations will be provided to you and you will be entitled to a hearing prior to any discipline more serious than counseling.
You are further informed that the Investigation will be conducted by Cpl. F. N. Ferrell who will report directly to me. This Investigation could lead to punitive action up to and including termination of employment. As such, the Investigation will be conducted pursuant to West Virginia Code 7-14C-1 through 5. You have the right to retain legal counsel to represent you at your expense should you desire.

         Additionally, the Notice provided that Deputy Brown was placed on "paid administrative leave during the pendency of this investigation and until further notice." The Notice set forth the following conditions Deputy Brown was required to follow during his "paid administrative leave": 1) attend all scheduled court dates, 2) obey all rules and regulations of the sheriff's department, 3) remain at his place of residence from 8:30 a.m. until 4:30 p.m. Monday through Friday unless another location is authorized, 4) respond to phone calls from the sheriff's office, 5) be reasonably available for investigative purposes, 6) "any secondary employment previously approved is no longer approved," 7) "surrender all the assigned equipment, uniforms, keys, etc." in his possession, and 8) do not exercise any authority of the sheriff's department or engage in any law enforcement activities. Regarding the sixth condition, Deputy Brown had secondary employment that he was forced to quit as a result of being placed on "paid administrative leave." See W.Va. Code § 7-14-15a (allowing deputy sheriffs to engage in paid police work in addition to their regular work as a deputy).

         Finally, the Notice provided that Corporal Ferrell "will contact you in the near future to schedule all necessary interviews." (Emphasis added). Aside from informing Deputy Brown that he would be contacted in the "near future," the Notice did not provide any timeframe addressing how long he would remain on "paid administrative leave."

         On January 1, 2013, Sonya Porter, the newly elected Sheriff, took office. Corporal Ferrell completed his investigation near the end of January 2013 and submitted a report to Sheriff Porter. Despite the Notice's statement that Corporal Ferrell "will contact you in the near future," Deputy Brown was not contacted during the course of Corpora Ferrell's investigation, nor was he interviewed prior to Corporal Ferrell completing his report. No explanation was provided to Deputy Brown as to why Corporal Ferrell completed his investigation without interviewing him.

         On April 26, 2013, Deputy Brown filed a petition for reinstatement with the Logan County Deputy Sheriffs' Civil Service Commission ("Commission"). In the petition, Deputy Brown asserted that he had, in effect, been suspended or removed pursuant to the Notice in November 2012. The petition provided that "[m]ore than five months have passed and . . . [Deputy Brown] has never been provided with a written statement of the reasons for the Sherriff's actions." Deputy Brown requested that the Commission convene, hold a hearing, and direct Sheriff Porter to reinstate him.

         On May 3, 2013, Sheriff Porter filed a response in opposition to Deputy Brown's petition. Sheriff Porter argued that the Commission lacked the authority to reinstate Deputy Brown because he had not been disciplined, rather, he was on paid administrative leave during an active internal investigation of misconduct. On May 8, 2013, Deputy Brown filed a reply with the Commission and made a second request for it to hold a hearing. On May 23, 2013, Deputy Brown made a third request for the Commission to hold a hearing and stated that if it failed to do so, he would seek a writ of mandamus before the circuit court in order to compel the hearing. The Commission did not schedule a hearing.

         On June 27, 2013, approximately eight months after being placed on indefinite "paid administrative leave," Deputy Brown filed a civil action seeking mandamus relief to compel: 1) the Commission to convene and hold a public hearing on his petition for reinstatement; and 2) Sheriff Porter to pursue and conclude the internal investigation. Deputy Brown requested attorney's fees and costs. The circuit court held a hearing and, by order entered on August 26, 2013, determined that "commissioners need to be appointed to the . . . Commission before the [c]ourt considers [Deputy Brown's] requested relief against it[, ]" and that Deputy Brown "may proceed with his petition for his requested relief against [Sheriff Porter]."

         Shortly after the circuit court ruled that Deputy Brown could proceed with his petition for relief against Sheriff Porter, she hired a new employee, Corporal Mayes, who was directed to investigate the allegations against Deputy Brown.[3] On October 4, 2013, Corporal Mayes interviewed Deputy Brown. Thereafter, the internal investigation concluded, and Sheriff Porter issued a Notice of Termination, Statement of Charges, and Notice of a Right to a Hearing on December 16, 2013.[4]

         After holding a hearing on all pending motions on January 27, 2014, the circuit court issued an order on February 7, 2014, ordering the Commission to "convene a hearing" on Deputy Brown's petition for reinstatement on or before May 11, 2014.[5]Further, the order provided that all other matters related to Deputy Brown's petition for mandamus relief would be held in abeyance.

         The Commission held a hearing on Deputy Brown's petition for reinstatement on April 4, 2014. In a ruling issued on June 19, 2014, the Commission entered an order

styled "Logan County Deputy Sheriff's Civil Service Commission Findings of Fact, Conclusions of Law and Final Order." Among other things, the Commission concluded that although not specifically provided for by statute, administrative leave with pay during the pendency of an investigation is within the authority of a sheriff, but the length and scope of the investigation must be reasonable in light of the allegations or complaints of misconduct. The Commission also determined that notice of the allegations must be given to the deputy without delay. Further, the Commission decided that an action of administrative leave with pay must follow the letter and spirit of the statute in terms of scope and reasonableness. The Commission specifically concluded that Deputy Brown was not given notice of the allegations he faced, and the length of Sheriff Porter's investigation exceeded its scope and reasonableness. Accordingly, the Commission ordered that Deputy Brown be reinstated to full duties as a Logan County deputy sheriff. Deputy Brown's counsel was ordered to submit an itemized statement of fees and expenses for consideration and further order of the Commission.

Porter v. Brown, No. 15-1213, 2017 WL 1345258, at *3 ( W.Va. April 12, 2017) (memorandum decision) ("Porter I").[6]

         We emphasize that Sheriff Porter did not file an appeal after the Commission entered its order reinstating Deputy Brown to the sheriff's department. Instead, in September 2014, Deputy Brown appealed the Commission's June 19, 2014, order to the circuit court (case number 15-AA-2), "raising several errors of fact and law." Deputy Brown sought back pay in his appeal of the Commission's order. Sheriff Porter filed a motion to dismiss Deputy Brown's appeal.

         After holding a hearing on Sheriff Porter's motion to dismiss Deputy Brown's appeal, the circuit court issued an order in May 2015: 1) granting Sheriff Porter's motion to dismiss Deputy Brown's appeal, 2) ordering Deputy Brown's counsel to submit an invoice to the Commission for attorney's fees attributable to their work before the Commission, 3) ordering the Commission to enter a "Final Order" setting forth the exact amount of the attorney's fees the Commission awards Deputy Brown's counsel, and 4) ordering Deputy Brown's counsel to submit an invoice to the circuit court for fees and costs that were incurred in the mandamus action.[7]

         On September 21, 2015, the Commission entered a "Final Order Granting Appellant [Deputy Brown] Fees and Costs" and ordered payment of $10, 757.48 to Deputy Brown. On November 19, 2015, the circuit court entered an order specifying that Sheriff Porter was to pay an attorney fee award of $7, 262.22. In December 2015, Sheriff Porter appealed the November 19, 2015, circuit court order to this Court, raising four assignments of error.[8]

         On April 12, 2017, this Court remanded the case back to the circuit court for further proceedings "as the parties and the circuit court deem necessary and appropriate." Porter I at *6. In Porter I, the Court noted, "[w]e are being asked to determine the appropriateness of attorney's fees in a vacuum. We cannot possibly assess the appropriateness of the attorney's fees when we are unable to determine if the litigation itself was appropriate. What findings of fact and conclusions of law supported the award of attorney's fees?" Id.

         Following remand, the circuit court held a hearing on these outstanding issues. By order entered on July 26, 2018, the circuit court ruled: (1) that the paid administrative leave imposed upon Deputy Brown by Sheriff Porter "is determined to be discipline and punishment"; (2) that the Commission properly exercised jurisdiction over Deputy Brown's petition for reinstatement "as well as over his case for those purposes for which the Circuit Court compelled it to hold a hearing, and that, under the circumstances of this case, had jurisdiction to review the internal investigative activities of deputy sheriffs by the sheriff and the procedure for investigation and pre-disciplinary hearings of deputy sheriffs"; (3) that the circuit court properly exercised jurisdiction over the petition for a writ of mandamus that was filed by Deputy Brown and "could properly issue the same as it did in this case"; and (4) that Sheriff Porter pay Deputy Brown's attorney's fees in the amount of $8, 136, plus costs of $44.22.

         Following entry of this order, Sheriff Porter filed the present appeal.

         II. ...


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