Div. of Justice & Cmty. Servs. v. Fairmont State Univ.

• Decision Date: 21 November 2019
• Docket Number: No. 18-0429,18-0429
• Citation: 242 W.Va. 489,836 S.E.2d 456
• Court: West Virginia Supreme Court
• Parties: DIVISION OF JUSTICE AND COMMUNITY SERVICES, and Law Enforcement Professional Standards Subcommittee, Petitioners v. FAIRMONT STATE UNIVERSITY, Respondent

242 W.Va. 489

836 S.E.2d 456

DIVISION OF JUSTICE AND COMMUNITY SERVICES, and Law Enforcement Professional Standards Subcommittee, Petitioners

v.FAIRMONT STATE UNIVERSITY, Respondent

No. 18-0429

Supreme Court of Appeals of West Virginia.

Submitted: September 11, 2019

Filed: November 21, 2019

Patrick Morrisey, Attorney General, Kelli D. Talbot, Senior Deputy Attorney General, Charleston, West Virginia, Counsel for the Petitioners

John F. Dascoli, Esq., Charleston, West Virginia, Counsel for Amicus Curiae, West Virginia State Lodge of the Fraternal Order of Police, and West Virginia Deputy Sheriffs’ Association

Rebecca Pomeroy, Esq., Bailey & Glasser LLP, Charleston, West Virginia, Counsel for the Respondent

HUTCHISON, Justice:

In this appeal from the Circuit Court of Marion County we are asked to examine the Law-Enforcement Training and Certification Act ("the Act"), contained in West Virginia Code §§ 30-29-1 to - 13. Pursuant to the Act, a state university decided to create a new law-enforcement-training academy for senior university students majoring in criminal justice studies. The university filed an application with the state agency that oversees law-enforcement training, seeking authorization to establish and operate the academy. The proposed academy met or exceeded the requirements of both the Act and the regulations adopted under the Act. However, the state agency refused the application, claiming that there was "no need" for a new academy.

The circuit court reversed the state agency’s decision, finding it was arbitrary, capricious, and unsupported by law, and ordered that the agency approve the university’s application. As set forth below, we find no error and affirm the circuit court.¹

I. Factual and Procedural Background

The petitioner in this case is a government agency the parties call "LEPS" or the "LEPS subcommittee," their abbreviation for the Law-Enforcement Professional Standards Subcommittee of the Governor’s Committee on Crime, Delinquency and Correction. See W.Va. Code §§ 30-29-1(5) and (9) (2018).² The LEPS subcommittee exists, in part, to "[r]eview and administer programs for qualification, training and certification of law-enforcement officers in the state[.]" W.Va. Code § 30-29-2(a)(1) (2015). Under West Virginia law, "a person may not be employed as a law-enforcement officer by any West Virginia law-enforcement agency ... unless the person is certified" by LEPS "as having met the minimum entry level law-enforcement qualification and training program requirements[.]" W.Va. Code § 30-29-5(a) (2015).

LEPS also approves and authorizes the academies that conduct training for law-enforcement officers.³ By statute, LEPS is required to promulgate rules that "[e]stablish standards governing the establishment and operation of the law-enforcement training academies, including regional locations throughout the state [.]" W.Va. Code § 30-29-3(a)(2) (2015) (emphasis added). LEPS is also required to create rules setting the qualifications for instructors at the training academies. W.Va. Code § 30-29-3(a)(3). By statute, the rules promulgated by LEPS must include "standards governing the training, firearms qualification and initial ... professional certification" of new law-enforcement officers, as well as "the entry-level law-enforcement training curricula." W.Va. Code § 30-29-3(a)(6). For instance, by rule, LEPS currently requires entry-level law-enforcement officers to receive a minimum of 850 hours of training. 149 C.S.R. § 2.7.1 (2018).⁴

LEPS currently authorizes the operation of only one entry-level law-enforcement-officer-training academy: the West Virginia State Police Academy.

On February 25, 2016, respondent Fairmont State University filed an application with LEPS seeking authorization to establish and operate a new law-enforcement-officer-training academy. Fairmont State wanted to offer an entry-level training program for students who were in their senior year and pursuing a Bachelor of Science criminal justice degree.

The parties agree that Fairmont State’s 2016 application proposed a training program that met or exceeded the guidelines established by LEPS. Specifically, Fairmont State students majoring in criminal justice would be required to complete a total of 1,210 hours of law-enforcement coursework. Fairmont State emphasized that students would have to make a four-year university commitment to the field of criminal studies. Only after completing the foundational coursework would Fairmont State permit students, during one semester of their senior year, to complete an additional 805 hours of academy-specific classroom courses and 405 hours of foundational law-enforcement coursework. The university’s proposed training program specified that no student would be permitted to enroll for just one semester to take the police-academy-only courses.

On June 10, 2016, LEPS denied Fairmont State’s application to create a new law-enforcement-training academy. In a letter to Fairmont State, the LEPS subcommittee declared it had reached a consensus that the university’s proposed academy was simply not necessary. The members of LEPS expressed their belief that the State Police Academy "fully meets the needs of the demand for the training and certification of entry level officers within the state[.]"⁵

Fairmont State appealed the denial of its application to the director of the Division of Justice and Community Services (the agency that, effectively, oversaw the LEPS subcommittee and the Governor’s Committee).⁶ The director subsequently issued a recommended decision to the Governor’s Committee on Crime, Delinquency and Correction, and recommended affirming the LEPS subcommittee’s rejection of the application. The Governor’s Committee adopted the recommendation.

Fairmont State then appealed to the circuit court. In a detailed order entered April 12, 2018, the circuit court reversed the decision by LEPS. The circuit court first found that the Legislature did not confer upon LEPS the authority to deny an application that meets the established criteria for an entry-level training program. Furthermore, the circuit court found that LEPS did not have implicit discretionary authority to deny an application based on its opinion that there was "no need" for a new law-enforcement-training academy. As the circuit court found, "[a] review of the relevant code section and rules reveals ... that LEPS may not deny an application on the basis that there is not a need for more than one training program."

Before the circuit court, LEPS raised a novel reason for denying Fairmont State’s application. Essentially, LEPS contended that it could not authorize Fairmont State’s proposed academy because the university’s students were not employed by a law-enforcement agency before attending Fairmont State, and would not receive a salary or reimbursement while attending the Fairmont State academy. Citing to West Virginia Code § 30-29-5(b), which provides that a law-enforcement agency may conditionally hire an untrained, uncertified person before the person attends an academy, LEPS argued that the Legislature "implicitly contemplated" that a person attending a training academy shall first have been conditionally employed by a law-enforcement organization. Additionally, LEPS claimed that if students were not employed before attending Fairmont State’s academy, there was no assurance they would be employed after graduating. LEPS pointed to regulations providing that if a certified law-enforcement officer is not employed by a law-enforcement agency for two years or more, that officer must undergo substantial retraining to regain the certification.⁷ LEPS argued it could refuse to authorize Fairmont State’s academy because the students who failed to be hired by a law-enforcement agency within two years of graduation might have to repeat much of their academy training to be re-certified.

The circuit court rejected LEPS’s arguments, finding them neither "reasonable nor in conformance with a reasonable extension of the duties conferred" upon LEPS by law. The Legislature enacted statutes that empowered LEPS to implement rules for the establishment of entry-level law-enforcement-training academies. The circuit court found nothing in those statutes to "imply an application can be denied if it meets the criteria for establishing an entry-level training program." Conversely, the circuit court found that the statutes and rules "recognize that an academic institution could be approved to operate a law enforcement training program" and "recognize circumstances where officers may be certified through means outside the West Virginia State Police Program." The circuit court determined that the Legislature intended to allow academic institutions like Fairmont State to offer a law-enforcement-training academy, and found that LEPS’s position that universities should not be permitted to offer such training was neither reasonable nor implied in any statute.

The circuit court concluded that the decision by LEPS to deny Fairmont State’s application was arbitrary and capricious. The circuit court therefore reversed the decision, and remanded the case with instructions that LEPS take those steps necessary to approve Fairmont State’s application for an entry-level law-enforcement training program.

LEPS (along with the Division of Justice and Community Services) now appeals the circuit court’s order.

II. Standard of Review

At its heart, this is an appeal under the West Virginia Administrative Procedure Act, which establishes the following standards for a court reviewing an administrative decision:

(g) The court may affirm the order or decision of the agency or remand the case for further proceedings. It shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decision or order are:

(1) In violation of constitutional or

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