Alden v. Harpers Ferry Police Civil Serv.

• Citation: 209 W.Va. 83,543 S.E.2d 364
• Decision Date: 26 January 2001
• Docket Number: No. 28211.,28211.
• Court: West Virginia Supreme Court
• Parties: Kevin A. ALDEN, Appellant Below, Appellant, v. HARPERS FERRY POLICE CIVIL SERVICE COMMISSION, Appellee Below, Appellee.

543 S.E.2d 364

209 W.Va. 83

Kevin A. ALDEN, Appellant Below, Appellant, v. HARPERS FERRY POLICE CIVIL SERVICE COMMISSION, Appellee Below, Appellee.

No. 28211.

Supreme Court of Appeals of West Virginia.

Submitted January 10, 2001.

Decided January 26, 2001.

S. Andrew Arnold, Shepherdstown, West Virginia, Ross A. Nabatoff, Christy Hallam DeSanctis, Brand & Frulla, P.C., Washington, District of Columbia, Attorneys for the Appellant.

John W. Askintowicz, III, Law Office of John W. Askintowicz, III, Charles Town, West Virginia, Attorney for the Appellee.

DAVIS, Justice:

The appellant herein and plaintiff below, Kevin A. Alden [hereinafter "Officer Alden"], appeals from the January 19, 2000, decision of the Circuit Court of Jefferson County denying his motion to alter or amend its earlier judgment. In its prior ruling, entered November 30, 1999, the circuit court found that the Harpers Ferry Police Department [hereinafter "the Department"] had demonstrated "just cause" to terminate Officer Alden's employment, affirming the October 20, 1998, decision of the Harpers Ferry Police Civil Service Commission [hereinafter "the Commission"], which likewise upheld Alden's termination. On appeal to this Court, Officer Alden assigns two errors: (1) he was not afforded a pre-termination hearing¹ and (2) his post-termination hearing was constitutionally deficient. Upon a review of the parties' arguments, the appellate record, and the pertinent authorities, we find that Officer Alden was not afforded the statutorily-mandated pre-termination hearing as required by W. Va.Code § 8-14A-3(b) (1997) (Repl.Vol. 1998). Accordingly, we reverse the decision of the Circuit Court of Jefferson County and remand this case for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

On July 1, 1996, the Corporation² of Harpers Ferry hired Officer Alden as a patrolman for the Harpers Ferry Police Department. During his approximate two-year period of employment with the Department, Officer Alden was charged with violating numerous provisions of the Harpers Ferry Police Manual [hereinafter "the Manual"]. These derelictions included failure to follow direct orders; verbal abuse and harassment of fellow and superior officers; failure to complete reports in a timely manner; use of Department-issued equipment for personal business; failure to arrest individuals where such action was warranted; and a general lack of compliance with departmental policies and the established chain-of-command.

Also during this term of employment, Officer Alden received two evaluations of his job performance,³ both of which resulted in an overall rating of "unsatisfactory". As a result of these poor reviews and as a consequence of his multiple infractions, Officer Alden's supervising officers counseled him regarding his job performance and recommended methods of improvement. In addition to these meetings, the supervising officers verbally reprimanded Officer Alden on numerous occasions and presented him with written warnings stemming from his various infractions.⁴ One of these written warnings, issued on November 17, 1997, cautioned Officer Alden that it should be construed as a "final warning" and that any further "violation will result in [t]ermination."

Ultimately, by letter dated May 30, 1998, the Department terminated Officer Alden's employment. Officer Alden thereafter appealed his discharge to the Commission. Following a post-termination hearing,⁵ the Commission determined, by decision rendered October 20, 1998, that the Department had demonstrated "just cause" for Officer Alden's termination as required by W. Va. Code § 8-14-20(a) (1996) (Repl.Vol.1998).⁶ Officer Alden then appealed the Commission's ruling, which was upheld by the Circuit Court of Jefferson County on November 30, 1999. By subsequent order entered January 19, 2000, the circuit court similarly rejected Officer Alden's Rule 59(e)⁷ motion to alter or amend its earlier ruling, including his claim that he had been denied a pre-termination hearing in contravention of W. Va.Code § 8-14A-3(b).⁸ This appeal followed.

II. STANDARD OF REVIEW

On appeal to this Court, Officer Alden challenges the propriety of the circuit court's denial of his motion made pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure.⁹

"The standard of review applicable to an appeal from a motion to alter or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the underlying judgment upon which the motion is based and from which the appeal to this Court is filed." Syllabus point 1, Wickland v. American Travellers Life Insurance Co., 204 W.Va. 430, 513 S.E.2d 657 (1998).

Syl. pt. 2, Bowers v. Wurzburg, 205 W.Va. 450, 519 S.E.2d 148 (1999). Consequently, we must also consider the standard of review applicable to the circuit court's affirmance of the Commission's decision to uphold Alden's termination. Generally,

[t]he judgment of a circuit court affirming a final order of a police civil service commission, upon appeal therefrom as provided by statute, will not be reversed by this Court unless the final order of the commission was against the clear preponderance of the evidence or was based upon a mistake of law.

Syl. pt. 2, In re Prezkop, 154 W.Va. 759, 179 S.E.2d 331 (1971). However, when there does exist a mistake of law, our review of the circuit court's ruling is de novo. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). See also Syl. pt. 1, Burks v. McNeel, 164 W.Va. 654, 264 S.E.2d 651 (1980) ("In reviewing the judgment of a lower court this Court does not accord special weight to the lower court's conclusions of law, and will reverse the judgment below when it is based on an incorrect conclusion of law."). Having determined the applicable standards of review, we turn now to evaluate the errors assigned by Officer Alden.

III. DISCUSSION

With this appeal, we essentially have been asked to revisit the issue of what type of process is due a civil service police officer when he/she is discharged from employment. We first considered a similar query in the case of City of Huntington v. Black, 187 W.Va. 675, 421 S.E.2d 58 (1992). In the Black case, the aggrieved employee was not terminated but rather sustained a reduction in rank and pay without first being afforded notice of the charges against him and an opportunity to be heard thereon. 187 W.Va. at 677, 421 S.E.2d at 60. Upon our review of the proposed certified questions, we determined that Sergeant Black was, in fact, entitled to a predisciplinary hearing. Accordingly, we held, in the sole Syllabus point of that opinion, that

West Virginia Code § 8-14A-3 (1990), by its express provisions, does not require that an internal hearing be conducted prior to discharge, suspension, or reduction in rank or pay if the punitive action has already been taken. Principles of due process, however, dictate that a police officer subject to civil service protection must be afforded a predisciplinary proceeding prior to discharge, suspension, or reduction in rank or pay notwithstanding the provisions of West Virginia Code § 8-14A-3 unless exigent circumstances preclude such a predisciplinary hearing.

Syl., 187 W.Va. 675, 421 S.E.2d 58.

The present case, however, presents a slightly different scenario for our consideration. First, Officer Alden was terminated from his employment, as opposed to receiving a lesser form of discipline. Second, the statute determinative of this appeal has been amended since we first examined its provisions in the Black case. As we observed therein, the terms of W. Va.Code § 8-14A-3 did not, at that time, expressly require that a civil service police officer facing discipline be afforded a predisciplinary hearing.¹⁰ See Syl., 187 W.Va. 675,421 S.E.2d 58. The present version of this statute, though, expressly affords officers such protection. W. Va.Code § 8-14A-3 (1997) (Repl.Vol.1998) provides, in pertinent part:

(a) Before taking any punitive action against an accused officer, the police or fire department shall give notice to the accused officer that he or she is entitled to a hearing on the issues by a hearing board or the applicable civil service commission. The notice shall state the time and place of the hearing and the issues involved and shall be delivered to the accused officer no later than ten days prior to the hearing.

(b) When a civil service accused officer faces a recommended punitive action of discharge, suspension or reduction in rank or pay, but before such punitive action is taken, a hearing board must be appointed and must afford the accused civil service officer a hearing conducted pursuant to the provisions of article fourteen, section twenty [§ 8-14-20],¹¹ or article fifteen, section twenty-five [§ 8-15-25]¹² of this chapter: Provided, That the punitive action may be taken before the hearing board conducts the hearing if exigent circumstances exist which require it....

(Footnotes added). Typically, the word "must" is afforded a mandatory connotation. See McMicken v. Province, 141 W.Va. 273, 284, 90 S.E.2d 348, 354 (1955) (construing "must" as a "mandatory word"), overruled on other grounds by Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979). See also Larson v. State Personnel Bd., 28 Cal.App.4th 265, 276, 33 Cal.Rptr.2d 412, 419 (1994) ("The ordinary meaning of `shall' or `must' is of mandatory effect[.]" (citation omitted)); Tranen v. Aziz, 59 Md. App. 528, 534-35, 476 A.2d 1170, 1173 ("The term `must' imposes a positive, absolute duty,... and has been defined as `compulsion or obligation' or `requirement or prerequisite.'" (citations omitted)), cert. granted, 301 Md. 471, 483 A.2d 754 (1984), aff'd, 304 Md. 605, 500 A.2d 636...