Appeal of Prezkop

• Decision Date: 19 January 1968
• Citation: 154 W.Va. 759,179 S.E.2d 331
• Parties: Appeal of Officer Leonard A. PREZKOP to Wheeling City Manager, Charges of
• Court: West Virginia Supreme Court

Page 331

179 S.E.2d 331

154 W.Va. 759

Appeal of Officer Leonard A. PREZKOP to Wheeling City

Manager, Charges of January 19, 1968.

No. 12992.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 2, 1971.

Decided Feb. 23, 1971.

Syllabus by the Court

1. A final order of a police civil service commission based upon a finding of fact will not be reversed by a circuit court upon appeal unless it is clearly wrong or is based upon a mistake of law.

2. The 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.

Goodwin, Mead & Goodwin, Thomas A. Goodwin, Wheeling, for Leonard A. prezkop.

George G. Bailey, City Atty., George B. Vieweg, III, Asst. City Atty., Wheeling, for City of Wheeling.

BROWNING, Judge:

This is an appeal from a final order of the Ohio County Circuit Court sustaining the action of the Police Civil Service Commission and the City Manager of the City of Wheeling dismissing appellant, Leonard A. Prezkop, after approximately fourteen years' service as a police officer for the City of Wheeling.

The case arose in the following manner: On December 31, 1967, about 4:00 a.m., Prezkop and another officer, Willard Jarrett, arrived at the scene of a fire in an area which they were patrolling. The fire resulted in the deaths of seven young children, with only one eleven-month-old child being rescued, apparently by Carol Botteri, a baby sitter. The two officers made an investigation, and, after completing their tour of duty, they submitted a written report concerning the fire. This report, known as the 'green sheet,' along with two copies was typed by Jarrett. The green sheet was given to the desk sergeant, and Jarrett and Prezkop each kept a copy. Based on their investigation, the two officers also filed a 'complaint-offense' report which read:

Because of the deaths of 7 inocent (sic) children as the Result (sic) of as we feel negligence on the Part (sic) of Parents (sic) of the dead children. We officer (sic) Jettett (sic) and Prezkop will file charges of child neglect 1/2/68.

Around noon on December 31st, the desk sergeant marked the green sheet 'CONFIDENTIAL DO NOT RELEASE.'

On the morning of January 2, 1968, Jarrett gave his copy of the report to a lieutenant in the detective division of the department. Prezkop retained his, and later that day showed it to Charles Calloway, a Wheeling newspaper reporter. Jarrett testified that also on that or the following day he saw Prezkop's copy in Prezkop's home. Several days later, Prezkop approached Don Daniels, another reporter, and discussed the possibility of 'criminal neglect' in connection with the fire. On January 11, 1968, after having visited Daniels at his home, Prezkop urged Jarrett to sign an affidavit with respect to their investigation, which the pair did at Daniels' office. Still later, Prezkop showed his copy of the report to another reporter.

On January 16, 1968, Daniels wrote a newspaper story about the fire which included a statement that the fire chief had shown him the report 'but a carbon copy was already in the hands of the (newspaper).' Also on that day, Jarrett gave a written statement to the chief of police regarding his involvement in the newspaper story. The next day, Prezkop did the same, and Daniels gave the chief of police a copy of the affidavit executed by Prezkop and Jarrett.

The justification advanced for the conduct of Prezkop and Jarrett in this matter apparently was their impression, after talking to the prosecutor, that 'no criminal charges would be preferred concerning the children's deaths,' and, thus, they 'acted in concert and in good faith * * * to bring to justice the persons who might be responsible.' The department maintained that Prezkop never asked for or received permission to issue any information relating to the fire, and, in particular, to release the confidential police report (or green sheet). Prezkop maintained that this report was available to the news media after it was filed and before it was marked 'confidential,' and furthermore no 'substantial' reason was given for its being so marked.

On January 19, 1968, the chief of police filed charges against Prezkop with the city manager alleging that Prezkop had violated the Rules and Regulations of the Wheeling Police Department and recommended his dismissal. In particular, he was charged with violating the following sections of those Rules and Regulations:

Section 55. To Give Information.

He will answer all questions relating to general information carefully, courteously, and accurately. He shall not, however, furnish information relative to questions of Departmental policy, or that which may in any way react to the detriment of the Department and its functions but will respectfully refer such questions to the office of the Chief of Police.

Section 73. Not to Impart Official Business.

A member will treat as confidential, the official business of the Department. He will not impart it to anyone except those for whom it is intended, or as directed by his Commanding Officer, or under due process of law. A Commanding Officer may impart to representatives of the press, upon establishing their identity, current news, providing the ends of justice are not thereby defeated.

Section 94. Privacy of Department Records.

No person shall have access to Department records except Commanding Officers and members and employees of the Department in charge thereof or at work thereon. No person whatever shall give or make a transcript from Department records nor permit any such record to be removed from the Record Bureau except by authority or permission of the Chief of Police or under the process of law.

In addition, on that date Prezkop received a letter of dismissal, and Jarrett was notified that he had been suspended for fifteen days.

Upon a hearing, the Police Civil Service Commission of the City of Wheeling sustained the action of the city manager in dismissing appellant from the department, and, upon appeal, the action of the Police Civil Service Commission was affirmed by the Ohio County Circuit Court by order entered October 29, 1969. It is from this order that Prezkop appeals.

Appellant assigns the court's affirming the Police Civil Service Commission ruling as error because, according to appellant, '(t)he evidence clearly shows that the information which the (appellant) gave to the news media was not confidential * * *' and, furthermore, it was not 'so classified immediately after the incident and * * * had been available to all members of the news media and even to the reporter who eventually disclosed its contents * * *.' Additionally, appellant maintains that his dismissal was 'not justified in light of his intentions * * *, the loss which he will suffer in losing his employment and * * * pension * * *,' and 'the penalty assessed against (Jarrett) who acted in the same manner * * *.'

This Court granted appellant's petition for an appeal on July 14, 1970, and the case was submitted for decision on February 2, 1971, upon briefs and oral argument of counsel for both parties and appellant's motion to reverse filed January 4, 1971.

Under the provisions of Code, Chapter 8, Article 14, Sections 6--23, as amended, when an employee covered by police civil service is discharged, he may appeal such action by the employing authority to the police civil service commission of his city by demanding a public hearing. Section 20 provides that at such a hearing the burden of proof is upon the employing authority to prove valid grounds for the action taken. Interestingly enough, Code, 29--6--13, as amended, relating to a hearing before the West Virginia Civil Service Commission where an employee has been discharged, transferred, etc., as provided therein, is silent upon the question as to where the burden of proof lies. It would appear from cases pending or decided in this Court that the West Virginia Civil Service Commission has interpreted that section to mean that the burden of proof is upon the employee to show that he was wrongfully discharged or otherwise discriminated against as provided by the Act. In this case, the Police Civil Service Commission of the City of Wheeling did require the city to offer its evidence at the beginning of the hearing indicating a compliance with the statute as to the burden of proof in such cases.

This Court has never passed upon the question of the weight, if any, that is to be given to the findings of a police civil service commission by the circuit court upon appeal, but in Billings v. Civil Service Commission, W.Va., 178 S.E.2d 801 (1971), decided at this term of Court, this Court held that a final order of the West Virginia Civil Service Commission based upon a finding of fact would not be reversed by this Court upon appeal unless it was clearly wrong. The rule was stated conversely in Guine v. Civil Service Commission, 149 W.Va. 461, 141 S.E.2d 364 (1965):

The principle is well established by the decisions of this Court that an order of an administrative body based upon a finding of facts which is contrary to the evidence, or is not supported by the evidence, or is based upon a mistake of law, will be reversed and set aside by this Court upon review.

It is the view of this Court and we so hold that the rule laid down in the Billings and Guine cases should be applicable also in appeals from a police civil service commission to a circuit court.

It appears from the opinion of the circuit judge, which was made a part of the record, that he based his affirmance of the decision of the commission wholly upon the violation of Rule 73 above quoted. It is contended by counsel for Prezkop that therefore we may consider only the question of whether Prezkop violated that rule and...