Bone v. West Virginia Dept. of Corrections, 14391
| Decision Date | 26 June 1979 |
| Docket Number | No. 14391,14391 |
| Citation | 255 S.E.2d 919,163 W.Va. 253 |
| Parties | Robert O. BONE v. WEST VIRGINIA DEPARTMENT OF CORRECTIONS. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. Determination of whether an employee protected by civil service is guilty of gross misconduct justifying dismissal must be made upon the facts and circumstances which are peculiar to that case.
2. When due process applies, it must be determined what process is due and consideration of what procedures due process may require under a given set of circumstances must begin with a determination of the precise nature of the government function involved as well as the private interest that has been impaired by government action.
3. Failure of a penitentiary guard to obey a lawful order of his superior officer constitutes gross misconduct justifying dismissal.
Charles D. Bell and David B. Cross, Wellsburg, for appellant.
Chauncey H. Browning, Atty. Gen., Joseph C. Cometti, and Frances W. McCoy, Asst. Attys. Gen., Charleston, for appellee.
Robert O. Bone, who had served as a Correctional Officer I at the State Penitentiary for approximately two and one-half years, was discharged from such position on May 26, 1978. Upon appeal to the Civil Service Commission his dismissal was upheld in a unanimous ruling and this appeal was prosecuted.
On the evening of May 26, 1978 Robert O. Bone reported for duty at the penitentiary and was assigned to guard an inmate patient at Wheeling Park Hospital in Wheeling, West Virginia. He had formerly, on many occasions, been assigned to hospital duty. However, when Mr. Bone reported to the Admissions desk on this occasion, he was informed that the inmate was in a room with another patient who was not an inmate of the prison. He did not report to his assigned duty but called the Shift Commander, Captain Campbell, related to him the situation and told him that he was not going to perform the duty to which he was assigned. He told Captain Campbell that he would not accept the responsibility of the safety of the non-inmate patient. This was the basis for his refusal to perform his duty.
The Captain told him that he did not have to assume the responsibility of the "civilian" but that his only duty was to maintain security and assume responsibility for the inmate. Mr. Bone again refused Captain Campbell's direct order to assume his duty at the hospital room. The latter then told Bone that he was coming to the hospital. Before he went he related to the Deputy Superintendent, Mr. Davis, what had transpired with Mr. Bone and Mr. Davis told him "to inform Officer Bone at that time that he was suspended from duty until he came to his office at 8:00 a. m. on Monday, May 29th."
Captain Campbell met Mr. Bone in the lobby of the hospital and for the third time the latter refused a direct order to relieve the guard in the subject hospital room. Immediately thereafter Bone returned to the penitentiary where he was discharged by Deputy Superintendent Davis.
On May 29, 1978, Bobby J. Leverette, the Superintendent of the penitentiary, mailed a "Letter of Dismissal" to Mr. Bone, stating therein that his dismissal was effective immediately due to his gross misconduct. The letter contained the following:
1. You are guilty of Gross Misconduct.
a. On the Shift of May 16th and 17th, 1978 you reported for duty and took your post and shortly thereafter you departed that post, claiming illness.
b. The Deputy Superintendent informed your Shift Commander to have you report to his office on the morning of May 17, 1978, early that morning you called the Deputy Superintendent's Secretary and informed her that you would not be in because of car trouble.
c. The Deputy Superintendent made another appointment with you at a later date, May 24, 1978, again you called the Deputy Superintendent's Secretary and stated that you were going to sleep a couple of hours and go to the Doctor for X-rays. At this time you left a telephone number and the Deputy Superintendent attempted to call you throughout the morning, and the phone was busy.
d. A letter was mailed to you Outlin the appointment you had missed and instructing you to be in the Deputy Superintendent's office on the morning of May 29, 1978.
e. On Friday night, May 26, 1978, you reported to duty with your Shift at 10:20 p. m. and were assigned at hospital security at Wheeling Park Hospital on an inmate from this institution who was a patient in the hospital.
You were driven to the hospital and after you arrived, you did Not relieve the officer on duty, you did Not go to the room, rather you called your Shift Commander and refused to take the post because there was a civilian in the room. The Shift Commander attempted to explain to you that you were not responsible for the civilian and still you refused to take your post.
Upon this appeal the petitioner assigns the following errors (1) That the Commission erred in its finding that Robert O. Bone was guilty of gross misconduct which justified discharge.
(2) That the Commission erred in its finding that notice and opportunity to respond were not required under the due process clauses of the state constitution or federal constitution or under the mandate of West Virginia Code, Chapter 29, Article 6, Section 10(11).
In determining whether the acts of the appellant, for which he was discharged, constituted gross misconduct justifying such discharge, we must consider the facts and circumstances reflected by the record. In Thurmond v. Steele, W.Va., 225 S.E.2d 210 (1976), this Court, considering gross misconduct as a justification for terminating employment, said: "Each case must be determined upon the facts and circumstances which are peculiar to that case." The Court then, noting that it would not demand of a covered employee " such perfection of conduct as to create an intolerable burden", said it would " protect the employee against frivolous, trivial and inconsequential charges; or charges based on conduct which has no rational nexus with the duties to be performed or the rights and interests of the public." See Guine v. Civil Service Commission, 149 W.Va. 461, 141 S.E.2d 364 (1965) and Mindel v. United States Civil Service Commission, 312 F.Supp. 485 (N.D. Calif., 1970).
In the instant case the discharged employee refused three times to carry out a lawful order. He contends that he was not adequately instructed by his superior how to proceed when the inmate patient is in a room with a non-inmate patient. In the circumstances of this case, this contention is without merit.
Mr. Bone did not even report to the hospital room to determine whether there was a security risk situation. He did not relieve the guard on duty and offered no evidence to show that a security risk existed. None, in fact, did exist, as reflected by the testimony of Robert Buzzard, the guard Mr. Bone was to relieve. Mr. Buzzard testified that he experienced no difficulty on this tour of hospital duty and did not consider this assignment any more dangerous than any other hospital guard duty; the "civilian" patient was no cause for concern.
Upon being told by Mr. Bone that he would not obey his order because "he would not accept the responsibility of the civilian personnel", Captain Campbell answered Mr. Bone persisted in his refusal to carry out a lawful order.
A copy of the Rules and Regulations governing officer procedure at Outside Hospital is included in the record. Such rules fully instruct a guard on hospital duty as to the procedures he should follow during such duty. If security becomes a problem the rules provide for back-up assistance from the penitentiary. Mr. Bone, having refused to report to his assigned station, was in no position to complain about the lack of security measures. While the rules do not speak of a non-inmate patient being in a room with an inmate, an experienced guard, such as the appellant, who testified that he had performed hospital duty fifty to sixty times, should have no difficulty in coping with the situation, especially since he could receive assistance, if needed.
It would indeed be an unusual circumstance which would permit a penitentiary guard to make his own determination as to the lawfulness of an order given him. Such guard is charged with the safety, not only of the inmates but also of the public on certain occasions. He is in a position similar to that of personnel in the military service. To obey orders from his superiors is a prime obligation of his employment and the flagrant disobedience thereof constitutes substantial cause for dismissal. Of course, if the order were blatantly unlawful, the guard should be held blameless upon his refusal to obey. No such unlawful order was involved in this case and the employee's persistent refusal to obey the lawful order of his superior officer constituted gross misconduct warranting dismissal. See 15 Am.Jur.2d, Civil Service, Section 61 and 63.
The appellant, asserting that the procedural requirements of W.Va.Code, 1931, 29-6-10(11), as amended, were not followed, contends that he was deprived of due process of law under the federal and state constitutions. In pertinent part, the above code section provides:
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