Cline v. Roark, 17567

• Decision Date: 03 June 1988
• Docket Number: No. 17567,17567
• Citation: 370 S.E.2d 138,179 W.Va. 482
• Parties: Dorothy Mae CLINE v. James E. ROARK, Mayor, etc.; the City of Charleston, etc.; the Police Civil Service Commission, et al.
• Court: West Virginia Supreme Court

Page 138

370 S.E.2d 138

179 W.Va. 482

Dorothy Mae CLINE v. James E. ROARK, Mayor, etc.; the City of Charleston, etc. the Police Civil Service Commission, et al.

No. 17567.

Supreme Court of Appeals of West Virginia.

June 3, 1988.

Syllabus by the Court

1. " ' "A final order of a police civil service commission based upon a finding of fact [should] not be reversed by a circuit court unless it is clearly wrong or is based upon a mistake of law." Syllabus Point 1, City of Logan v. Dingess, 161 W.Va. 377, 242 S.E.2d 473 (1978), quoting, Syl. pt. 1, Appeal of Prezkop, 154 W.Va. 759, 179 S.E.2d 331 (1971).' Syllabus, Pryor v. Hutchinson, W.Va. , 280 S.E.2d 325 (1981)." Syllabus, Futey v. City of Wheeling, 177 W.Va. 477, 354 S.E.2d 111 (1986).

2. " 'This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance.' Syllabus Point 2, Sands v. Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958)." Syllabus Point 2, Duquesne Light Co. v. State Tax Dept., 174 W.Va. 506, 327 S.E.2d 683 (1984).

Gary A. Collias, McIntyre, Haviland & Jordan, Charleston, for appellants.

Christopher S. Butch, Charleston, for appellee.

PER CURIAM:

The City of Charleston and the Charleston Police Civil Service Commission (Commission) appeal from an October 22, 1986 order of the Circuit Court of Kanawha County, which reversed the ruling of the Commission and reinstated Dorothy Mae Cline as a Charleston police officer. The appellants assert that the circuit court did not accord appropriate deference to the factual determination of the Police Civil Service Commission which was not clearly wrong. We agree, and we reverse the circuit court.

The mayor dismissed Officer Cline for violating Policy and Procedures Manual, Section 1401.35, ¹ which prohibits lying to a police officer during an internal investigation. Specifically, she gave a false statement concerning the length of her acquaintance with one Charles Douglas Allen, a convicted felon. The police department initiated the internal investigation based on a complaint by Mr. Allen against Officer John Chandler regarding an incident which occurred in May, 1984.

During the investigation, Officer Cline, represented by her attorney, gave a statement that she was not acquainted with Mr. Allen prior to April, 1984, that she did not know him socially, and that he did not know she was a police officer. Statements were obtained from other witnesses alleging that in the fall of 1983, Officer Cline and Mr. Allen knew each other socially. Also, Mr. Allen allegedly repaired a broken water pipe for Officer Cline in the fall of 1983. At the conclusion of the investigation, the mayor sent a dismissal letter to Officer Cline on January 25, 1985. Officer Cline appealed and hearings were held before the Commission. ²

During the hearings, the city presented as witnesses the persons whose statements had provided the basis for the mayor's actions. Mr. Allen did not testify. Officer Cline presented three witnesses whose testimony the Commission found "did not go to the merits of the alleged misconduct and lacked the factual content necessary to overcome the testimony of the City's witnesses." The Commission concluded that Officer Cline's testimony was not credible and did not afford it any weight. The Commission found just cause for the dismissal.

Officer Cline appealed to the Circuit Court of Kanawha County which, in an order dated October 22, 1986, reversed the Commission. The circuit court reviewed the record, reassessed the credibility of the witnesses, and concluded that the city's minimal prima facie case completely failed in light of the reevaluated evidence. The court then stated that, as a matter of law, the Commission's decision was incorrect because the city had failed to meet its burden of proof.

In the single Syllabus of Futey v. City of Wheeling, 177 W.Va. 477, 354 S.E.2d 111 (1986), we said:

" ' "A final order of a police civil service commission based upon a finding of fact [should] not be reversed by a circuit court unless it is clearly wrong or is based upon a mistake of law." Syllabus Point 1, City of Logan v. Dingess, 161 W.Va. 377, 242 S.E.2d 473 (1978), quoting, Syl. pt. 1, Appeal of Prezkop, 154 W.Va. 759, 179 S.E.2d 331 (1971).' Syllabus, Pryor v. Hutchinson, W.Va. , 280 S.E.2d 325 (1981)."

See Bays v. Police Civil Service Comm'n, 178 W.Va. 756, 364 S.E.2d 547 (1987); City of Parkersburg v. Skinner, 176 W.Va. 657 ----, 346 S.E.2d 808 (1986); Martin v. Pugh, 175 W.Va. 495, 334 S.E.2d 633 (1985); Kendrick v. Johnson, 167 W.Va. 269, 279 S.E.2d 646 (1981); City of Beckley v. Price, 164 W.Va. 423, 264 S.E.2d 468 (1980).

Contrary to this well settled principle, the circuit court in this case relied upon its own determination of witness credibility rather than giving deference to the factfinder. While the circuit court went on to find as a matter of law that the city failed to meet its burden of proof, we cannot agree with this finding. The legal conclusion is based on an impermissible usurpation of the factfinder's role.

Officer Cline also asserts that the Commission dismissed her in a manner which violated both her statutory and constitutional due process rights. She contends that W.Va.Code, 8-14A-3(a) (1982), entitles a...