Freeman v. Poling

• Decision Date: 20 December 1985
• Docket Number: No. 16316,16316
• Citation: 175 W.Va. 814,338 S.E.2d 415
• Court: West Virginia Supreme Court
• Parties: Theresa D. FREEMAN, Pamela S. McDaniels, et al., v. Maud Ann POLING Sheriff, Etc.,

Page 415

338 S.E.2d 415

175 W.Va. 814

Theresa D. FREEMAN, Pamela S. McDaniels, et al., v. Maud Ann POLING Sheriff, Etc.,

No. 16316.

Supreme Court of Appeals of

West Virginia.

Dec. 20, 1985.

Syllabus by the Court

1. "A 'property interest' includes not only the traditional notions of real and personal property, but also extends to those benefits to which an individual may be

deemed to have a legitimate claim of entitlement under existing rules or understandings." Syllabus Point 3, Waite v. Civil Service Comm'n, 161 W.Va. 154, 241 S.E.2d 164 (1977). (Emphasis added).

2. Although a government employee may have a reasonable basis for understanding terms of his employment, those understandings cannot override state law that defines the terms of employment.

3. "A state or one of its political subdivisions is not bound by the legally unauthorized acts of its officers and all persons must take note of the legal limitations upon their power and authority. Cunningham v. County Court of Wood County, 148 W.Va. 303, 310, 134 S.E.2d 725, 729 (1964)." Syllabus Point 2, West Virginia Public Employees Ins. Bd. v. Blue Cross Hospital Service, Inc., 174 W.Va. 605, 328 S.E.2d 356 (1985).

4. "The 'liberty interest' includes an individual's right to freely move about, live and work at his chosen vocation, without the burden of an unjustified label of infamy. A liberty interest is implicated when the State makes a charge against an individual that might seriously damage his standing and associations in his community or places a stigma or other disability on him that forecloses future employment opportunities." Syllabus Point 2, Waite v. Civil Service Comm'n, 161 W.Va. 154, 241 S.E.2d 164 (1977).

5. Courts are rather uniform in holding that an unexplained termination or discharge from employment does not create a sufficient stigma to invoke a liberty interest protection.

Franklin D. Cleckley, Morgantown, LaVerne Sweeney, Grafton, Robert M. Bastress, Morgantown, for appellants.

Gerald M. Fogg, Asst. Pros. Atty., Philippi, for appellee.

MILLER, Chief Justice:

We are asked on this appeal to determine whether the termination of certain county employees violated their constitutional due process rights. We find their rights not to have been violated.

In the 1976 election, incumbent Republican Donald Semmelman lost the sheriff's race to Democrat Virgil Poling. Poling died two weeks later and was replaced by his widow, Maud Ann Poling. Before Sheriff Poling took office on January 1, 1977, there were thirteen employees in the Sheriff's office including the four appellants. When she assumed the office, she verbally notified each of the appellants, and one other employee, that she would not be needing their services. She retained the other eight employees and hired new deputies in place of the appellants. When asked by the appellants the reasons for their termination, Poling responded that she desired to bring in "people of her own." The evidence shows appellants, Theresa Freeman, Pamela McDaniels, and Larry Carpenter were Republicans and Howard Biller was a Democrat. They were replaced by four Democrats.

The appellants rely heavily on certain assurances made by Sheriff Semmelman with regard to the civil service system established in January, 1975, by the Barbour County Commission as authorized by W.Va.Code, 7-14-1, et seq. At the time of its adoption, the appellants Carpenter and Freeman were already deputy sheriffs. They were assured by Sheriff Semmelman that their jobs would be protected under the new civil service system as long as they passed the civil service examination. The appellants McDaniels and Biller were hired as deputies in 1976 with the same assurance by Semmelman that they would be covered under the civil service system. However, it is not disputed factually that neither McDaniels nor Biller had been approved by the Civil Service Commission. McDaniels had not even taken the civil service examination prior to being hired. Biller had taken the examination prior to his hiring, but he had the lowest score among the applicants and was never recommended by the Civil Service Commission. Freeman and McDaniels eventually took the civil service examination in 1976. Carpenter never took the examination and denied he had ever been told it was required for civil service protection.

The appellants protested their dismissals and requested a hearing before the Civil Service Commission of Barbour County. Before any hearings could be held, Poling obtained a writ of prohibition from the Circuit Court of Barbour County barring a hearing and preventing the Civil Service Commission from any further activity. The court found that the civil service system had not been properly adopted and, therefore, the Commission was without jurisdiction to hear the deputies' case. This decision made in a separate suit was never appealed.

The deputies then filed an action in the Circuit Court of Barbour County alleging political discrimination and denial of due process and seeking damages and reinstatement to their employment as deputies. The circuit court, without a jury, denied relief. The court held that none of the appellants had a legitimate expectation of continued employment because (1) the civil service system for Barbour County deputy sheriffs was unlawfully established and, therefore, the new sheriff was not bound to recognize or perpetuate the effects of an unlawful system; (2) even if the civil service system were lawfully established, none of the appellants came within the definition of a deputy sheriff as that term is defined in W.Va.Code, 7-14-2(a)(2), and, therefore, could not have legally qualified for civil service protection; (3) further, even if appellants fell within the definition of deputy sheriff, Biller and McDaniels were unlawfully hired in violation of the Civil Service Commission's procedures set forth in W.Va.Code, 7-14-11, and Carpenter failed to perfect his civil service coverage by not taking an examination as required by W.Va.Code, 7-14-9; (4) Sheriff Semmelman had no authority to bind his successors to unlawful promises of civil service coverage; and (5) appellants' reliance on Semmelman's promises was unreasonable. The court also held there was no political discrimination as to violate appellants' First Amendment rights to free expression of political beliefs.

The appellants contest all of these findings.

I. PROPERTY INTEREST

The appellants appear to recognize the validity of the circuit court's ruling on the separate suit holding that the civil service system was improperly promulgated and, therefore, invalid. ¹ No appeal has been taken from that decision. Their argument is that the existence of the civil service system prior to its invalidation was enough to create a sufficient property interest. However, the appellee, Poling, argues that even if the old civil service system could be deemed to have created some type of entitlement, the appellants could not obtain its benefits because they never met the standards imposed by the old civil service system.

In Syllabus Point 3 of Waite v. Civil Service Comm'n, 161 W.Va. 154, 241 S.E.2d 164 (1977), this Court held:

"A 'property interest' includes not only the traditional notions of real and personal property, but also extends to those benefits to which an individual may be deemed to have a legitimate claim of entitlement under existing rules or understandings." (Emphasis added).

In Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561 (1972), the United States Supreme Court said property interests are not created by the Constitution, "they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." In Perry v. Sindermann, 408 U.S. 593, 602 n. 7, 92 S.Ct. 2694, 2700 n. 7, 33 L.Ed.2d 570, 580 n. 7 (1972), the Court reiterated the rule in Roth and emphasized that "If it is the law of Texas that a teacher in the respondent's position has no contractual or other claim to job tenure, the respondent's claim would be defeated."

Thus, although a government employee may have a reasonable basis for understanding terms of his employment, those understandings cannot override state law that defines the terms of employment. As stated in Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684, 690 (1976): "A property interest in employment can, of course, be created by ordinance, or by an implied contract. In either case, however, the sufficiency of the claim of entitlement must be decided by reference to state law." (Footnotes omitted).

Under West Virginia civil service law in effect at the time a civil service system was established for deputy sheriffs in Barbour County, civil service protection was provided only to those deputies as defined in W.Va.Code, 7-14-2(a)(2) (1971):

" 'Deputy sheriffs' or 'deputies' shall mean persons appointed by a sheriff as his deputies whose sole duties as such deputies are within the scope of active, general law enforcement and as such are authorized to carry deadly weapons, patrol the highways, perform police functions, make arrests or safeguard prisoners." (Emphasis added). ²

The circuit court found that none of the appellants satisfied this statutory definition of deputy sheriffs entitled to civil service protection because their sole duties were not within the scope of active, general law enforcement. The appellants Freeman and McDaniels were employed primarily as clerical workers or bookkeepers in the tax office. Carpenter and Biller were employed primarily as dispatchers and jailors.

Furthermore, regardless of what they may have been told by Semmelman, the appellants could not have been brought under the civil service system unless the proper procedures had been followed. Those procedures are governed by W.Va.Code, 7-14-7 through -14. None of the appellants was hired in accordance with these...