Guine v. Civil Service Commission, 12398

• Decision Date: 13 April 1965
• Docket Number: No. 12398,12398
• Citation: 149 W.Va. 461,141 S.E.2d 364
• Court: West Virginia Supreme Court
• Parties: Doctor Gerald R. GUINE v. CIVIL SERVICE COMMISSION of West Virginia et al., etc.

Page 364

141 S.E.2d 364

149 W.Va. 461

Doctor Gerald R. GUINE v. CIVIL SERVICE COMMISSION of West Virginia et al., etc.

No. 12398.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 3, 1965.

Decided April 13, 1965.

Syllabus by the Court

A final order of the Civil Service Commission, based upon findings not supported by the evidence, upon findings contrary to the evidence, or upon a mistake of law, will be reversed and set aside by this Court upon review.

Bibby & Good, Albert F. Good, Charleston, for appellant.

C. Donald Robertson, Atty. Gen., Leo Catsonis, Asst. Atty. Gen., Charleston, for appellees.

CAPLAN, Judge.

This is an appeal by Gerald R. Guine from an order of the Civil Service Commission wherein the Commission affirmed the dismissal of the appellant by N. H. Dyer, State Director of Health, and the West Virginia Board of Health.

Gerald R. Guine, a duly licensed Doctor of Dentistry, was employed by the State Department of Health as the Director of the Division of Dental Health from June 15, 1959 until the date of his discharge on October 16, 1963. In this capacity he was a member of the state civil service system. According to the record of proceedings before the Civil Service Commission, the State Board of Health, on September 19, 1963, during a regular meeting, directed Doctor N. H. Dyer, who also serves as secretary of the board, to obtain the resignation of Doctor Guine or, if he refused to resign, to discharge him from his position as the Director of Dental Health. Pursuant to this direction, Doctor Dyer, upon the refusal of Doctor Guine to resign, by letter of October 1, 1963, informed Doctor Guine that his employment with the Department of Health was terminated as of October 16, 1963.

Thereafter, under the provisions of Code, 1931, 29-6-13, as amended, Doctor Guine, sometimes referred to herein as appellant, appealed his dismissal to the Civil Service Commission. After lengthy hearings, at which a voluminous record was compiled, the Commission, in a two to one decision, affirmed the action of the State Board of Health. This appeal was granted upon the petition timely filed by the appellant.

In the letter of October 1, 1963, Doctor Dyer, as grounds for dismissal, alluded to insubordination, negligence and inefficiency on the part of Doctor Guine, although no specific instances thereof were cited. At a pre-hearing conference before the Civil Service Commission on December 4, 1963, the sufficiency of the charges as related in the letter of dismissal was questioned. Counsel for the appellees then agreed to furnish a supplementary letter stating specific charges in support of the dismissal. To this the appellant agreed, but he did not waive any right to object to the sufficiency of the charges or dismissal notice.

Counsel for the appellees, by letter dated December 9, 1963, purported to further inform Doctor Guine of the specific charges against him. Thereafter, a motion was made on behalf of the appellant to dismiss the charges on the ground that they were too vague and indefinite to enable him to prepare a defense. The appellant also moved that the dismissal be set aside and Doctor Guine be reinstated in the position he had held. The Commission overruled these motions, but held that only Item 2 of the December 9, 1963 letter was sufficiently specific to be considered at the hearing. While the Commission refused to definitely rule out consideration of the other items in that letter, it did say that if the appellees, in the presentation of their evidence, went outside of Item 2, the hearing would be recessed to afford the appellant an opportunity to prepare his defense to such other matters. It developed during the hearing, however, that the employing authority relied entirely upon the allegations contained in Item 2 of the aforesaid letter.

Because of its obvious import to this proceeding, Item 2 of the December 9, 1963 letter is set out in full as follows: '2. You did use State property for the purpose of negotiating and selling privately-owned equipment to a subdivision of the State Department of Health, and without authorization did use a State vehicle to transportsaid privately-owned property.'

The appellant contends that the notice of dismissal, including the above quoted portion of the December 9, 1963 letter, fails to state specific reasons as a basis for dismissal as required by the provisions of Article XI, Section 2, of the Regulations of the Civil Service Commission, and that such dismissal is therefore invalid and void. Although the charges contained in Item 2 fail to state dates and places as to the alleged wrongdoing, it became apparent during the pre-hearing conferences that the appellant was apprised of the incidents referred to in the notice. Furthermore, the appellant proceeded with the hearing and clearly was prepared to defend against the charge. We can not say, therefore, that the charges contained in Item 2 of the letter of December 9, 1963, were not so specifically stated that the appellant was unable to defend against them.

The principal error upon which the appellant relies is that the evidence adduced at the hearing before the Civil Service Commission fails to establish any ground for his dismissal which constitutes 'cause' or 'good cause' for such dismissal within the requirements of our civil service law. In order to determine the validity of this assignment of error it is necessary to consider the facts which gave rise to this controversy.

On September 6, 1963, Doctor Guine submitted to the Director of the State Health Department a written request for authority to travel, by state vehicle, to Huntington and Wayne on September 13, 1963. The purpose of the trip was therein stated to be 'to acquaint Dr. McCutcheon with the dental programs and to deliver dental supplies'. The travel request was returned by the Director on September 9, 1963, with a memorandum asking for more specific information about the proposed trip as to 'places of contact and persons to be contacted'. On September 10, 1963, Doctor Guine again submitted his request and included an additional explanation concerning the purpose of the trip. Having heard nothing further in relation to his request, Doctor Guine, on September 13, 1963, traveled to Huntington and Wayne in a state owned station wagon. The record reveals that Doctor McCutcheon, a then recently employed dentist in the Division of Dental Health, accompanied him on the trip and that they delivered certain dental supplies to the Wayne County Health Department.

It is the contention of the appellees that since this trip was not specifically approved by the Director, Doctor Guine was guilty of using a state vehicle without authorization. It is undisputed that the travel request was never expressly approved or rejected by Doctor Dyer. This situation gave rise to the introduction of much testimony as to what constitutes authorized travel by employees of the State Health Department, the underlying question being whether Doctor Guine's action in this instance did in fact constitute an unauthorized trip.

Doctor Dyer testified at length as to the procedure prescribed in the rules of the department for obtaining permission to travel. He stated that no travel is authorized unless it is first approved by him, as Director; that the request for approval must be submitted at least three days prior to the proposed trip; that he had handled all travel requests personally; and that he always followed the rules pertaining to such travel requests.

Doctor Guine acknowledged the rule in relation to a request for travel to be as described by Doctor Dyer. However, he testified that it was the practice in the department to submit a travel request at least days prior to a trip and, if the request was not rejected, the trip would be taken; that the approval was...