Hall v. Protan, 13470

• Decision Date: 20 December 1974
• Docket Number: No. 13470,13470
• Citation: 158 W.Va. 276,210 S.E.2d 475
• Court: West Virginia Supreme Court
• Parties: Harold Ray HALL v. John PROTAN, Sheriff of Boone County.

Page 475

210 S.E.2d 475

158 W.Va. 276

Harold Ray HALL v. John PROTAN, Sheriff of Boone County.

No. 13470.

Supreme Court of Appeals of West Virginia.

Dec. 20, 1974.

Syllabus by the Court

1. An order based on findings of an administrative body which are contrary to the evidence will be reversed.

2. A deputy sheriff, whose employment was terminated under the provisions of Code, 1931, 7--14--9, as amended, for failure to successfully complete a qualifying civil service examination within one year from the effective date of the Civil Service Act, is entitled to reinstatement to his former position, where it appears that the failure of the county civil service commission to promulgate rules and regulations and establish training programs, as mandatorily required by statute, adversely prejudiced the deputy's effort to pass the examination.

3. In enacting the 'Civil Service for Deputy Sheriffs Act', the Legislature acted properly within its powers granted by Section 6, Article IX of the Constitution of West Virginia.

John Boettner, Jr., Charleston, for appellant.

Catsonis & Linkous, Leo Catsonis and Thomas L. Linkous, Charleston, for appellee.

SPROUSE, Justice:

This is an appeal from the judgment of the Circuit Court of Boone County, Affirming an order of the Boone County Civil Service Commission which denied the appellant, Harold Ray Hall, reinstatement to his former position as a deputy sheriff of Boone County. The principal issue to be determined is whether the appellant is entitled to reinstatement because of the failure of the county civil service commission to promulgate rules and regulations and to establish training programs prior to the qualifying civil service examination. In essence, we considered this case previously in the mandamus proceeding of Hall v. Protan, W.Va., 195 S.E.2d 380. That proceeding involved three cases consolidated for the purpose of argument and decision. The writ of mandamus was denied principally because the relators had not exhausted their administrative remedies by pursuing a hearing before the county civil service commission.

The appellant, Harold Ray Hall, was appointed to the position of deputy sheriff prior to the effective date of the Civil Service for Deputy Sheriffs Act (July 1, 1971). Chapter 7, Article 14, Section 9, Code, 1931, as amended, which permitted deputies to continue to serve until one year from the effective date of the Act, by which time each deputy must have completed the qualifying examination with a minimum score of 60.

On June 24, 1972, Hall completed a written examination, attempting to satisfy this provision in order to retain his position. He took the examination under protest, objecting to the validity of the examination on the grounds that the county civil service commission had failed to issue rules and regulations for such examinations and had refused to establish a training program as required by the provisions of Chapter 7, Article 14, Section 9 of the Code, 1931, as amended. Hall scored only 40 points on the examination. Ed Cooke was the Sheriff of Boone County at that time, and Hall was not retained by Cooke after he failed the examination.

Hall was permitted by the Boone County Civil Service Commission to take another examination in October, 1972. He passed the October examination. Between July 1, 1972, and the time that Hall took the examination in October, 1972, Sheriff Cooke had requested and was furnished a list of eligible potential employees from the civil service commission. Hall was not included in the list because he had not passed the June examination. Cooke made no request for a list of eligibles after Hall passed the examination in October, 1972. The county civil service commission in the meantime, however, certified Hall as eligible for reappointment subject to the successful completion of a second examination. The new sheriff, the present incumbent, John Protan, took office in January, 1973.

The appellant never requested reinstatement from the present sheriff. At the hearing he was asked:

'Q. Did you feel there was any point in asking the then existing sheriff, John Protan, to be reinstated?

'A. I didn't know whether it would or not, because I wasn't going to ask him.

'Q. You don't know what Mr. Protan would have said to you if you would have asked him for a job do you?

'A. No, sir.

'Q. You don't know that either now do you?

'A. No, sir.'

It is clear, however, that the appellant had requested reinstatement in 1972 from former Sheriff Cooke. It also appears that he requested reinstatement from the county civil service commission as soon as he became aware that this was the course he should follow, although there is some confusion in this regard.

Hall v. Protan, Supra, and No. 13219, Weaver v. The Boone County Civil Service Commission, decided February 27, 1973, without an opinion, establish that the Boone County Civil Service Commission had not issued the rules and regulations for the examinations required under the 'grandfather clause', nor had it established the required training program. The commission has since complied with these requirements, but the question in this proceeding is whether the appellant has been prejudiced by the commission's failure to comply with this mandatory duty prior to the time he took the first examination. We think that he has.

The appellant testified that he failed the examination because he was not familiar with the testing procedure. Although he passed his subsequent test, he contends this was due in part to the familiarity with the testing procedure he gained from taking the previous examination. There was no evidence introduced contradicting his testimony nor the testimony of R. L. Dadisman to the effect that the appellant was hindered by the failure to provide him a training program.

Dadisman, Director of the West Virginia Civil Service Commission, testifying as an expert witness, indicated that such prejudice was implicit in pertinent parts of his testimony.

'Q. Assuming for a moment the Boone County Civil Service Commission had prescribed this particular training program prior to May or June of 1972 and assuming further that a deputy sheriff had taken such a course or had undertaken such training, what advantage, if any, would that particular existing deputy sheriff have with regard to the test that, let's say, a deputy sheriff who did not take the job training program?

'A. If the examination is based on this, teaching this course of study, obviously the person who had the advantage of the course would have a great advantage.

'Q. Now how about the aptitude examination which the Boone County Civil Service Commission gave on or about June of 1972? Would a person having taken this course have any particular...