House v. Civil Service Com'n of State of W.Va.

• Decision Date: 21 April 1989
• Docket Number: No. 18481,18481
• Citation: 181 W.Va. 49,380 S.E.2d 216
• Court: West Virginia Supreme Court
• Parties: Frank R. HOUSE v. CIVIL SERVICE COMMISSION OF the STATE OF WEST VIRGINIA, and the West Virginia Alcohol Beverage Control Commission.

Page 216

380 S.E.2d 216

181 W.Va. 49

Frank R. HOUSE v. CIVIL SERVICE COMMISSION OF the STATE OF WEST VIRGINIA, and the West Virginia Alcohol Beverage Control Commission.

No. 18481.

Supreme Court of Appeals of West Virginia.

April 21, 1989.

Syllabus by the Court

1. "W.Va.Code, 29-6-15, requires that the dismissal of a civil service employee be for good cause, which means misconduct of a substantial nature directly affecting the rights and interest of the public, rather than upon trivial or inconsequential matters, or mere technical violations of statute or official duty without wrongful intention." Syllabus Point 1, Oakes v. West Virginia Dep't of Fin. & Admin., 164 W.Va. 384, 264 S.E.2d 151 (1980).

2. "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." Syllabus, Guine v. Civil Serv. Comm'n, 149 W.Va. 461, 141 S.E.2d 364 (1965).

William R. Wooten, Wooton, Wooton, & Fragile, Beckley, for Frank R. House.

Jan J. Fox, Sp. Asst. Atty. Gen., Charleston, for ABCC.

PER CURIAM:

Frank R. House appeals from a final order of the West Virginia Civil Service Commission (CSC) upholding the appellant's dismissal from employment with the West Virginia Alcohol Beverage Control Commission (ABCC). We granted this appeal to determine whether the record supported the CSC's finding that the appellant had been guilty of misconduct justifying dismissal. After examining the record, we conclude that the evidence does not support a dismissal and we reverse the decision of the CSC.

Mr. House, a cashier in a Beckley ABCC store, was employed by that agency for approximately ten and one-half years. He was also a lieutenant in the West Virginia Army National Guard. By letter dated February 23, 1987, the ABCC Commissioner dismissed Mr. House, primarily for his "attempt to receive payment of State funds for military services not rendered nor entitled to receive, resulting in gross misconduct."

Two specific instances of misconduct are alleged. The first centered on December 5 and 6, 1986, when Mr. House went to the National Guard Armory to prepare for an inspection. Because the CSC made no finding of misconduct as to this incident, we decline to discuss it. The second charge, and the only one considered by the CSC in its decision, ¹ related to a December 12, 1986 request for duty leave made to the ABCC.

The record shows that Mr. House had a duty day on December 13, 1986, at the National Guard Armory. He requested a training certificate for December 12 and 13, 1986, from Specialist Varney, who was the unit administrator. The order was signed by Specialist Varney rather than Lieutenant Chambers. It is clear, however, that this was common practice, as the CSC acknowledged in its statement of facts: "Lt. Chambers testified that it was common practice, however, that Specialist Varney would sign his name to official documents."

The crux of the complaint is that there was no scheduled training session on December 12, 1986. Mr. House admits this fact, but states that he had anticipated leaving work early on December 12 so he could attend his grandfather's birthday party in Beckley. Because Mr. House had used up his thirty days military leave, this extra day was charged against his annual leave with the ABCC.

We set forth the dismissal standard for a State civil service employee in Syllabus Point 1 of Oakes v. West Virginia Dep't of Fin. & Admin., 164 W.Va. 384, 264 S.E.2d 151 (1980):

"W.Va.Code, 29-6-15, requires that the dismissal of a civil service employee be for good cause, which means misconduct of a substantial nature directly affecting the rights and interest of the public, rather than upon trivial or inconsequential matters, or mere technical violations of statute or official duty without wrongful intention."

While a final order of the CSC based upon a finding of fact will not be reversed by this Court upon appeal unless it is clearly wrong, Vosberg v. Civil Serv. Comm'n, 166 W.Va. 488, 494, 275 S.E.2d 640, 643 (1981), this case is controlled by our traditional rule of law first stated in Guine v. Civil Serv. Comm'n, 149 W.Va. 461, 141 S.E.2d 364 (1965), in its single Syllabus:

"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."

See also American Fed. of State, County & Municipal Employees v. Civil Serv. Comm'n, 174 W.Va. 221, 324 S.E.2d 363 (1984); Adkins v. Civil Serv. Comm'n, 171 W.Va. 132, 298 S.E.2d 105 (1982); Crawford v. Erwin, 171 W.Va. 7, 297 S.E.2d 206 (1982); Drennen v. Department of Health, 163 W.Va. 185, 255 S.E.2d 548 (1979); Yates v. Civil Serv. Comm'n, 154 W.Va. 696, 178 S.E.2d 798 (1971).

The CSC decision based its good...