Johnson v. City of Welch, 18607

• Decision Date: 15 December 1989
• Docket Number: No. 18607,18607
• Citation: 388 S.E.2d 284,182 W.Va. 410
• Court: West Virginia Supreme Court
• Parties: Albert JOHNSON, Joseph Jones and Joseph Lyons v. CITY OF WELCH and the City of Welch Civil Service Commission.

Page 284

388 S.E.2d 284

182 W.Va. 410

Albert JOHNSON, Joseph Jones and Joseph Lyons v. CITY OF WELCH and the City of Welch Civil Service Commission.

No. 18607.

Supreme Court of Appeals of West Virginia.

Dec. 15, 1989.

Syllabus by the Court

1. "A final order of a police civil service commission based upon a finding of fact will not be reversed by a circuit court upon appeal unless it is clearly wrong or is based upon a mistake of law." Syl. Pt. 1, Appeal of Prezkop, 154 W.Va. 759, 179 S.E.2d 331 (1971).

2. "The judgment of a circuit court affirming a final order of a police civil service commission, upon appeal therefrom as provided by statute, will not be reversed by this Court unless the final order of the commission was against the clear preponderance of the evidence or was based upon a mistake of law." Syl. Pt. 2, Appeal of Prezkop, 154 W.Va. 759, 179 S.E.2d 331 (1971).

Kathryn R. Bayless, Princeton, for Albert Johnson, Joseph Jones and Joseph Lyons.

Sarah N. Hall, Welch, for City of Welch and the City of Welch Civil Service Com'n.

PER CURIAM:

This case is before this Court upon the joint appeal of the petitioners, Albert Johnson, Joseph Jones and Joseph Lyons, from an opinion order and an amended opinion order of the Circuit Court of McDowell County, issued on April 16, 1987, and April 27, 1987, respectively. The circuit court also issued additional findings of fact and conclusions of law on October 17, 1988. The orders and additional findings of fact and conclusions of law upheld the decision of the Welch Police Civil Service Commission to discharge the petitioners, who were police officers for the City of Welch. We affirm the decision of the McDowell County Circuit Court.

Petitioners were discharged on three separate dates for unrelated reasons, but raise the same issues on appeal. Albert Johnson was discharged on January 27, 1985, as a result of unexcused absences from work. Johnson had been warned on prior occasions about unexcused absences. The record reflects at least four unexcused absences on separate occasions. Johnson also failed to report to work from January 19, 1985, to January 27, 1985. He is alleged to have been ill during this time period and was treated by a doctor, but he failed to call in sick to the department during the duration of his illness, and never produced a doctor's excuse. The doctor testified before the commission, but was unsure of the dates he had treated him.

Joseph Jones was discharged on February 6, 1985 for unexcused absences and failure to complete paperwork concerning an investigation. The explanation Mr. Jones gave for the failure to complete the report was that his shift had ended and it was his understanding that the officer who completed the investigation on the next shift would prepare the paperwork for the entire investigation. From January 1, 1984, to February 6, 1985, Jones had 17 unexcused absences. One of the absences, occurring on January 24, 1984, was because he claimed to have been too inebriated to perform his duties. On that occasion, he did not call the police department to inform them of his circumstances, claiming he was not near a telephone.

Joseph Lyons was discharged on December 8, 1984. His discharge resulted from the fact that he consumed alcohol while on duty and in uniform on December 5, 1984. He ordered a beer in a restaurant, despite questions by the waitress and the management as to the propriety of his order. He claims he did not drink the beer, but ordered it for his co-worker, Albert Johnson, who was off duty at that time. Both Johnson and Lyons testified to this effect, but Johnson was never seen in the restaurant that evening by employees.

Evidentiary hearings were held before the Welch Police Civil Service Commission. A hearing was held on August 9, 1985, for Albert Johnson, and on September 20, 1985, for Joseph Jones and Joseph Lyons. The Police Civil Service Commission upheld the dismissals of the three officers. The petitioners appealed the decision of the Commission to the McDowell County Circuit Court. The McDowell County Circuit Court affirmed the Commission's decision.

Petitioners raise several issues on appeal in an attempt to reverse the decision of the Welch Police Civil Service Commission and the McDowell County Circuit Court.

The first argument raised by petitioners is that there was no Police Civil Service Commission in effect at the time of the officers' dismissals, and therefore the commission possessed no power to discharge the officers. We find that there was a Police Civil Service Commission in operation in Welch at the time of the officers' dismissals.

West Virginia Code § 8-14-7 (1986) provides that "[i]n every Class I and Class II city having a paid police department, there shall be a 'Policemen's Civil Service Commission.' " At the time of the dismissals at issue here, Welch was neither a Class I nor Class II city, but was actually a Class III city. West Virginia Code § 8-14-21 (1986) provides that a Class III or IV town that did not have a police civil service system as of July 1, 1969, could hold an election to determine if the citizens wished to be covered by a police civil service system. Welch never held an election, but did not need to, for W.Va.Code § 8-14-21 further provides that "[t]he provisions of this section shall not apply to any such city, town or village operating under police civil service on the effective date of this article [July 1, 1969]." West Virginia Code § 8-14-23 (1986) also provides that "[a]ny police civil service system established in accordance with the provisions of former article five-A of this chapter or this article fourteen [§ 8-14-1 et seq.] shall be or remain mandatory and shall be governed by the provisions of this article fourteen ... as if such Class III city ... were a Class I or Class II city...." Records show that there did exist a police civil service commission in Welch as early as 1937. There was a period of time where the Commission was inactive ¹, but this period of inactivity did not serve to dismantle the Commission. Since the system was established under former W.Va.Code § 8-5A-1-21 (1937) it remained mandatory and in existence since its establishment and was in existence at the time period at issue here.

The petitioners assert that the Commission should not have upheld the dismissals because the five-step corrective discipline procedure in the City of Welch personnel handbook was not followed. The procedure entails verbal and written warnings, suspension and lastly dismissal. We find that the personnel handbook was not binding on the Welch Police Civil Service Commission.

West Virginia Code § 8-14-20 (1986) provides that an officer may be removed for just cause and that he is entitled to a written statement listing the reasons for his dismissal. There was compliance with this statutory mandate with each of the petitioners. The statutory provisions of the Police Civil Service Commission do not provide for a disciplinary process such as that embodied in the City of Welch personnel handbook. Furthermore, W.Va.Code § 8-14-23 provides that the intention of the statutory provisions governing the police civil service commission is "to furnish a complete and exclusive system for the ... discharge ... of all members of all paid police...