Kendrick v. Johnson, 14564
| Decision Date | 30 June 1981 |
| Docket Number | No. 14564,14564 |
| Citation | 279 S.E.2d 646,167 W.Va. 269 |
| Parties | Michael KENDRICK v. Ralph JOHNSON, Sheriff, etc. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
"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, City of Logan v. Dingess, W.Va., 242 S.E.2d 473 (1978), quoting, Syl. pt. 1, Appeal of Prezkop, 154 W.Va. 759, 179 S.E.2d 331 (1971).
DiTrapano, Jackson & Buffa and E. Joseph Buffa, Jr., Charleston, for appellant.
Ernest V. Morton, Jr., Webster Springs, for appellee.
In this appeal, Ralph Johnson, the Sheriff of Nicholas County, West Virginia, seeks reversal of a judgment of the Circuit Court of Nicholas County reinstating the appellee, Michael Kendrick, to his position as a deputy sheriff. Johnson discharged the appellee from employment by letter effective September 1, 1977. The appellee denied the charges and a hearing was held before the Nicholas County Deputy Sheriff's Civil Service Commission which sustained the discharge, holding that the sheriff met his burden of proving "just cause" for dismissal. W.Va.Code, 7-14-17(a). The deputy appealed to the Circuit Court of Nicholas County which reversed the decision of the civil service commission and ordered reinstatement with back pay. Thereafter, this Court granted the sheriff's petition for review of the circuit court's decision. For the reasons that follow, we reverse and set aside the judgment of the trial court.
The civil service commission in upholding the dismissal found, among other things, that (1) the deputy used offensive language in the presence of three members of the Nicholas County Emergency Ambulance Service wholly without justification; (2) the deputy unnecessarily threatened to impose criminal penalties upon the driver of the ambulance; and (3) the deputy probably used excessive physical force and personal abuse in the arrest of an individual initially stopped for an alleged traffic violation.
The circuit court did not question the Commission's first two findings of misconduct but ruled that the deputy's transgressions were not sufficient to warrant dismissal. The court also expressly affirmed the Commission's finding that the deputy probably used excessive force and personal abuse in making an arrest, but concluded this finding did not warrant dismissal because the deputy's actions were not taken "without justification."
Final orders of civil service commissions are subject to limited judicial review. In reviewing the decisions of police civil service commissions, we have held:
"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, City of Logan v. Dingess, W.Va., 242 S.E.2d 473 (1978), quoting, Syl. pt. 1, Appeal of Prezkop, 154 W.Va. 759, 179 S.E.2d 331 (1971).
We have carefully considered the evidence presented to the civil service commission and cannot say that its findings are clearly wrong or that the Commission made an error...
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