Martin v. Pugh
| Decision Date | 10 July 1985 |
| Docket Number | No. 16500,16500 |
| Citation | 175 W.Va. 495,334 S.E.2d 633 |
| Court | West Virginia Supreme Court |
| Parties | Edward MARTIN v. Robert PUGH, as Chief of Police, City of Chester, West Virginia; Perry E. Ross, as Mayor, City of Chester, West Virginia; Charles Kology, Roy Cashdollar, Frank Decapio, Robert Stoneburner, and Kenneth Williams, all as Members of the City Council of the City of Chester, West Virginia; and the City of Chester, West Virginia. |
Syllabus by the Court
1. "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).
2. W.Va.Code, 8-14-15 [1969], requires an average score to be calculated and utilized for each candidate who takes the competitive examination for a police civil service position on more than one occasion during the three years next preceding the date of the prospective appointment.
3. The burden of proof is upon a candidate for appointment to a police civil service position to show that other candidates having higher average examination scores are no longer available for appointment for one or more of the reasons set forth in W.Va.Code, 8-14-14 and -15 [1969].
4. There must be strict compliance with the Police Civil Service Act, W.Va.Code, 8-14-6 to -23, and de facto appointments, based upon mere performance of duties as a police officer, are not contemplated under such Act.
5. Where a candidate for appointment to a police civil service position does not satisfy the requirements of W.Va.Code, 8-14-15 [1969] for inclusion in the list of certified eligibles, is not so certified by the policemen's civil service commission, and is not selected by the appointing officer from such list, his purported "appointment" in any other manner is void ab initio, and the municipality is not estopped from subsequently resisting his efforts to obtain recognition of his status pursuant to the void appointment.
James J. Sellitti, Sellitti & Nogay, Weirton, for appellee.
George J. Anetakis and Suzanne Belot, Volk, Robertson, Frankovitch & Anetakis, Weirton, for appellants.
This case is before this Court upon the petition of the appellants, the chief of police, mayor and city council of the City of Chester, West Virginia, for an appeal from the final order of the Circuit Court of Hancock County, West Virginia, entered on June 27, 1984. 1 By that order the circuit court affirmed the final order of the policemen's civil service commission for the City of Chester [hereinafter, "the commission"], dated October 11, 1983. The commission's order determined that the appellee, Edward Martin, was entitled to the status of full-time, as opposed to part-time, police officer of the City of Chester [hereinafter, "the city"] as of the date of his hiring (October 21, 1977) 2 but that, due to his failure earlier to pursue his grievance and the resulting prejudice to the city, he would not be entitled to the wages, insurance premium payments, retirement contributions, holiday pay and sick leave he would have received as a full-time officer working 40 hours per week, until the week of November 17, 1982.
Before the circuit court and this Court the appellee cross-assigns and briefs as error the determination that he is not entitled to the back wages and benefits prior to November 17, 1982.
This Court has before it the petition, all matters of record, and the briefs and argument of counsel. We believe that the orders of the commission and of the circuit court were based upon mistakes of law and consequently we reverse.
The commission's findings of fact are essentially uncontroverted, except as otherwise noted hereinafter. A rather detailed statement of these facts is set forth to clarify the application of legal principles.
In 1976, the city, through the policemen's civil service commission, established the practice of giving two eligibility tests, one for full-time officers, the other for part-time officers. 3 The full-time examination is more difficult, but there is no difference in the actual duties of full-time and part-time officers. Full-time officers are, however, provided with higher pay, health insurance benefits, retirement fund contributions, paid vacation days, and paid sick leave, whereas part-time officers are not.
The appellee took both tests on July 30, 1976, receiving a passing score on both. 4 On May 4, 1977, the appellee again took both examinations, passing the part-time but failing the full-time test. The appellee's passing score on the first full-time test placed him in sixth position of those passing that test, and in ninth position of those who passed either the first or second full-time test. The appellee's passing score on the first part-time test placed him in sixth position of those passing that test. His passing score on the second part-time placed him in a tie for second position among those passing that test and in a tie for fifth position of those who passed either the first or second part-time test (excluding David Winters--see below).
Only David Winters has at any time since these tests been appointed as a full-time officer. Officer Winters was in first position of all those who took the full-time test in 1976 or 1977. (Winters also took the part-time test, in 1976, and scored the highest).
On October 21, 1977, the city hired the appellee as a part-time officer. He was scheduled to work two days per week and was on call to substitute as needed.
At all relevant times the city has maintained three officers denominated as full-time, one of whom is the chief of police. It has maintained a varying number of part-time officers.
The official minutes of a regular meeting of city council held on July 1, 1978, indicate that the appellee was, at that meeting, "appointed" as a full-time officer. City officials testified that these minutes involve a clerical error insofar as the appellee's appointment as a full-time police officer is concerned. The commission found the city's testimony unpersuasive and insufficient to overcome the presumption that the minutes are correct. This finding is not clearly wrong.
After July, 1978, the appellee began working 40 hours per week but at part-time hourly wages instead of on a salaried basis. Apparently the city also began paying the appellee's health insurance premiums at this time.
On July 1, 1979, the appellee was informed that he would be returned to only two days per week and that the city would no longer pay for his insurance.
The appellee initiated a mandamus proceeding in the Circuit Court of Hancock County in 1979, seeking an adjudication that he was a full-time policeman and entitled to the benefits and protection of chapter 8, article 14 of the West Virginia Code. This case was dismissed because of the appellee's failure to exhaust his administrative remedies, that is, to have his grievance first heard by the policemen's civil service commission.
In August, 1979, the city returned the appellee to a five-day, forty-hour week.
On March 21, 1981, the appellee signed a statement purporting to acknowledge that he was neither a full-time officer nor entitled to the benefits of the so-called Police Civil Service Act.
On November 17, 1982, the city again reduced the appellee to two days (16 hours) per week, and on December 22, 1982, the mayor informed the appellee in writing that the reason for the reduced hours was that other part-time officers were more readily available. City officials testified that they also wished to apportion more evenly the available work among their part-time officers.
Pursuant to W.Va.Code, 8-14-20(a) [1980], 5 the appellee thereafter filed a grievance (and later an amended grievance adding city officials) seeking review by the policemen's civil service commission, not only of the city's November 17, 1982 action, but of all other relevant actions by the city since his hiring.
The commission ruled that W.Va.Code, 8-14-1 [1969] 6 contemplates only two types of police departments, first, those "paid police departments" with only full-time officers and second, those police forces with only voluntary or hourly officers. Thus, the commission was of the opinion that hybrid police departments having both full-time and part-time officers are not authorized by statute. Hence, not having only hourly officers, the city, according to the commission, may not lawfully hire any part-time police officers but must designate all officers as "full-time" and give only "full-time" officer examinations. The commission emphasized that the duties of full-time and part-time officers are the same under W.Va.Code, 8-14-6 [1969]. 7 Consequently, it reasoned that a test which is sufficient to put an armed policeman on the streets of the city with full police power must be deemed sufficient for appointment to the city's police force. Therefore, the commission ruled that the appellee, who on both occasions passed the test denominated as the part-time test, was thereby eligible for appointment on the basis of those tests, without regard to his scores on the tests denominated as full-time.
The commission did not concern itself with the appellee's rank relative to others who took the tests because the record does not reflect that anyone who scored higher than he did remained available for appointment.
In any event, the commission believed that the appellee's "appointment" as a full-time officer by city council became absolute at the conclusion of the probationary period thereafter, that is, on June 30, 1979, and the commission concluded that, if the city's act in so appointing was illegal, the city may not...
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