McMillian v. Ashley
| Decision Date | 03 March 1995 |
| Docket Number | No. 22340,22340 |
| Citation | 193 W.Va. 269,455 S.E.2d 921 |
| Parties | Mark L. McMILLIAN, Plaintiff Below, Appellee, v. Arden ASHLEY, Sheriff of Kanawha County, in Place of Danny Jones, Former Sheriff of Kanawha County, Defendant Below, Respondent. Arden D. ASHLEY, Sheriff of Kanawha County, Appellant, v. Mark McMILLIAN, Appellee. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. "A final order of a deputy sheriffs' 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 point 1, Mangum v. Lambert, 183 W.Va. 184, 394 S.E.2d 879 (1990).
2. "W.Va.Code, 7-14-17 (1981), requires that dismissal of a deputy sheriff covered by civil service be for just cause, which means misconduct of a substantial nature directly affecting the rights and interests of the public, rather than upon trivial or inconsequential matters, or mere technical violations of statute or official duty without a wrongful intention." Syllabus point 2, Mangum v. Lambert, 183 W.Va. 184, 394 S.E.2d 879 (1990).
3. Syllabus point 5, Mangum v. Lambert, 183 W.Va. 184, 394 S.E.2d 879 (1990).
4. A deputy sheriff who takes an unofficial guest on an extradition assignment, the purpose of which is to return a felony fugitive to this State, needlessly and seriously endangers the public safety. Further, in doing so he unnecessarily subjects his employer to an unlimited potential for liability. Such actions constitute misconduct, and it is misconduct of a substantial nature directly affecting the rights and interests of the public.
5. A deputy sheriff who takes an unofficial guest on an official assignment and seeks reimbursement from public funds for additional expenses occasioned thereby, violates the statutory law of West Virginia. Such act is, by its very nature and for obvious reasons, seriously wrongful conduct potentially damaging to the rights and interests of the public, and justifies his dismissal.
James M. Cagle, Charleston, for appellee.
Phillip Gaujot, Charleston, for appellant.
1
By special order dated 23 June 1987, Sheriff Danny Jones of Kanawha County, West Virginia, terminated the employment of Deputy Sheriff Mark L. McMillian. The Civil Service Commission for Deputy Sheriffs for Kanawha County (Commission) reversed the termination order and granted Deputy McMillian back pay and attorney's fees. By an order dated 9 February 1994, the Circuit Court of Kanawha County affirmed the Commission's ruling. Sheriff Jones' successor, Sheriff Arden Ashley, appeals the circuit court's order.
In this case we decide whether the Commission acted properly when it ruled that Sheriff Jones lacked just cause for the dismissal of Deputy McMillian.
Sheriff Jones based his termination of Deputy McMillian on three separate incidents of alleged misconduct: (1) misconduct relating to a May 1985 extradition trip to New Mexico to retrieve a prisoner named Wolfe Winton; (2) misconduct relating to a March 1986 extradition trip to Florida to retrieve a prisoner named Leo Facemeyer; and (3) misconduct while serving as bailiff during the 13 June 1987 night session of the Kanawha County Magistrate Court.
Subsequent to his dismissal, Deputy McMillian requested a hearing before the Commission pursuant to W.Va.Code § 7-14-17(a). 2 A hearing was conducted, and a ruling favorable to Deputy McMillian was issued by the Commission and subsequently affirmed by the Circuit Court of Kanawha County. In Ashley v. McMillian, 184 W.Va 590, 402 S.E.2d 259 (1991), this Court reversed and remanded the matter for a de novo hearing before the Commission. 3
The matter was again heard by the Commission in six sessions between 16 December 1991 and 15 May 1992. On 13 November 1992, the Commission handed down its findings and rulings through its "Commission Order," a twenty-seven page document which was signed by two commissioners. 4 Acknowledging the decision to be "a very close call," the Commission concluded the Sheriff "... failed to demonstrate that Mr. McMillian acted ... with a dishonest intent." Further, "... absent dishonesty, we conclude that Mr. McMillian's conduct, while not laudable, did not amount to substantial misconduct affecting the rights and interests of the public."
Sheriff Ashley, as successor to Sheriff Jones, appealed this ruling to the circuit court. By order of 21 March 1994, Judge John L. Cummings, sitting by designation on the Sixth Judicial Circuit, ruled the Commission's findings were not clearly wrong and affirmed the Commission's award of back pay and attorney's fees. It is from this order that Sheriff Ashley now appeals.
The standard of review which guides appellate resolution of the issues herein was announced in syllabus point 1 of Appeal of Prezkop, 154 W.Va. 759, 179 S.E.2d 331 (1971), wherein it was stated: "A final order of a police civil service commission based upon a finding of fact will not be reversed ... unless it is clearly wrong or is based upon a mistake of law." (Emphasis added.)
More recently, in Mangum v. Lambert, 183 W.Va. 184, 394 S.E.2d 879 (1990), this Court adopted the holding in Appeal of Prezkop, supra, but further held in syllabus point 1:
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. (Emphasis added.)
West Virginia Code § 7-14-17 permits a sheriff to discharge a protected deputy only for "just cause." 5 As previously indicated, the issue here on appeal is whether the circuit court and the Commission erred in ruling there was no just cause for Deputy McMillian's dismissal.
In Johnson v. City of Welch, 182 W.Va. 410, 388 S.E.2d 284, 287 (1989), this Court held as follows:
Just cause has been defined as a substantial cause 67 C.J.S. Officers § 120b (1936). See also City of Logan v. Dingess, 161 W.Va. 377, 381, 242 S.E.2d 473, 475 (1978); Thurmond v. Steele, 159 W.Va. 630, 225 S.E.2d 210 (1976); Guine v. Civil Service Commission, 149 W.Va. 461, 141 S.E.2d 364 (1965).
In syllabus point 2 of Mangum v. Lambert, 183 W.Va. 184, 394 S.E.2d 879 (1990), we adopted the above principles and applied them to deputies:
W.Va.Code 7-14-17 (1981), requires that dismissal of a deputy sheriff covered by civil service be for just cause, which means misconduct of a substantial nature directly affecting the rights and interests of the public, rather than upon trivial or inconsequential matters, or mere technical violations of statute or official duty without a wrongful intention.
Further, in syllabus point 5 of Mangum we held that:
Seriously wrongful conduct by a civil service employee can lead to dismissal even if it is not a technical violation of any statute. The test is not whether the conduct breaks a specific law, but rather whether it is potentially damaging to the rights and interests of the public.
While Deputy McMillian's actions with regard to the May 1985 extradition trip and the 13 June 1987 night session of Kanawha County Magistrate Court raise serious questions concerning his conduct, we do not find it necessary to discuss those incidents within the context of this opinion. Rather, we find Deputy McMillian's actions and the circumstances surrounding the 1986 extradition trip amounted to misconduct justifying his dismissal for just cause.
In March of 1986, Deputy McMillian was duly assigned to proceed to the State of Florida to assume custody of and return Leo Facemeyer, a felony fugitive, to West Virginia. Deputy McMillian chose not to request the assistance of an additional law officer in the performance of this assignment; rather, he was accompanied by Ms. Tina Means, a secretary in the Kanawha County Sheriff's Department. Deputy McMillian was married at the time, but not to Ms. Means.
Upon arrival at the Tampa Airport in Florida, Deputy McMillian elected to spend the first night, along with Ms. Means, at the Don Ce Sar Beach...
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