Powers v. Goodwin, 16291

• Decision Date: 13 July 1984
• Docket Number: No. 16291,16291
• Citation: 324 S.E.2d 701,174 W.Va. 287
• Court: West Virginia Supreme Court
• Parties: Cecil POWERS, et al. v. James R. GOODWIN, et al., Dfts. Below, Ed Cooke and James W. Armstrong, Appellants, County Commissioners' Assoc. of W.Va., W.Va. Assoc. of County and Circuit Clerks, W.Va. Assessors Association, Interveners.

Page 701

324 S.E.2d 701

174 W.Va. 287

Cecil POWERS, et al. v. James R. GOODWIN, et al., Dfts. Below, Ed Cooke and James W Armstrong, Appellants, County Commissioners' Assoc. of W.Va., W.Va. Assoc. of County and Circuit Clerks, W.Va Assessors Association, Interveners.

No. 16291.

Supreme Court of Appeals of

West Virginia.

July 13, 1984.

Dissenting Opinion Sept. 25, 1984.

[174 W.Va. 288] Syllabus by the Court

1. The standard of proof for removal proceedings under W.Va.Code, 11-8-31, is by clear and convincing evidence.

2. "The finding of a trial court upon facts submitted to it in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by an appellate court unless the evidence plainly and decidedly preponderates against such finding." Syllabus Point 6, Daugherty v. Ellis, 142 W.Va. 340, 97 S.E.2d 33 (1957).

3. Except for malicious prosecution suits, it is generally held that reliance on advice of counsel is not an absolute defense to charges that a person is acting unlawfully or negligently.

William L. Jacobs, Parkersburg, for appellees.

Peter A. Hendricks, Madison, for appellants.

John S. Sibray, Charleston, for County Com'rs' Ass'n of W.Va., W.Va. Ass'n of County and Circuit Clerks and W.Va. Assessors Ass'n.

MILLER, Justice:

This is a second appeal in connection with removal proceedings under W.Va.Code, 11-8-31, and W.Va.Code, 6-6-7, brought against Ed Cooke and James Armstrong, two Boone County Commissioners, who had voted to reimburse legal fees incurred by James Goodwin, the third Boone County Commissioner. In the first appeal, Powers v. Goodwin, W.Va., 291 S.E.2d 466 (1982), we established the law of the case and reversed the circuit court's holding that Commissioners Cooke and Armstrong were not subject to removal. In remanding this case, we made the following observation:

"It would appear to this Court that on the facts presented to the court below in the joint motions for summary judgment that the reimbursement of Mr. Goodwin for his attorneys' fees was probably an unauthorized expenditure since the foundation of both the criminal prosecution and petition to remove him from office was personal malfeasance entirely unrelated to the discharge of his official duties." 291 S.E.2d at 477.

We then proceeded to establish some specific guidelines to assist the circuit court on the remand. ¹ Upon remand, the circuit It is this removal order that is being appealed. A number of errors are assigned, which may be grouped into three main categories: that the evidence was insufficient to uphold removal; that reliance on the advice of counsel was a defense to removal; and that there were a number of procedural errors.

[174 W.Va. 289] court ² proceeded to hold additional hearings and concluded in a detailed opinion that the actions of Commissioners Cooke and Armstrong met the requirements of category two of the guidelines contained in Powers v. Goodwin, i.e., the actions were performed in good faith, but negligently. As a consequence of this finding, the court held that these two commissioners should be removed from office, but could not be held personally liable for the attorney's fees, which amounted to $14,547.64.

I. SUFFICIENCY OF THE EVIDENCE

With regard to the removal of a public official under W.Va.Code, 11-8-31, ³ it does not appear that we have had occasion to specify the degree of proof necessary to warrant a removal from office. In this proceeding, removal was also sought under W.Va.Code, 6-6-7. This latter provision contains the procedural requirements for removal ⁴ and we have held in Syllabus Point 9 of Evans v. Hutchinson, 158 W.Va. 359, 214 S.E.2d 453 (1975), that "[t]o warrant removal of an official pursuant to Code 1931, 6-6-7, clear and convincing evidence must be adduced to meet the statutory requirement of satisfactory proof." See also Kemp v. Boyd, W.Va., 275 S.E.2d 297, 301 (1981); In the Matter of Boso, W.Va., 231 S.E.2d 715, 718 (1977). Because of the obvious similarity in the end result between the two removal statutes, we believe that the same evidentiary standard of proof should apply. Furthermore, it may often be the case, as it is here, that a proceeding will be brought under both removal statutes so that a uniform standard of proof would obviously be desirable. See Edwards v. Hylbert, 146 W.Va. 1, 118 S.E.2d 347 (1960). We, therefore, conclude that the standard of proof for removal proceedings under W.Va.Code, 11-8-31, is by clear and convincing evidence.

It should be noted that under both statutes, a court will hear the case in lieu of a jury. We have held under both statutes that a court's findings of fact are entitled to the same weight as a jury verdict or as more fully stated in Syllabus Point 6 of Daugherty v. Ellis, 142 W.Va. 340, 97 S.E.2d 33 (1957):

"The finding of a trial court upon facts submitted to it in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by an appellate court unless the evidence plainly See also Edwards v. Hylbert, supra.

and decidedly preponderates against such finding."

In the present case, the main argument over the trial judge's findings of fact is that they are not supported by the evidence. Particular emphasis is placed on the fact that Commissioner Goodwin was not removed from office for his admitted use of the county's telephone credit card for his personal business. ⁵ However, this argument ignores the critical fact that the removal charge against Commissioner Goodwin did not involve a matter relating to his official duties as a commissioner. As we noted in our earlier opinion, the reimbursement of Commissioner Goodwin for his attorney's fees was probably an unauthorized expenditure since the earlier proceedings which gave rise to the fees were "entirely unrelated to the discharge of his official duties." Powers v. Goodwin, 291 S.E.2d at 477. The circuit court found, and this is clearly supported by the record, that Commissioners Cooke and Armstrong were aware of this fact.

Moreover, neither Commissioners Cooke nor Armstrong attempted to make any personal investigation of the fee bill nor to have some explanation from Commissioner Goodwin nor to require some itemization of the bill. It appeared that some of the fee charges were incurred well prior to the institution of the removal charges and were for matters unrelated to the removal proceeding.

In Powers v. Goodwin, we referred to the negligence standard from Lane v. Blair, 162 W.Va. 281, 250 S.E.2d 124 (1978), that placed the duty on public officials to exercise some diligence. See also Syllabus Point 2, Edwards v. Hylbert, supra. It is manifest that Commissioners Cooke and Armstrong failed to make any investigations on their own and that they simply turned the entire matter over to an assistant prosecutor with the general request that he tell them if payment was proper. They made no attempt to question or otherwise discuss the matter with him. Given this record, we uphold the trial court's finding of negligence.

II. RELIANCE ON ADVICE OF COUNSEL

Commissioners Cooke and Armstrong strenuously argue that any negligence on their part should be excused as a matter of law because they acted on the advice of an assistant prosecuting attorney. Both testified that once the fee bill was presented by Commissioner Goodwin, they made no independent investigation of it, but simply turned the matter over to the assistant prosecutor.

The circuit court found that at a commissioner's meeting on June 1, 1981, Commissioner Goodwin's bill for legal fees was taken up by Commissioners Cooke and Armstrong. Commissioner Goodwin was present at the meeting, but stepped down as commissioner to present his fee bill, which was not itemized.

Shortly prior to the presentation of the fee bill, the assistant prosecutor gave the other two commissioners a legal memorandum, which, without reciting any facts surrounding Commissioner Goodwin's removal proceeding, indicated that payment of the fee bill would be proper. Included in the memorandum was the statement that "the general rule of law [is] that a public body may indemnify a public official, who acts in good faith, for legal expenses incurred in suits brought against him for acts committed in the discharge of his duties."

The trial court found that neither Cooke nor Armstrong questioned the assistant prosecutor regarding his memorandum and that the fee bill showed legal fees totaling more than $10,000 that were incurred by Goodwin prior to the time that any removal proceedings had been brought. The court also found that Cooke and Armstrong We have not had occasion to discuss the question of what role the advice of counsel may have where a public official has been charged with neglect of duty. In Edwards v. Hylbert, 146 W.Va. 1, 118 S.E.2d 347 (1960), the issue was raised in a proceeding involving the removal of the mayor and certain city councilpersons, but was not discussed because the court found that they had not relied on advice of counsel.

made no inquiry as to what the fees were incurred for, even though they were aware that Goodwin had been involved in earlier charges not connected with the credit card removal proceeding. The court also found that at the time the bill was authorized to be paid, Cooke and Armstrong had persuaded[174 W.Va. 291] Goodwin to agree that he would reimburse the county if it were subsequently determined that the payment was illegal. These findings are supported by the record.

Our earlier case of Hamrick v. McCutcheon, 101 W.Va. 485, 133 S.E. 127 (1926), involved an attempted removal of the members of a board of education. Mention was made in the opinion that the board had consulted an attorney, but no discussion of the relevant legal principles was undertaken. ⁶

Reliance on advice of counsel as a defense is a subject that does not appear to have been extensively discussed by the courts. ⁷ It seems clear, though, that the party...