Staten v. Dean

• Decision Date: 26 October 1995
• Docket Number: No. 22640,22640
• Citation: 464 S.E.2d 576,195 W.Va. 57
• Court: West Virginia Supreme Court
• Parties: Kenneth F. STATEN, Appellee, v. Jean DEAN, Mayor of the City of Huntington, a Municipal Corporation, Appellant.

Page 576

464 S.E.2d 576

195 W.Va. 57

Kenneth F. STATEN, Appellee, v. Jean DEAN, Mayor of the City of Huntington, a Municipal Corporation, Appellant.

No. 22640.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 19, 1995.

Decided Oct. 26, 1995.

[195 W.Va. 58] Syllabus by the Court

1. The standard of appellate review of a circuit court's order granting relief through the extraordinary writ of mandamus is de novo.

2. "A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syllabus Point 1, State ex rel. Billy Ray C. v. Skaff, 190 W.Va. 504, 438 S.E.2d 847 (1993); Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).

3. "To entitle one to a writ of mandamus, the party seeking the writ must show a clear legal right thereto and a corresponding duty on the respondent to perform the act demanded." Syllabus Point 1, Dadisman v. Moore, 181 W.Va. 779, 384 S.E.2d 816 (1989); Syllabus Point 2, State ex rel. Cooke v. Jarrell, 154 W.Va. 542, 177 S.E.2d 214 (1970).

4. "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." Syllabus Point 1, Appeal of Prezkop, 154 W.Va. 759, 179 S.E.2d 331 (1971).

5. Under W.Va.Code 8-14-12 (1972), eligibility for reinstatement to a municipal police department is governed by events that were extant at the time of the resignation and not at the time of reinstatement.

6. If an applicant for reinstatement previously resigned from the police force under charges of misconduct or other misfeasance, he or she is per se ineligible for reinstatement under W.Va.Code 8-14-12 (1972).

7. The charge of misconduct or other misfeasance which constitutes a per se basis for ineligibility for reinstatement under W.Va.Code 8-14-12 (1972), need not rise to the level of a formal arrest, indictment or information. There can be a charge of misconduct or other misfeasance by an acknowledgment of a police officer that he or she has committed an act which violates the laws of the United States or any of the various states.

R.R. Fredeking, II, Fredeking & Fredeking, Huntington, for Appellee.

Michael J. Farrell, Charlotte A. Hoffman, Farrell & Farrell, L.C., Huntington, for Appellant.

RECHT, Justice:

The Mayor of the City of Huntington appeals a writ of mandamus issued by the Circuit Court of Cabell County ordering the Mayor to comply with the recommendation of the Police Civil Service Commission of the City of Huntington to reinstate Kenneth F. Staten as a city police officer. The Mayor has refused to reinstate Staten on the basis that he was not eligible for reinstatement under W.Va.Code 8-14-12 (1972). ¹ Staten was originally appointed as a police officer with the City of Huntington Police Department on September 15, 1978. Some time between 1991-92, a paternity action was instituted against Staten in the Circuit Court of Cabell County. In late 1992, a federal investigation was conducted into allegations that Staten had attempted to falsify the results of a court ordered blood test, which would determine whether he was the father in the paternity suit. The investigation revealed that Staten had contacted Lynette Black, an employee at Cabell Huntington Hospital and requested her assistance in falsifying the test results. Staten agreed to pay Black and another hospital employee a sum of money to falsify the results to disestablish paternity in order to avoid paying child support. If proven, these allegations could amount to violations of federal law (mail fraud, 18 U.S.C.A. § 1341 (West Supp.1995)) and state laws (obstruction of justice, W.Va.Code 61-5-27 (Supp.1995); and conspiracy, W.Va.Code 61-10-31 (1971)).

In December 1992, the office of the United States Attorney advised Staten that the Department of Justice was prepared to prosecute him for mail fraud in the United States District Court for the Southern District of West Virginia. As a result of the allegations and investigation, and in an effort to avoid the unpleasant alternative of a criminal proceeding, Staten entered into a Federal Pretrial Diversion Program, the cornerstone of which was an Agreement for Pretrial Diversion ("Agreement").

This Agreement was between Staten and the United States of America and the preamble reads, "As a result of an investigation conducted by federal law enforcement officials, it appears that you have committed an offense in violation of federal law, to-wit: a violation of Title 18, United States Code, Section 1341 (mail fraud), [sic] or about October, 1992." Among other conditions, the Agreement mandated that, "upon placement in the Pretrial Diversion Program you will immediately resign your employment at City of Huntington."

Staten signed the agreement on January 22, 1993, and his resignation from the police force was effective on that same date. The United States District Court for the Southern District of West Virginia approved the agreement on May 21, 1993, and Staten was required to serve one year on probation. ² The Agreement was placed under seal by the court.

On April 6, 1994, Staten requested reinstatement to the City of Huntington Police Department pursuant to W.Va.Code 8-14-12 (1972). The Police Civil Service Commission ("Commission") reviewed the application on June 6, 1994. A majority of the Commission decided to recommend that Staten be reinstated

[195 W.Va. 60] to the police force. ³ The Mayor of Huntington, however, refused to reinstate Staten or place him on the city payroll. On June 16, 1994, Staten filed a petition for writ of mandamus in the Circuit Court of Cabell County to compel the Mayor to reinstate him based upon the Commission's decision to certify his eligibility for reinstatement. The Mayor's refusal to reinstate Staten is predicated on the recognition that Staten had no right to be reinstated and correspondingly she was under no duty to reinstate him. The circuit court issued a rule to show cause and subsequently entered a writ of mandamus, directing the Mayor of the City of Huntington to reinstate Staten. ⁴

I. STANDARD OF REVIEW

The standard of appellate review of a circuit court's order granting relief through the extraordinary writ of mandamus is de novo. Applying this de novo standard, we agree with the Mayor's reasoning in refusing to reinstate Staten and accordingly reverse the decision of the Circuit Court of Cabell County and remand to that court with directions to dissolve the writ previously awarded.

" 'A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.' " Syllabus Point 1, State ex rel. Billy Ray C. v. Skaff, 190 W.Va. 504, 438 S.E.2d 847 (1993); Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969). "To entitle one to a writ of mandamus, the party seeking the writ must show a clear legal right thereto and a corresponding duty on the respondent to perform the act demanded." Syllabus Point 1, Dadisman v. Moore, 181 W.Va. 779, 384 S.E.2d 816 (1989); Syllabus Point 2, State ex rel. Cooke v. Jarrell, 154 W.Va. 542, 177 S.E.2d 214 (1970).

II.

ELIGIBILITY FOR REINSTATEMENT UNDER W.VA. CODE 8-14-12 (1972)

The core issue governing Staten's right to reinstatement and the Mayor's duty to recognize that right is whether Staten resigned from the police force at a time when there were charges of misconduct or other misfeasance pending against him, making him ineligible for reinstatement.

The West Virginia Legislature has made it clear that a police officer who resigns in the face of charges of misconduct or misfeasance is ineligible for reinstatement. The eligibility requirements for reinstatement are mandated by statute and the code allows for reinstatement, "[p]rovided, [t]hat in the event We hold that under W.Va.Code 8-14-12 (1972), eligibility for reinstatement to a municipal police department is governed by events that were extant at the time of the resignation and not at the time of reinstatement. Accordingly, Staten can only possess a right to be reinstated if at the time of his resignation on January 22, 1993, there were no charges of misconduct or other misfeasance.

                [195 W.Va. 61] any applicant formerly served upon the paid police department of the city to which he makes application, for a period of more than his probationary period, and resigned from the department at a time when there were no charges of misconduct or other misfeasance pending against such applicant, within a period of two years next preceding the date of his application, and at the time of his application resides within the corporate limits of the city in which the paid police department to which he seeks appointment by reinstatement is located, then such individual shall be eligible for appointment by reinstatement in the discretion of the policemen's civil service commission...."   W.Va.Code 8-14-12 (1972) (emphasis added).  All of these requirements must coexist in order for an applicant to be eligible for reinstatement and entitled to review by the Commission.  In the event that charges of misconduct or other misfeasance are pending at the time of resignation, the Commission does not have the power to review an application for reinstatement because that person is simply not eligible for reinstatement
                

III. WAS STATEN ELIGIBLE FOR REINSTATEMENT?

The Police Civil Service Commission has the responsibility for reviewing applications for reinstatement to the police department. W.Va.Code 8-14-12 (1972). In the case, sub judice,...