Swiger v. Civil Service Com'r

• Decision Date: 17 December 1987
• Docket Number: No. 17520,17520
• Court: West Virginia Supreme Court
• Parties: Ricky C. SWIGER v. CIVIL SERVICE COMMISSIONER and Department of Corrections.

Page 797

365 S.E.2d 797

179 W.Va. 133

Ricky C. SWIGER v. CIVIL SERVICE COMMISSIONER and Department of Corrections.

No. 17520.

Supreme Court of Appeals of

West Virginia.

Dec. 17, 1987.

Dissenting Opinion Feb. 19, 1988.

Syllabus by the Court

1. "The Due Process Clause, Article III, Section 10 of the West Virginia Constitution, requires procedural safeguards against State action which affects a liberty or property interest." Syl.Pt. 1, Waite v. Civil Service Commission, 161 W.Va. 154, 241 S.E.2d 164 (1977).

2. "The constitutional guarantee of procedural due process requires 'some kind of hearing' prior to the discharge of an employee who has a constitutionally protected property interest in his employment." Syl.Pt. 3, Fraley v. Civil Service Commission, 177 W.Va. 729, 356 S.E.2d 483 (1987).

3. Under W.Va.Code, 29-6-10(11) [1977], the denial of a union representative at a civil service employee's pretermination hearing does not violate the employee's procedural due process right under Article III, Section 10 of the West Virginia Constitution.

Grant Crandall, William D. Turner, Charleston, for Swiger.

Charlie Brown, Atty. Gen., for Civil Service Com'r.

NEELY, Justice:

On January 20, 1986, State Senators Karras and Loehr were touring the West Virginia Penitentiary at Moundsville on behalf of a Select Senate Committee investigating the New Year's Day riots. The Senators were accompanied by Warden Hedrick, Major Littell, and Sergeant LeMasters. Appellant, Ricky C. Swiger, was on duty as a Correctional Officer I and asked Sgt. LeMasters if they were the Senate Investigating Committee because Mr. Swiger wanted to discuss security problems with them. Appellant received no response after asking the question three times. Major Littell later testified that he answered Mr. Swiger, but that appellant apparently did not hear him. In any event, appellant then became frustrated, saying, "That's the fucking trouble with this place; nobody will tell nobody nothing!" As Mr. Swiger stormed off, he threw a soda can against a wall.

Senator Karras then asked Warden Hedrick who petitioner was and was told, "that was Mr. Swiger, a member of the union." Senator Karras stated that Mr. Swiger's actions constituted gross insubordination and that he should be fired immediately.

Appellant was advised by letter dated January 21, 1986, that he was being discharged for misconduct, effective February 6, 1986, and that appellant had a right to meet with Warden Hedrick by January 29, 1986 for the purpose of stating why the action was unwarranted. By letter dated January 28, 1986, Mr. Swiger requested such a meeting and asked that a Communication Workers of America Union Representative be allowed to accompany him. Warden Hedrick refused to meet with Mr Swiger in the presence of a union representative, so no meeting took place.

Mr. Swiger filed an action with the Civil Service Commission and by order dated October 7, 1986, the Commissioner concluded that although Mr. Swiger's conduct was unacceptable, it warranted less than discharge in light of the tense circumstances surrounding his case and his good service record for ten years as a state employee. The Civil Service Commission directed that Mr. Swiger be reinstated within three weeks of its October 7, 1986 order, without approximately eight months back pay or other benefits.

Petitioner appealed the Civil Service Commission's order to this Court, asserting that his constitutional and statutory rights were violated by the Department of Correction's refusal to allow a union representative to attend his pretermination meeting with Warden Hedrick. We disagree.

I

Appellant asserts that he had a statutory right to union representation at the pre-disciplinary meeting with Warden Hedrick under W.Va.Code, 29-6-10(11) [1977]. ¹ Appellant urges that a union representative's presence would allow resolution of many potential employment disputes at an early stage. W.Va.Code 29-6-10(11) [1977] provides that an employee may request to meet personally with the employer or his representative. However, the Code is silent about a right to representation and there is no evidence of legislative intent that a right to representation be implied. Because the statute does not mention representation, whether an employee can be accompanied by a representative (either an attorney or a union representative) would clearly rest within the discretion of the employer. Therefore, we see no violation of W.Va.Code, 29-6-10(11) [1977] when Warden Hedrick refused to meet with Mr. Swiger and his union representative.

II

Next, we must determine whether the procedural requirements of W.Va.Code, 29-6-10(11) [1977] are within the constitutional perimeters of the due process clause of the Fourteenth Amendment.

An essential principle of due process is that a deprivation of life, liberty, or property must "be preceded by notice and opportunity for a hearing appropriate to the nature of this case." Mullane v. Central Hanover Bank of Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 657, 94 L.Ed. 865 (1950). This principle evolved from "the root requirement" of the Due Process Clause, i.e., "that an individual be given an opportunity for a hearing before he is deprived of any significant property interest." Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) [Emphasis in original]; See, Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90 (1971). This principle requires "some kind of hearing" prior to the discharge of an employee who has a constitutionally protected property interest in his employment. Board of Regents v. Roth, 408 U.S. 564, 569-570, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 599, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570 (1972). ²

The need for some form of pretermination hearing recognized in these cases is evident from a balancing of the competing interests at stake. These are the private interest in retaining employment, the governmental interest in the expeditious removal of unsatisfactory employees, the avoidance of administrative burdens, and the risk of an erroneous termination. See, Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).

In West Virginia, we have followed the U.S. Supreme Court guidelines discussed above concerning the extent of due process protections. Using the formula from Mathews v. Eldridge, supra, we have recognized that a classified civil service employee has a sufficient interest in his continued, uninterrupted employment to warrant the application of due process procedural safeguards to protect the employee against arbitrary discharge. Article III, Section 10 of the W.Va. Constitution. Waite v. Civil Service Commission, 161 W.Va. 154, 241 S.E.2d 164 (1977).

We clarified this right in Syl. Pt 3 of Fraley v. Civil Service Commission, 177 W.Va. 729, 356 S.E.2d 483 (1987) when we held that all permanent civil service employees have a property interest arising out of the statutory entitlement to continued, uninterrupted employment. This guaranteed property interest we found required a pretermination hearing before discharge:

"The Constitutional guarantee of procedural due process requires 'some kind of hearing' prior to the discharge of an employee who has a constitutionally protected property interest in his employment."

177 W.Va. at 730, 356 S.E.2d at 484.

In North v. Board of Regents, 160 W.Va. 248, 233 S.E.2d 411 (1977) cert. denied 475 U.S. 1020, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986), we treated at some length the procedural safeguards required under Article III, Section 10 of the W.Va. Constitution. We discussed the concept of "liberty" and "property" interests triggering due process requirements when a person was adversely affected by State action. Our holding in North along with Fraley and Waite, demonstrates that in analyzing our State's constitutional due process standard, we are free to consider the applicable federal constitutional standards. Ultimately, however, we must be guided by our own principles in establishing our State standards, recognizing that so long as we do not fall short of the federal standard, our determination is final. See, Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975).

In syllabus point 2, in part, of North v. W.Va. Board of Regents, supra, we recognized that applicable standards for procedural due process, outside the criminal area, may depend upon the particular circumstances of a given case. See, also, Buskirk v. Civil Service Commission of West Virginia, 175 W.Va. 279, 332 S.E.2d 579 (1985); Clark v. West Virginia Board of Regents, 166 W.Va. 702, 279 S.E.2d 169, 175 (1981); Bone v. West Virginia Department of Corrections, 163 W.Va. 253, 255 S.E.2d 919 (1979); Major v. DeFrench, 169 W.Va. 241, 286 S.E.2d 688, 697 (1982). Under W.Va.Code, 29-6-1 [1977] et seq, the appellant in the present case was later entitled to a full administrative hearing and judicial review. The Code's pretermination hearing is not designed definitively to resolve the propriety of the discharge; it is merely designed to determine whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. See, Fraley v. Civil Service Commission, 177 W.Va. at 732, 356 S.E.2d at 486. We find no constitutional or statutory requirement that a union representative must be able to attend such a fact-finding meeting.

Recently, the United States Supreme Court reviewed dismissal of two state civil service employees in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) and held as follows:

"The essential requirements of due process are notice and an opportunity to respond. The opportunity to present reasons either in person or in writing, why proposed action should not be taken is a fundamental requirement. See, Friendly 'Some Kind of Hearing,' 123...