University of West Virginia Bd. of Trustees on Behalf of West Virginia University v. Fox, No. 23091

CourtSupreme Court of West Virginia
Writing for the CourtALBRIGHT; CLECKLEY
Citation197 W.Va. 91,475 S.E.2d 91
Parties, 112 Ed. Law Rep. 498 UNIVERSITY OF WEST VIRGINIA BOARD OF TRUSTEES on Behalf of WEST VIRGINIA UNIVERSITY, Petitioner Below, Appellant, v. Gary D. FOX, Respondent Below, Appellee.
Docket NumberNo. 23091
Decision Date11 July 1996

Page 91

475 S.E.2d 91
197 W.Va. 91, 112 Ed. Law Rep. 498
UNIVERSITY OF WEST VIRGINIA BOARD OF TRUSTEES on Behalf of
WEST VIRGINIA UNIVERSITY, Petitioner Below, Appellant,
v.
Gary D. FOX, Respondent Below, Appellee.
No. 23091.
Supreme Court of Appeals of West Virginia.
Submitted April 24, 1996.
Decided July 11, 1996.

Page 92

[197 W.Va. 92] Syllabus by the Court

1. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

2. "An interpretation of the West Virginia Rules of Evidence presents a question of law subject to de novo review." Syllabus point 1, Gentry v. Mangum 195 W.Va. 512, 466 S.E.2d 171 (1995).

3. Although formal rules of evidence do not apply to grievance procedures under W.Va.Code § 18-29-6, we hold that nolo contendere pleas are unreliable as evidence of particular acts in a subsequent grievance or other administrative proceeding.

4. When a court or administrative body is asked to recognize a conviction as an admission of guilt of particular acts, the court must look behind the conviction to determine whether it was based upon a trial on the merits or upon a plea of no contest. Where the conviction was based upon a plea of no contest, it may not be considered an admission of guilt of particular acts.

Page 93

[197 W.Va. 93] Brentz H. Thompson, Senior Assistant Attorney General, Charleston, for Appellant.

Peter D. Dinardi, Dinardi, Heironimus, Bentley & Orteza, Morgantown, for Appellee.

ALBRIGHT, Justice:

Appellant, West Virginia University Board of Trustees, appeals an order of the Circuit Court of Kanawha County affirming the reinstatement of a West Virginia University employee who was fired after he was seen in the women's shower room at the West Virginia University natatorium. Appellant contends that the circuit court erred by failing to find that the employee's conviction of criminal trespass, following a no contest plea, could be considered an admission to satisfy the Board's burden of proving that the employee's entry into the locker room was intentional. On the contrary, we find that the conviction was inadmissible evidence. Accordingly, we affirm.

On December 30, 1992, while appellee, Mr. Fox, was employed by West Virginia University (WVU) as an Inventory Clerk B, he was seen in the women's locker room of the WVU natatorium by two female witnesses. Mr. Fox admitted that he was in the shower room but claimed that the lighting was poor and the door either was not marked or was covered by papers, and thus he wandered into the room by mistake while looking for a men's room.

Mr. Fox was subsequently charged with criminal trespass, in violation of W.Va.Code § 61-3B-3, and was arraigned in the Magistrate Court of Monongalia County. He pled no contest and was fined $100 plus court costs. 1 Thereafter, Mr. Fox was banned from entering all WVU buildings, with the exception of the building where he was primarily assigned to work, by the WVU Department of Public Safety (DPS). Mr. Fox's employment with WVU was then terminated for a clear, flagrant violation of University policy and because the DPS ban significantly limited his ability to efficiently and effectively execute his full range of duties and responsibilities.

Mr. Fox filed a grievance challenging his dismissal, which was denied at levels one and two of the grievance procedure. After the West Virginia Board of Trustees declined to review the issue at level three, Mr. Fox appealed to level four. Hearings were conducted at levels two and four of the grievance procedure. At both hearings, appellant presented evidence of the police reports filed by the two female witnesses and evidence that Mr. Fox pled no contest to the criminal trespass charges in magistrate court in order to show that Mr. Fox had committed a violation that warranted his dismissal. No other evidence regarding the alleged offense was presented.

At level four, the West Virginia Education and State Employees Grievance Board (Grievance Board), through its Senior Administrative Law Judge (ALJ), reversed the termination and ordered WVU to remit back pay and to remove the dismissal from Mr. Fox's personnel file. In making her decision, the ALJ found that Mr. Fox's statement matched that of the two female witnesses who were in the shower room. 2 The ALJ further commented that her decision was based upon the facts that Mr. Fox did not deny that he entered the room, that there was no evidence connecting him to past entries, that the two female witnesses did not testify at any hearing, that WVU relied on Mr. Fox's plea of no contest as its basis for dismissal, and that the Department of Public Safety acted unreasonably in banning Mr. Fox from all buildings.

Page 94

[197 W.Va. 94] The University of West Virginia Board of Trustees, on behalf of WVU, appealed the Grievance Board's decision to the Circuit Court of Kanawha County. By final order dated November 4, 1994, the circuit court upheld the Grievance Board's decision. It is from this final order that appellant now appeals.

STANDARD OF REVIEW

Appellant argues that the circuit court erred by affirming: (1) the ALJ's factual conclusion that appellee did not knowingly and without authorization enter the women's locker room, in spite of the fact that appellee had been convicted, based upon his plea of no contest, of trespassing; (2) the ALJ's legal conclusion that Mr. Fox's plea could not be considered an admission to satisfy WVU's burden of proving that appellee trespassed in the women's locker room; and (3) the ALJ's holding that WVU failed to prove that appellee acted in flagrant or willful violation of rules, regulations, standards of accepted behavior or performance, or in a clear violation of WVU policy. We believe these issues are properly resolved by answering one question: whether a conviction, based upon a plea of no contest, is admissible in an administrative proceeding. Because this raises both a question of law, and an interpretation of the West Virginia Rules of Evidence, we will apply a de novo standard of review. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). "An interpretation of the West Virginia Rules of Evidence presents a question of law subject to de novo review." Syl. pt. 1, Gentry v. Mangum 195 W.Va. 512, 466 S.E.2d 171 (1995).

DISCUSSION

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  • William N. v. Kimberly H.,
    • United States
    • New York Family Court
    • May 31, 2013
    ...881 So.2d 673, 676–77 [Fla. Dist. Ct.App.2004];D.A. v. State, 63 P.3d 607, 618 n. 11 [Utah 2002];Univ. Of W. Va. Bd. of Trustees v. Fox, 197 W.Va. 91, 475 S.E.2d 91, 96 [1996] ); Graham, supra, 325 F.2d at 928;Garron, supra, 528 So.2d at 360;Powers, supra, 855 F.Supp. at 205;Powers v. Bayli......
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    • June 12, 1998
    ...S.E.2d 415 (1995)." Syl. pt. 1, University of West Virginia Board of Trustees on Behalf of 503 S.E.2d 548 West Virginia University v. Fox, 197 W.Va. 91, 475 S.E.2d 91 Less certain, however, is the precise standard of review of a circuit court's denial of a party's motion to dismiss. General......
  • Albright v. White, No. 24111.
    • United States
    • Supreme Court of West Virginia
    • June 22, 1998
    ...138, 459 S.E.2d 415 (1995).' Syllabus point 1, University of West Virginia Board of Trustees ex rel. West Virginia University v. Fox, 197 W.Va. 91, 475 S.E.2d 91 (1996)." Syl. pt. 3, Ewing v. Board of Educ. of County of Summers, 202 W.Va. 228, 503 S.E.2d 541. Having set forth the applicable......
  • Conley v. Workers' Compensation Div., No. 23677
    • United States
    • Supreme Court of West Virginia
    • February 20, 1997
    ...W.Va. 138, 459 S.E.2d 415 (1995); Syl. pt. 1, University of West Virginia Bd. of Trustees on Behalf of West Virginia University v. Fox, 197 W.Va. 91, 475 S.E.2d 91 RETROACTIVE APPLICATION OF W.VA. CODE § 23-4-1f Appellant argues that the Appeal Board committed error in applying W.Va.Code Pa......
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20 cases
  • William N. v. Kimberly H.,
    • United States
    • New York Family Court
    • May 31, 2013
    ...881 So.2d 673, 676–77 [Fla. Dist. Ct.App.2004];D.A. v. State, 63 P.3d 607, 618 n. 11 [Utah 2002];Univ. Of W. Va. Bd. of Trustees v. Fox, 197 W.Va. 91, 475 S.E.2d 91, 96 [1996] ); Graham, supra, 325 F.2d at 928;Garron, supra, 528 So.2d at 360;Powers, supra, 855 F.Supp. at 205;Powers v. Bayli......
  • Ewing v. Board of Educ., No. 24902.
    • United States
    • Supreme Court of West Virginia
    • June 12, 1998
    ...S.E.2d 415 (1995)." Syl. pt. 1, University of West Virginia Board of Trustees on Behalf of 503 S.E.2d 548 West Virginia University v. Fox, 197 W.Va. 91, 475 S.E.2d 91 Less certain, however, is the precise standard of review of a circuit court's denial of a party's motion to dismiss. General......
  • Albright v. White, No. 24111.
    • United States
    • Supreme Court of West Virginia
    • June 22, 1998
    ...138, 459 S.E.2d 415 (1995).' Syllabus point 1, University of West Virginia Board of Trustees ex rel. West Virginia University v. Fox, 197 W.Va. 91, 475 S.E.2d 91 (1996)." Syl. pt. 3, Ewing v. Board of Educ. of County of Summers, 202 W.Va. 228, 503 S.E.2d 541. Having set forth the applicable......
  • Conley v. Workers' Compensation Div., No. 23677
    • United States
    • Supreme Court of West Virginia
    • February 20, 1997
    ...W.Va. 138, 459 S.E.2d 415 (1995); Syl. pt. 1, University of West Virginia Bd. of Trustees on Behalf of West Virginia University v. Fox, 197 W.Va. 91, 475 S.E.2d 91 RETROACTIVE APPLICATION OF W.VA. CODE § 23-4-1f Appellant argues that the Appeal Board committed error in applying W.Va.Code Pa......
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