University of West Virginia Bd. of Trustees on Behalf of West Virginia University v. Fox

• Decision Date: 11 July 1996
• Docket Number: No. 23091,23091
• Citation: 197 W.Va. 91,475 S.E.2d 91
• Court: West Virginia Supreme Court
• 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.

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.

[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.

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.

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

In answering the question of whether a conviction, based upon a plea of no contest, is admissible in an administrative proceeding, we first note that the West Virginia Rules of Evidence are typically given their full effect in administrative proceedings. Under the State Administrative Procedures Act, West Virginia Code § 29A-5-2(a), "[t]he rules of evidence as applied in civil cases in the circuit courts of this state shall be followed...." ³ Rule 410 of the West Virginia Rules of Evidence states: "[e]xcept as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: ... (2) a plea of nolo contendere...."

Applying the rules just stated, evidence of a plea of no contest would not typically be admissible in a subsequent administrative proceeding against a party who entered that plea in a prior criminal proceeding. However, under the grievance procedure provided in W.Va.Code § 18-29-1, et seq., the Legislature has directed that "[f]ormal rules of evidence shall not be applied...." W.Va.Code § 18-29-6. While at first blush this rule may appear to permit evidence of a no contest plea to be entered in a grievance proceeding, we find that it does not. In making this determination we look to the nature and purpose of the no contest plea.

This Court has recognized that a plea of no contest " 'is a formal declaration by the accused that he will not contest the charge against him.... [It] has no effect beyond the particular case. It is an implied confession of guilt only, and cannot be used against the accused as an admission in any civil suit for the same act.' " State ex rel. Clark v. Adams, 144 W.Va. 771, 778-779, 111 S.E.2d 336, 340-341 (1959) (quoting 22 C.J.S. Criminal Law, § 425), cert. denied, 363 U.S. 807, 80 S.Ct. 1242, 4 L.Ed.2d 1149 (1960).

Many reasons have been given to explain why an individual may want to enter a plea of no contest rather than a plea of guilty or not guilty:

A plea of nolo contendere is used by the accused in criminal cases to avoid exacting an admission which could be used as an admission in other potential litigation, to avoid trial with its attendant expense and adverse publicity in the event of a conviction, or to protect in certain cases the respectable citizen who may sometimes become technically guilty of a violation of law, but who should not be subjected to certain penalties intended to apply only to those who wilfully or maliciously violate the law.

21 Am.Jur.2d, Criminal Law, § 492 (footnotes omitted). Other courts have also recognized that:

[W]hen [a] conviction is based on a nolo contendere plea, its reliability as an indicator of actual guilt is substantially reduced, both because of the defendant's reservations about admitting guilt for all purposes and because the willingness of the district attorney to agree to and the court to approve the plea tends to indicate weakness in the available proof of guilt.

County of Los Angeles v. Civil Service Commission, 39 Cal.App.4th 620, 46 Cal.Rptr.2d 256, 262 (1995) (quoting Cartwright v. Board of Chiropractic Examiners, 16 Cal.3d 762, 129 Cal.Rptr. 462, 548 P.2d 1134 (1976)). These reasons clearly provide a basis for concluding that the plea is not a reliable indication of guilt in subsequent...