Waite v. Civil Service Commission

• Decision Date: 20 December 1977
• Docket Number: No. 13814,13814
• Citation: 161 W.Va. 154,241 S.E.2d 164
• Court: West Virginia Supreme Court
• Parties: Martha WAITE v. CIVIL SERVICE COMMISSION of West Virginia.

Page 164

241 S.E.2d 164

161 W.Va. 154

Martha WAITE v. CIVIL SERVICE COMMISSION of West Virginia.

No. 13814.

Supreme Court of Appeals of West Virginia.

Dec. 20, 1977.

Concurring Opinion Jan. 17, 1978.

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.

2. The "liberty interest" includes an individual's right to freely move about, live and work at his chosen vocation, without the burden of an unjustified label of infamy. A liberty interest is implicated when the State makes a charge against an individual that might seriously damage his standing and associations in his community or places a stigma or other disability on him that forecloses future employment opportunities.

3. A "property interest" includes not only the traditional notions of real and personal property, but also extends to those benefits to which an individual may be deemed to have a legitimate claim of entitlement under existing rules or understandings.

4. A State civil service classified employee has a property interest arising out of the statutory entitlement to continued uninterrupted employment.

5. The extent of due process protection affordable for a property interest requires consideration of three distinct factors: first, the private interests that will be affected by the official action; second, the risk of an erroneous deprivation of a property interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

6. Where there is an adequate procedural remedy which prevents a statute from being unconstitutionally applied, the Court will, under the doctrine of least obtrusive remedy, adopt such procedure to avoid declaring a statute unconstitutional.

7. Under our Due Process Clause, a State civil service classified employee, who is suspended for thirty days or less on charges amounting to misconduct or delinquency, is entitled, prior to suspension, to receive written notice of the reasons for suspension and an opportunity to reply either orally or in writing, unless the suspension arises in a situation where there is a continuing danger to persons or property or to the orderly conduct of the affairs of the agency, in which case an immediate suspension may be warranted; and in such case, the necessary notice and rudimentary hearing should follow as soon as practicable.

8. The State's interest in being able to deal quickly and inexpensively with routine personnel matters in order to promote efficiency and economy in administration is a legitimate State purpose and disciplinary procedures permitting a distinction between minor disciplinary functions and major ones are rationally related to this interest such that W.Va.Code, 29-6-13 (1961) does not violate the Equal Protection Clause of the West Virginia Constitution, Article III, Section 17.

E. Dennis White, Jr., and Bernard T. Nibert, II, Huntington, for appellant.

Chauncey H. Browning, Jr., Atty. Gen., George H. Mitchell, Asst. Atty. Gen., Charleston, for appellee.

MILLER, Justice:

Appellant, Martha Waite, a classified civil service employee, asks this Court to set aside a decision of the West Virginia Civil Service Commission denying her a hearing before the Commission. ¹

Appellant attacks the decision of the Commission on two grounds: (1) W.Va.Code, 29-6-13 (1961), on which the Commission relied, violates the Due Process Clause of both the United States and West Virginia Constitutions; and (2) this section also violates the Equal Protection Clauses of the United States and West Virginia Constitutions.

By letter dated November 6, 1974, appellant, a nurse at the Barboursville State Hospital, was notified that she was being suspended. ² The period of suspension was from November 13, 1974, through November 22, 1974.

She requested a hearing before the West Virginia Civil Service Commission regarding the suspension in a letter dated November 21, 1974. Proceedings were held on the request, and the Commission found that under West Virginia law appellant was not entitled to a hearing. See note 1, supra.

W.Va.Code, 29-6-13, provides, in pertinent part: ³

"Any employee in the classified service who is dismissed or demoted after completing his probationary period of service or who is suspended for more than thirty days in any one year, may, within thirty days after such dismissal, demotion or suspension, appeal to the Commission for review thereof."

Article XI, Section 3 of the Rules and Regulations of the West Virginia Civil Service System provides:

"The Appointing Authority may, upon notice confirmed in writing or by written notice, suspend any employee without pay for delinquency or misconduct, for a period not to exceed thirty calendar days in any one calendar year. The employee shall only have recourse to appeal if suspended for more than thirty days in any one year."

Article XII, Section 4-1 of the Rules and Regulations reads:

"A permanent employee who is dismissed, suspended for more than thirty days or demoted shall have the right to appeal to the Commission not later than thirty days after the effective date of the dismissal, suspension, or demotion. . . . "

I. Appellant's rights under statutory law

We first note that W.Va.Code, 29-6-13, clearly anticipates and provides for the suspension of any permanent employee prior to a hearing. Under the Rules and Regulations of the Civil Service System, no employee may be suspended for more than thirty days in any one calendar year. Any employee who is suspended must be notified in writing. The employee may be suspended without pay only for delinquency or misconduct. Finally, under both W.Va.Code, 29-6-13, and Article XII, Section 4-1 of the Rules, only if employees are suspended for more than thirty days in any one year are they entitled to a post-suspension hearing. Nothing in either the statute or the Rules and Regulations requires that an employee who is suspended for thirty days or less be given any kind of hearing. Under these provisions, such employees are entitled to nothing more than written notice of suspension.

II. Appellant's constitutional claim to due process

In North v. Board of Regents, W.Va., 233 S.E.2d 411 (1977), we treated at some length the procedural safeguards required under Article III, Section 10 of the West Virginia Constitution. We discussed the concept of "liberty" and "property" interests triggering due process requirements when affected by State action. North also demonstrated 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. ⁴

To evaluate appellant's constitutional claim we employ a two-step analysis. Cf. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Initially, we determine whether appellant's interest rises to the level of a "liberty" or "property" interest. If the answer is no, the second step becomes unnecessary because appellant has no claim warranting constitutional protection. If, however, either a liberty or property interest is at stake, then we must weigh the competing interest of the appellant and the State agency to determine what procedural due process is constitutionally required. We turn first to determine whether appellant's claim involved an interest in liberty. Thereafter, we will consider whether a property interest is involved.

A. Appellant's liberty interest claim

The concept of a 'liberty' interest is grounded in the Due Process Clause of both our State and Federal Constitutions, which prohibit the deprivation of '. . . life, liberty or property, without due process of law.' United States Constitution, Amendment V; West Virgina Constution, Article III, Section 10.

The liberty interest concept developed in Board of Regents v. Roth, supra, is the interest an individual has in being free to move about, live and work at his chosen vocation without the burden of an unjustified label of infamy. Roth, supra, 408 U.S. at 572, 92 S.Ct. at 2707, 33 L.Ed.2d at 558. A liberty interest is implicated when the state makes a "charge against him that might seriously damage his standing and associations in his community." Id. at 573, 92 S.Ct. at 2707, 33 L.Ed.2d at 558. The Roth Court stated that a charge of dishonesty or immorality would implicate an individual's liberty interests.

We follow these principles and find that an accusation or label given the individual by his employer which belittles his worth and dignity as an individual and, as a consequence, is likely to have severe repercussions outside his work world, infringes one's liberty interest. Moreover, an individual has an interest in avoiding "a stigma or other disability" that forecloses future employment opportunities. See Roth, supra, 408 U.S. at 574, 92 S.Ct. at 2707, 33 L.Ed.2d at 559. See also Codd v. Velger, 429 U.S. 624, 633, 638, at nn. 3 & 11, 97 S.Ct. 882, 887, 889 at nn. 3 & 11, 51 L.Ed.2d 92, 100, 103 at nn. 3 & 11 (1977) (Stevens, J., dissenting); Goss v. Lopez, 419 U.S. 565, 574-575, 95 S.Ct. 729, 736-737, 42 L.Ed.2d 725, 735-736 (1975).

In the present case, appellant's suspension was based on several infractions of hospital policy. We do not deem these charges reach the level of stigmatization which would foreclose future employment opportunities or seriously damage appellant's standing and associations in the community. ⁵ We,...