Bone v. West Virginia Department of Corrections , 163 W. Va. 253 ( 1979 )

McGraw, Justice,

dissenting:

I cannot join in the Court’s opinion; I respectfully dissent.

The Court today condones an obvious violation of the procedural protections afforded to all State employees in the classified service by this State’s Civil Service law, and upholds the summary discharges of a State employee who has been employed as a correctional officer at the West Virginia Penitentiary for over two years.

W. Va. Code § 29-6-10(11) [1977] reads in material part:

For discharge or reduction in rank or grade only for cause of employees in the classified service. Discharge or reduction of these employees shall take place only after the person to be discharged or reduced as been presented with the reasons for such discharge or reduction stated in writing, and has been allowed a reasonable time to reply thereto in writing, or upon request to appear personally and reply to the appointing authority or his deputy. The statement of reasons and the reply shall be filed as a public record with the director.

By virtue of this provision, an employee in classified service must be supplied written notice of the reasons for his discharge before he can be lawfully dismissed, and also he is entitled to a reasonable period of time to reply to the charges, or, upon request, to appear personally and reply to the appointing authority or his deputy. This provision unequivocally precludes summary discharges such as occurred here and should not have been tolerated by the Civil Service Commission or by this Court.

Everyone agrees that the statute was not complied with in this case but the majority, invoking the doctrine of substantial compliance, refuses to enforce the law and thereby seriously weakens the protection afforded State employees by the Civil Service law.

Moreover, the majority has tacitly approved without analysis a regulation of the Civil Service Commission which conflicts with the mandates of the statute. Article 11, Section 2, of the Civil Service Commission regulation provides.

The Appointing Authority, 15 days after notice in writing to a permanent employee stating specific reasons therefor, may dismiss any employee who is negligent or inefficient in his duties, or unfit to perform his duties, who is found to be guilty of gross misconduct, or who is convicted of any crime involving moral turpitude. Fifteen days notice shall not be required for employees in certain classes where the Commission holds by formal action that the public interests are best served by withholding such notice, and shall be at the discretion of the Appointing Authority for employees in any class when the cause of dismissal is gross misconduct. (Emphasis supplied.)

The Commission, in its memorandum opinion, being sensitive to this very legal problem, stated that “[wjhile we sanction the dismissal of appellant in this particular situation, we would encourage the department (of corrections) in any future similar situations to effect an immediate suspension followed by a discharge with is normal procedural requirements.”

In my view, allowing summary discharges of classified service employees in contravention of W. Va. Code § 29-6-10(11) [1977], works to defeat the general purpose of the Civil Service system “to attract to the service of this State personnel of the highest ability and integrity by the establishment of a system of personnel administration based on merit principles and scientific methods governing the ... discipline ... of its civil employees. ...” See, W. Va. Code § 29-6-1 [1977]. Furthermore, the majority’s opinion may encourage other government agencies or appointing authorities and the Civil Service Commission itself to ignore the clear dictates of the Civil Service law to the substantial detriment of West Virginia’s government employees. Government employees deserve better.

As to the merits of the case, it is worth noting that the Department of Corrections has developed written “Standard Operating Procedures” to be followed by correctional officers performing hospital security duty. These rules, however, do not address the specific situation which faced the appellant nor, despite his substantial experience in hospital security duty, had he never been required to guard a prisoner in the same room with a “civilian.” His concern for security was no doubt genuine and legitimate.

I, therefore, believe the record does not support a finding of gross misconduct such as would warrant termination of appellant’s employment.

Accordingly, I would reverse the ruling of the Civil Service Commission and hold appellant’s discharge unlawful for failure to comply with the notice requirements of W. Va. Code § 29-6-10(11). See, Synder v. Civil Service Commission _ W. Va. _, 238 S.E.2d 892 (1977).