Joseph C. Thorton v. William M. Ward

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2019 Term
FILED
_____________
June 6, 2019
released at 3:00 p.m.
No. 18-0145 EDYTHE NASH GAISER, CLERK
_____________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
JOSEPH C. THORTON, AS EXECUTIVE DIRECTOR,
GOVERNOR’S COMMITTEE ON CRIME, DELINQUENCY, AND
CORRECTION,
Respondent Below, Petitioner
V.
WILLIAM M. WARD,
Petitioner Below, Respondent
________________________________________________
Appeal from the Circuit Court of Ohio County
The Honorable Ronald E. Wilson, Judge
Civil Action No. 16-C-368
REVERSED AND REMANDED
________________________________________________
Submitted: March 6, 2019
Filed: June 6, 2019
Patrick Morrisey Joseph J. John
Attorney General John & Werner Law Offices, PLLC
Thomas T. Lampman Wheeling, West Virginia
Assistant Attorney General Attorney for the Respondent
Charleston, West Virginia
Attorneys for the Petitioner
JUSTICE JENKINS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “‘On appeal of an administrative order from a circuit court, this Court
is bound by the statutory standards contained in W. Va. Code § 29A-5-4(a) and reviews
questions of law presented de novo; findings of fact by the administrative officer are
accorded deference unless the reviewing court believes the findings to be clearly wrong.’
Syl. Pt. 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).” Syllabus point 1,
Straub v. Reed, 239 W. Va. 844, 806 S.E.2d 768 (2017).
2. “In cases where the circuit court has amended the result before the
administrative agency, this Court reviews the final order of the circuit court and the
ultimate disposition by it of an administrative law case under an abuse of discretion
standard and reviews questions of law de novo.” Syllabus point 2, Muscatell v. Cline, 196
W. Va. 588, 474 S.E.2d 518 (1996).
i
Jenkins, Justice:
Petitioner Joseph C. Thorton,1 Executive Director of the Governor’s
Committee on Crime, Delinquency, and Corrections2 (the “Executive Director”), herein
appeals from the January 23, 2018 order of the Circuit Court of Ohio County reversing the
Executive Director’s order decertifying Respondent William Ward (“Mr. Ward”) as a law
enforcement officer in the State of West Virginia. On appeal, the Executive Director raises
two issues: (1) whether the circuit court erred by applying the incorrect statutes to define
the scope of the Law Enforcement Professional Standards Subcommittee’s 3
(“Subcommittee”) authority and (2) whether the circuit court erred by incorrectly applying
the due process protections in employment disputes to a proceeding governing law
enforcement professional certification. Upon careful review of the briefs, the appendix
1
Since the filing of the appeal in this case, the executive director of the
Governor’s Committee on Crime, Delinquency and Correction has changed from W.
Richard Staton to Joseph C. Thorton. By Order entered March 19, 2019, the Court has
made the necessary substitution of parties pursuant to Rule 41(c) of the West Virginia
Rules of Appellate Procedure.
2
The Governor’s Committee on Crime, Delinquency, and Correction (“the
Governor’s Committee”) was “established as a state planning agency pursuant to § 15-9-1
of [the West Virginia Code.]” W. Va. Code § 30-29-1(5) (LexisNexis 2018).
3
The Subcommittee was continued pursuant to West Virginia Code § 30-29-
2. W. Va. Code § 30-29-2 (LexisNexis 2018). Essentially, the Subcommittee has the
“following responsibilities: (1) Review and administer programs for qualification, training
and certification of law-enforcement officers in the state; and (2) Consider applications by
law-enforcement officers whose certification is deemed inactive as a result of his or her
separation from employment with a law-enforcement agency.” Id. The West Virginia
Code further provides that the Subcommittee shall “[c]ertify or decertify or reactivate law-
enforcement officers[.]” W. Va. Code § 30-29-3(a)(11) (LexisNexis 2018).
1
record, the arguments of the parties, and the applicable legal authority, we find that the
circuit court erred by applying the incorrect statutory provisions to this matter and the
proceedings below. Furthermore, because the circuit court applied the incorrect statutory
provisions, its conclusion that the civil service hearing proceedings must precede
decertification proceedings is also in error. Therefore, we reverse the order of the circuit
court and remand the case for further proceedings consistent with this opinion.
I.
FACTUAL AND PROCEDURAL HISTORY
In March 2015, Mr. Ward was a certified law-enforcement officer employed
by the Wheeling Police Department with the rank of corporal. 4 On March 25, 2015, Mr.
Ward and his then-girlfriend, Paula Brown (“Ms. Brown”),5 were involved in an incident
inside Mr. Ward’s Wheeling residence. On this day, an argument and physical altercation
occurred seemingly over a series of text messages regarding Mr. Ward’s contact with his
former wife. Mr. Ward asked that Ms. Brown leave the premises and take her possessions
and children with her.6 According to the Criminal Complaint, Ms. Brown then “went
4
At the time of the incident, Mr. Ward had been a certified law-enforcement
officer with the City of Wheeling Police Department for eleven years.
5
The record before us indicates that Ms. Brown and her children were living
with Mr. Ward at his home located on Wheeling Island.
6
The record indicates that the children may have also been present during
this incident.
2
downstairs and took Mr. Ward’s duty weapon, ID, and keys” before attempting to leave
the residence with those items. The Criminal Complaint further alleges that Mr. Ward “got
the weapon off of [Ms. Brown] and [he] went to call 911”; that he set his retrieved duty
weapon down; that he recalled that Ms. Brown still had his ID and keys; and that he “ran
down the stairs, caught [Ms. Brown] at the garage door and the force of their body weight
broke the garage window.” The Criminal Complaint indicates that Mr. Ward then “walked
back into the kitchen where he noticed his duty weapon was missing again.” At this point,
Ms. Brown left the residence. It was later determined that Ms. Brown had “left the weapon
at the residence and she had hid it in the garage above the light.” On that same date, both
Mr. Ward and Ms. Brown sought domestic violence protective orders, but those petitions
were withdrawn or dismissed at the request of the respective parties.
As a result of the incident, the Ohio County Sheriff’s Department
investigated and caused the filing of two criminal charges against Mr. Ward: (1)
brandishing a weapon, in violation of West Virginia Code § 61-7-11 and (2) domestic
battery, in violation of West Virginia Code § 61-2-28(a). Initially, Mr. Ward pleaded not
guilty to the charges and was released on bond. One of the terms of Mr. Ward’s bond was
that he was prohibited from possessing a firearm. Additionally, the Wheeling Police
Department placed Mr. Ward on administrative leave with pay from his employment
subsequent to the arrest and pending an internal investigation. Following the conclusion
of the internal investigation, in June 2015, the Chief of the Wheeling City Police
3
Department, Shawn Schwertfeger (“Chief Schwertfeger”), recommended to the City of
Wheeling that Mr. Ward be terminated.
In February 2016, on the eve of trial, the special prosecutor, Ms. Brown, Mr.
Ward, and the City of Wheeling reached essentially a pretrial diversion agreement on the
pending criminal charges. Specifically, it was agreed that the brandishing charge would
be dismissed with prejudice and the domestic battery charge would be resolved with Mr.
Ward entering a provisional no contest plea. Additionally, the plea agreement continued a
term of Mr. Ward’s bond, whereby Mr. Ward remained unable to possess a firearm until
October 2016.7 The Agreement also contained provisions that Mr. Ward would retain his
employment as a police officer and would return to full time employment as a police officer
over the course of the Agreement if the terms thereof were met. However “if Mr. Ward
was found to have violated any term of the agreement he would be automatically found
guilty of the underlying charge and be subject to a six (6) month jail sentence.” The
magistrate court approved that plea agreement by order entered April 25, 2016.
7
The terms of the Provisional Plea Agreement included, but were not limited
to the following:
a. Mr. Ward would enter a plea of no contest to the offense of Domestic Battery and
agreed that if the terms of the Agreement were violated he would face a term of up to 6
months in jail, however, if the terms were complied with then the plea would not be entered
and the charge of Domestic Battery would be dismissed;
b. The court would defer consideration of the no contest plea for a period of two years
to allow the terms to be met; and
c. The State would dismiss the charge of brandishing with prejudice.
4
While Mr. Ward’s criminal case was pending, the Subcommittee learned of
the incident and charges. As part of the end-of-year compliance check of all law
enforcement officers’ ongoing in-service training and firearms qualification requirements,
Mr. Ward was flagged as not having kept up with the mandatory firearm qualifications.
On September 10, 2015, the Subcommittee initiated communications with the Wheeling
Police Department (“the Department”), informing them that the Subcommittee had flagged
Mr. Ward regarding his firearms qualifications for the 2015 training year. When the
Subcommittee inquired of the Department, the Department informed the Subcommittee
that Mr. Ward was excused from that requirement due to him being on extended
administrative leave with pay. The Department further informed the Subcommittee that
Mr. Ward was on administrative leave because of a domestic violence related arrest. The
next communication between the Subcommittee and the Department was again initiated by
the Subcommittee. On October 1, 2015, the Subcommittee sent an email to the Department
to “follow up on the charges against William Ward.” The email further inquired as to
whether the incident was “wrapped up or it is all still pending” and whether Mr. Ward was
“currently on leave or has he separated from the department.” Chief Schwertfeger
responded the same day answering all the questions from the Subcommittee: he indicated
that the charges were still pending; the City had not yet acted upon his recommendation of
termination; and Mr. Ward remained on administrative leave with pay.
Following a February 1, 2016 news report describing Mr. Ward’s no-contest
plea to the domestic battery charge, the Subcommittee informed Mr. Ward that his law
5
enforcement officer certification would be reviewed. More specifically, the Subcommittee
sent a notification letter to Mr. Ward dated March 8, 2016, stating that “[a]s a result of the
provisional plea which you have entered in Ohio County Magistrate Court as part of Case
No. 15-M-546 a review of the status of your certification as a law enforcement officer in
West Virginia has been set.”8
As a part of the Subcommittee review proceeding, the Subcommittee
provided an “Overview of Appearance Before the LEPS Subcommittee,” which included
procedural information about the proceeding.9 On April 28, 2016, Mr. Ward, with counsel,
appeared before the Subcommittee. The Subcommittee heard testimony from four
witnesses and considered sixty-seven exhibits.10 Mr. Ward submitted two exhibits and
gave his account of events. Mr. Ward’s attorneys also “spoke with members [of the
Subcommittee] concerning [Mr. Ward’s] actions in the matter being reviewed and the
disposition of the charges against him.” During this proceeding, it appears the witnesses
8
We note that an actual copy of the March 8, 2016 letter is not included in
the Joint Appendix Record submitted by the parties. Therefore, this language comes from
Mr. Ward’s underlying Petition For Review/Appeal filed with the Circuit Court of Ohio
County.
9
As the Executive Director noted in his November 10, 2016 decision, this
“Overview” is an ill-prepared document and the Subcommittee should rewrite the
document to more accurately indicate the nature of the proceeding. Additionally, we agree
with the Executive Director that the Subcommittee “should either follow these procedures
or amend them to reflect the actual practice.”
10
The Subcommittee also provided these sixty-seven exhibits via email to
Mr. Ward prior to the April 28, 2016 meeting.
6
were not sworn and numerous witnesses were questioned by the Subcommittee while they
were in the room together, rather than one at a time. The witnesses also were not subject
to cross-examination, and there was no record made of the proceeding.
After taking the evidence, the Subcommittee unanimously concluded that
Mr. Ward was in violation of several law-enforcement professional standards.11 Based on
those findings, on April 29, 2016, the Subcommittee issued an immediate stop work order
and decertified Mr. Ward as a law enforcement officer. On May 26, 2016, the
Subcommittee memorialized its decision in a written Position Statement (“Position
Statement”). As a result, Mr. Ward was forbidden from taking or holding any sworn law
enforcement position in West Virginia. The Subcommittee notified Mr. Ward that he could
contest its decision pursuant to West Virginia Code of State Regulations § 149-1-1. On
August 1, 2016, the City of Wheeling terminated Mr. Ward’s employment.12
11
These standards included the following: (1) having admitted the
commission of or been convicted of a felony or any crime involving dishonesty, unlawful
sexual conduct, physical violence, or driving under the influence of alcohol or drugs, or
having been placed in or participated in any pretrial diversion or equivalent program for
the same; (2) an inability to lawfully carry a firearm under state and/or federal statute; and
(3) any conduct or a pattern of conduct unbecoming to a law enforcement officer or law
enforcement official or activities that would tend to disrupt, diminish, or otherwise
jeopardize public trust and fidelity in law enforcement.
12
Notably, the termination letter from the City of Wheeling states that there
were two reasons for Mr. Ward’s termination: 1) the bond restriction imposed upon Mr.
Ward which prohibited him from possessing a firearm had not been lifted and 2) his law
enforcement certification had been revoked. As such, the City of Wheeling noted that Mr.
Ward was unable to fulfill his responsibility under the terms of Paragraph 9 of the
Provisional Plea Agreement and Agreed Order, which provided that after “six (6) months
form the date of this Agreement, the bond restriction currently imposed on Mr. Ward that
7
Mr. Ward then timely filed an appeal. Represented by counsel, Mr. Ward
appeared before the Governor’s Committee’s Hearing Examiner13 on August 10, 2016, for
a de novo review of his case. Mr. Ward had the opportunity to have an evidentiary hearing
on the record, to be represented by counsel, to call and cross-examine witnesses, and to
make arguments. During this review hearing, Mr. Ward did, in fact, advance several
procedural and jurisdictional challenges, introduce an additional exhibit, and extensively
cross-examine the Subcommittee’s witnesses.14 On November 10, 2016, the Executive
Director issued his Findings of Fact and Conclusions of Law and Final Ruling on
Administrative Appeal (“Executive Director’s Written Decision”).15 Based on what he
contends was an independent review of the hearing transcript and the record, the Executive
Director ultimately agreed with the conclusions of the Subcommittee, adding that Mr.
prohibits him from possessing a firearm shall be lifted, and he shall be returned to full-time
duty[.]”
13
The hearing examiner was a designee of the Executive Director.
14
The Subcommittee had five witnesses: Nicole Seifert, Corporal of the
Ohio County Sheriff’s Office; William Nolan, Sergeant of the Wheeling Police
Department; Chief Schwertfeger; Thomas McComas, Sheriff of the Cabell County
Sheriff’s Department; and Eric Michael Gordon, Assistant Prosecutor of Marshall County.
Mr. Ward called only Charles Sadler, Manager of the Law Enforcement Professional
Standards Program during this review hearing.
15
The Executive Director noted that after the review hearing, the “Hearing
Examiner issued a nonbinding recommended decision to [him] in [his] capacity as
Executive Director of the Governor’s Committee on Crime, Delinquency and Correction.”
The Executive Director further made note that he reviewed all of the findings and
recommendations of the Hearing Examiner and that “[s]ome of the findings are
incorporated into [his Decision]” and “[s]ome findings are modified or rejected.”
8
Ward’s failure to disclose his inability to lawfully carry a firearm constituted an additional
basis for his decertification.
Mr. Ward timely appealed the Executive Director’s Written Decision to the
Circuit Court of Ohio County asserting several errors in the administrative hearing process.
In its January 24, 2018 memorandum order reversing the Executive Director’s Written
Decision (“Final Order”), the circuit court found that “the statutory sanctions possessed by
the . . . Subcommittee can not [sic] be applied to a city police officer if those sanctions
would interfere with the officer’s unequivocal right to exercise the due process rights
established by West Virginia Code [§] 8-14-20. Those sanctions would only apply – if any
remained – after those due process rights had been complied with [sic].” The circuit court
further held that Mr. Ward “was subject to the civil service provisions of Article 14 of
Chapter 8, section 20, and he could only be removed, discharged, suspended or reduced in
rank or pay for just cause and he could not [be] removed, discharged, suspended or reduced
in pay ‘except as provided by the civil service provisions of this article.’”
Accordingly, the circuit court held that Mr. Ward had a right to be furnished
with a written statement of the reasons for the action taken against him and then given an
opportunity to file a written answer furnished to the Policeman Civil Service Commission.
Following such answer, he was entitled to a public hearing within a period of ten days from
the filing of the charges in writing or his written answer. The circuit court found that the
burden of proof at that hearing would be upon the City of Wheeling to show just cause for
9
its actions. The circuit court determined that Mr. Ward was not provided with his rights
under West Virginia law and that “[n]one of the proceeding that took place before Hearing
Examiner Earl W. Maxwell is relevant to this decision. The . . . Subcommittee had no right
to revoke the law enforcement certification of [Mr. Ward], a police officer with the city of
Wheeling Police Department.” Based on these findings, the circuit court reversed the order
decertifying Mr. Ward and granted Mr. Ward’s appeal. The Executive Director appeals
from this Final Order.
II.
STANDARD OF REVIEW
With respect to the applicable standard of review, this Court has held that:
“[o]n appeal of an administrative order from a circuit
court, this Court is bound by the statutory standards contained
in W. Va. Code § 29A-5-4(a) and reviews questions of law
presented de novo; findings of fact by the administrative
officer are accorded deference unless the reviewing court
believes the findings to be clearly wrong.” Syl. Pt. 1, Muscatell
v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).
Syl. pt. 1, Straub v. Reed, 239 W. Va. 844, 806 S.E.2d 768 (2017). Furthermore, “[in]
cases where the circuit court has amended the result before the administrative agency this
Court reviews the final order of the circuit court and the ultimate disposition by it of an
administrative law case under an abuse of discretion standard and reviews questions of
law de novo.” Syl. pt. 2, Muscatell, 196 W. Va. 588, 474 S.E.2d 518. With these standards
in mind, we review the parties’ arguments.
10
III.
DISCUSSION
A. The circuit court applied the incorrect statutes to define the scope of
the Law Enforcement Professional Standards Subcommittee’s authority to decertify law
enforcement officers
In his first assignment of error, the Executive Director contends that the
circuit court misread the applicable statutes and ignored the statutory basis for the
Subcommittee’s authority to decertify Mr. Ward.16 We agree. Specifically, the Final Order
fails to analyze the applicable statutes that govern the Subcommittee in regulating the
profession of law enforcement in West Virginia. As the Executive Director aptly notes,
the Final Order “contains incorrect statutory citations and summaries, and effectively
removes the governing code sections from consideration.”
16
As a preliminary matter, Mr. Ward asserts that the Executive Director lacks
standing to pursue this appeal. We have previously held that, “[t]o entitle any person to
obtain a writ of error or appeal from a judgment, he must be both a party to the case and be
aggrieved by the judgment.” Syl. pt. 1, Williamson v. Hays, 25 W. Va. 609, 609 (1885).
See also Doe v. Pub. Citizen, 749 F.3d 246, 257 (4th Cir. 2014) (internal citations omitted)
(“As a general rule, only named parties to the case in the district court and those permitted
to intervene may appeal an adverse order or judgment. Indeed, it is typically only parties
who are bound by a judgment and sufficiently aggrieved by it who possess constitutional
and prudential standing to seek appellate review of the district court’s decision.”). In the
present matter, Mr. Ward’s petition and the circuit court’s order named the Executive
Director as a respondent and the circuit court’s order specifically reversed “the Order of
the Director decertifying [Mr. Ward.]” Consequently, we find that the Executive Director
has standing to appeal the circuit court’s order reversing the Executive Director’s Written
Decision decertifying Mr. Ward.
11
In particular, in the circuit court’s five-page order, it analyzes a subsection
of the West Virginia Code—§ 30-29-3(a)(5)—rather than the applicable section of the
West Virginia Code—§ 30-29-5. Additionally it misreads West Virginia Code § 30-29-
3(a)(11). This erroneous application is a substantial and substantive flaw in the Final Order
because these statutory provisions discuss very different issues.
First, the circuit court reviewed and relied upon its interpretation of West
Virginia Code § 30-29-3(a)(5) in reversing the Executive Director’s Written Decision.
West Virginia Code § 30-29-3(a)(5) provides only that the Subcommittee shall “[m]aintain
a list of approved law-enforcement instructors[.]” This provision has absolutely no bearing
on the issues raised below and was neither cited to nor relied upon by the Executive
Director in his Written Decision.17 However, the Executive Director did cite to and rely
on West Virginia Code § 30-29-5 in support of his Written Decision. West Virginia Code
§ 30-29-5 (LexisNexis 2018), which is the proper section for analysis, provides the
certification requirements and gives the authority to the Subcommittee to decertify a law
enforcement officer. In particular, West Virginia Code § 30-29-5(h) provides that “[t]he
[S]ubcommittee, or its designee, may decertify or reactivate a law-enforcement officer
pursuant to the procedure contained in this article and legislative rules promulgated by the
[S]ubcommittee.” West Virginia Code § 30-29-5(i) further provides the statutory
17
In its Final Order, the circuit court even commented that this section “adds
nothing [to the analysis] because it simply requires that a list be maintained on approved
law-enforcement officers.”
12
procedure for “[a]ny person aggrieved by a decision of the [S]ubcomittee . . . [to] contest
the decision[.]” Accordingly, it is clear that the circuit court relied on the wrong statutory
provision in arriving at its decision in this matter.
Second, the circuit court discussed and relied upon its interpretation of West
Virginia Code § 30-29-3(a)(11). This provision provides that the Subcommittee has the
authority to certify or decertify a law enforcement officer. However, the circuit court stated
in its order that this provision was ambiguous because “the [S]ubcommittee is charged with
certifying or decertifying or reactivating law enforcement officers ‘as provided in’ section
3(a)(11) of article 29 (the same section) . . . .” This is an incorrect statement. West Virginia
Code § 30-29-3(a)(11) actually provides that the Subcommittee may “[c]ertify or decertify
or reactivate law enforcement officers, as provided in sections five [§ 30-29-5] and eleven
[§ 30-29-11].” W. Va. Code § 30-29-3(a)(11) (emphasis added). As such, the circuit court
erred by finding West Virginia Code § 30-29-3(a)(11) ambiguous because Section 11 of
Article 29 is not the “same section,” but rather refers to § 30-29-11 which is titled “Certified
law-enforcement officers who are separated from their employment.” This was critical
because it demonstrated that the circuit court did not apply or consider any statutory
provisions that guide the decertification process beyond the foundational provision of West
Virginia Code § 30-29-3(a)(11), such as West Virginia Code § 30-29-5.
The circuit court’s misapplication of the applicable statutes ignores the
statutory basis for the Subcommittee’s authority to certify or, as in the instant matter,
13
decertify a law-enforcement officer. This distinction is a crucial issue because the statutory
provisions and related regulations ignored by the circuit court lay out the foundation and
procedures for the decertification process and the Subcommittee or its designee’s authority
to implement these procedures. According to the Executive Director, these misapplied
statutory provisions laid out the core of his argument: that the Subcommittee of the
Governor’s Committee, or its designee, has the sole authority to decertify law enforcement
officers in West Virginia and that the statutory language does not allow for the
decertification provisions to be subordinate to the civil service provisions. As such, it is
imperative that the circuit court apply the correct statutory provisions.
This Court has previously found that applying incorrect statutes in a
particular matter is, in itself, reversible error. Mott v. Kirby, 225 W. Va. 788, 789, 696
S.E.2d 304, 305 (2010) (“Because this Court finds that the circuit court applied the wrong
statute to the proceedings below, we reverse and remand for proceedings consistent with
this opinion.”); see also Taylor v. Steager, No. 16-0910, 2018 WL 1674228, at *1 (W. Va.
Apr. 6, 2018) (memorandum decision) (“However, because the circuit court applied the
incorrect statute, we conclude that the circuit court’s reversal of the OTA’s final decision
was erroneous.”).
Furthermore, while Mr. Ward responded in his brief with a plethora of
different arguments, he failed to respond to this first assignment of error. At no point in
his brief does Mr. Ward argue that the circuit court did, in fact, analyze and rely on the
14
correct statutory provisions or that even if the circuit court did misapply the statutes, that
it was not reversible error. West Virginia Rule of Appellate Procedure 10(d) provides that
“[u]nless otherwise provided by the Court, the argument section of the respondent’s brief
must specifically respond to each assignment of error, to the fullest extent possible. If the
respondent’s brief fails to respond to an assignment of error, the Court will assume that
the respondent agrees with the petitioner’s view of the issue.” (Emphasis added).
Accordingly, we rule against Mr. Ward.
B. The circuit court incorrectly applied the due process protections in
employment disputes to a proceeding governing law enforcement professional
certification, confusing an administrative action with an employment decision
In the Executive Director’s second assignment of error, he contends that the
circuit court erred by incorrectly applying the due process protections in employment
disputes contained within the civil service statute, West Virginia Code § 8-14-20, to an
entirely separate and distinct proceeding governing law enforcement professional
certification, which is codified in West Virginia Code §§ 30-29-1 et seq. Particularly, the
Executive Director contends that the circuit court erred by subordinating the professional
decertification procedures to civil service discipline or termination procedures.
Significantly, Mr. Ward’s response fails to articulate any argument or
response as to why the civil service provisions must be invoked prior to the Subcommittee
instituting decertification proceedings, except for this vague hypothetical question: “If the
lower court’s order is not affirmed, why would any police department ever initiate
15
termination or disciplinary proceedings . . . when the police department can just have the
[] Subcommittee do the same thing without all the necessary requirements, formalities[,]
and protections?” We further note that Mr. Ward’s response fails to give any explanation
as to why the civil service statutory scheme does not make any mention of the
decertification process or why there are separate statutory provisions under the
decertification statutory scheme for law enforcement officers who are separated from
employment. Accordingly, we agree with the Executive Director that the civil service
employment statutory scheme is entirely separate and independent from the law
enforcement decertification administrative scheme.
First and foremost, it is important to review the significance and importance
of the statutory scheme for decertifying law enforcement officers. “The most common
state legislative and administrative approach for addressing police misconduct,[18] which is
18
As scholars have noted,
[t]raditional remedies for police misconduct fail to
address the problem caused by the practice of leaving the
decision to hire and fire officers up to local sheriffs and chiefs.
This often leads to situations where unfit officers are able to
continue to work for a department that is unable or unwilling
to terminate them. Even when they are terminated, these
officers often go to work for other departments within the state.
Although virtually every other profession is regulated by a
state board with the power to remove or suspend the licenses
or certificates of unfit members of the profession (e.g.,
attorneys, physicians, teachers), there has been a longstanding
tradition of local control of police without state involvement.
16
largely unknown to scholars and the public even though it has been adopted by forty-three
states, involves revocation of the officer’s state certificate or license that is issued upon
successful completion of state-mandated training.” Roger L. Goldman & Steven Puro,
Revocation of Police Officer Certification: A Viable Remedy for Police Misconduct?, 45
St. Louis U. L.J. 541, 542 (2001) (footnote omitted). Furthermore, “[a]s opposed to
termination of employment by a local department, which does not prevent the officer from
being rehired by a different department, revocation of the certificate prevents the officer
from continuing to serve in law enforcement in the state.” Id. (footnote omitted). This
practice of revoking or decertifying a law enforcement officer “has the advantage of
insuring that officers cannot continue to practice their profession in the state by suspending
or removing state certification.” Id. at 544. Essentially, this practice “treats the police
profession like any other—if minimum standards of performance are not met, the person
loses the privilege of continuing in the profession.” Id. (footnote omitted). Additionally,
“[r]ecognizing the need for a law that removes unfit officers from the profession,
particularly those engaging in repeated misconduct, most states have adopted revocation
laws[.]” Id. at 547-48 (footnote omitted).
Since at least the 1980s, the West Virginia Legislature has recognized that
law enforcement officers were professionals and authorized either the Governor’s
Roger L. Goldman & Steven Puro, Revocation of Police Officer Certification: A Viable
Remedy for Police Misconduct?, 45 St. Louis U. L.J. 541, 545-46 (2001).
17
Committee or its Subcommittee to promulgate certification requirements and the authority
to certify law enforcement officers pursuant to those requirements. See W. Va. Code § 30-
29-3 (LexisNexis 1986); see also W. Va. Code § 30-29-3 (LexisNexis 2018). Moreover,
since at least 2012, the Legislature has given either the Governor’s Committee, the
Subcommittee, or their designee the power to decertify law enforcement officers for certain
enumerated conduct. See W. Va. Code § 30-29-3 (LexisNexis 2012); see also W. Va. Code
§ 30-29-3 (LexisNexis 2018). Additionally, this Court has been clear in holding that if a
board has the power to give a license or certification, it has the inherent power to revoke
that same license or certification for good cause, and may do so “whether or not the power
to revoke is expressly or impliedly reserved in the licensing statute or in the certificate of
license.”19 Syl. pt. 6, in part, Mounts v. Chafin, 186 W. Va. 156, 411 S.E.2d 481 (1991).
As such, it is evident that our Legislature has recognized the importance of creating a
statutory scheme to certify and decertify law enforcement officers like every other
regulated profession and the importance of authorizing the Subcommittee or its designee
as the only authority to certify and decertify law enforcement officers.
Moreover, the explicit language of each section demonstrates the
Legislature’s intent to have two separate and independent statutory schemes: one for
19
Syl. pt. 6, Mounts v. Chafin, 186 W. Va. 156, 411 S.E.2d 481 (1991) (“A
license may be revoked for due cause at any time in accordance with provisions in the
licensing act or ordinance or in the certificate of license. A license may also be revoked in
the exercise of the police power of the state, whether or not the power to revoke is expressly
or impliedly reserved in the licensing statute or in the certificate of license.”).
18
protecting a civil service employee’s interest in his/her employment and one for protecting
the regulation of the law enforcement profession. For instance, the civil service provisions
set forth a right for law enforcement officers employed by municipalities to have a hearing
before he or she is “removed, discharged, suspended or reduced in rank or pay.” W. Va.
Code § 8-14-20(a) (LexisNexis 2017). Additionally, we have reiterated that the civil
service provisions set forth the requirements “to be followed when a police department
removes, discharges, suspends, or reduces the rank or pay of a police officer.” Cline v.
Roark, 179 W. Va. 482, 483 n.2, 370 S.E.2d 138, 139 n.2 (1988). Significantly, the entire
text of the civil service provisions make no mention of the decertification process. It is
well-established that:
If the Legislature explicitly limits application of a doctrine or
rule to one specific factual situation and omits to apply the
doctrine to any other situation, courts should assume the
omission was intentional; courts should infer the Legislature
intended the limited rule would not apply to any other situation.
Hence, a statute which specifically provides that a thing is to
be done in a particular manner, normally implies that it shall
not be done in any other manner. See 73 Am.Jur.2d Statutes §
211 (1974). “This canon is a product of logic and common
sense, and it has special force when the statutory scheme is
carefully drafted.” State v. Sugg, 193 W. Va. 388, 401 n. 14,
456 S.E.2d 469, 482 n. 14 (1995).
State ex rel. Riffle v. Ranson, 195 W. Va. 121, 128, 464 S.E.2d 763, 770 (1995).
On the other hand, the administrative certification/decertification provisions
provide that the Subcommittee or its designee “may decertify or reactivate a law-
enforcement officer pursuant to the procedure contained in [Article 29] and legislative rules
19
promulgated by the [S]ubcommittee.” W. Va. Code §30-29-5(h). The accompanying
legislative rules further demonstrate that the Legislature intended for these two statutory
schemes to work independently of each other. For example, West Virginia Code of State
Rules § 149-2-16.2 provides that “[e]mployment by another agency or reinstatement of a
law enforcement officer by his parent agency after termination, whether termination was
voluntary or involuntary, does not preclude suspension, revocation or denial of law
enforcement certification, if the law enforcement officer was terminated for any of the
reasons contained in this section.” Additionally, West Virginia Code of State Rules
§ 149-2-16.3 provides that “[t]ermination of a law enforcement officer, whether voluntary
or involuntary, does not preclude suspension, revocation or denial of law enforcement
certification, if the officer was terminated for any reasons contained in this section.”
Moreover, West Virginia Code of State Rules § 149-2-16.4 demonstrates how these two
schemes are to be applied independently: “[a]n employing agency shall not seek de-
certification of a law-enforcement officer prior to or in lieu of termination.” As such, the
language utilized by the Legislature shows how the civil service provisions have no bearing
on the decertification provisions and when the decertification process can be initiated.
Mr. Ward has cited to no language of the statutory framework or the
accompanying legislative rules that definitively state that a law enforcement officer must
undergo the hearing procedures of the civil service statute prior to the Subcommittee or its
designee obtaining its authority to begin the decertification process. Accordingly, the clear
20
and unambiguous statutory language demonstrates that these two statutory schemes have
different purposes and function independently of each other.
Additionally, the Executive Director argues that “the circuit court’s
conclusion that termination must precede decertification would render the other sections—
specifically, sections ignored in the circuit court’s analysis—redundant.” We agree. As
discussed above, the circuit court analyzed and applied the wrong statutory provisions.
Accordingly, the circuit court failed to consider West Virginia Code § 30-29-1120, which
provides for procedures to be followed when decertifying law enforcement officers who
are separated from their employment. If decertification can occur only post-termination,
then the provisions of West Virginia Code § 30-29-11 would be redundant and
meaningless. We have previously held that “‘[i]t is always presumed that the legislature
will not enact a meaningless or useless statute.’” Matheny v. Scolapio, 240 W. Va. 30, 39,
807 S.E.2d 278, 287 (2017) (quoting Syl. pt. 4, State ex rel. Hardesty v. Aracoma-Chief
Logan No. 4523, Veterans of Foreign Wars of the United States, Inc., 147 W. Va. 645, 129
S.E.2d 921 (1963)).
Lastly, we note that both statutory schemes provide for their own due process
protections.21 The civil service provisions provide for notice, including a written statement
20
The circuit court instead analyzed West Virginia Code § 30-29-3(a)(11).
21
Because the circuit court erroneously subordinated the decertification
statutes to the civil service statutes, the circuit court did not address any claim regarding
21
of charges; ability to answer the statement of charges; if demanded, a public hearing; ability
to be represented by legal counsel; written record of all testimony; and right of appeal to
the circuit court. See W. Va. Code § 8-14-20(a).
The decertification provisions also provide for due process protections. In
particular, the legislative rules, approved by the Legislature, outline the specific reasons
that a certification may be revoked. W. Va. Code R. § 149-2-16. The legislative rules
further provide that “an officer or individual whose certification as a law enforcement
officer . . . has been denied, suspended or decertified pursuant to a final decision of the
Subcommittee, may appeal that final decision of the Subcommittee to the Governor’s
Committee on Crime, Delinquency and Correction.” W. Va. Code R. § 149-2-20.
Additionally, the procedural rules contained in West Virginia Code of State Rules §§ 149-
1-1 et seq. provide for all procedural protections outlined in the Administrative Procedures
Act. These protections include, but are not limited to: a hearing if demanded; ability to be
represented by counsel; ability to submit evidence including testimony, papers, records,
and documents; ability to cross-examine witnesses, submit rebuttal evidence, right to offer
argument; official transcription of reported testimony and evidence; submission of
proposed findings of fact and conclusions of law; appointment of a hearing examiner; and
judicial review of any adverse final decision. Id.
the sufficiency of due process under the decertification statutory framework. Accordingly,
we do not address the sufficiency of these statutes in this case.
22
As such, both of these statutory schemes protect two separate and
independent interests: employment protections and the regulation of mandatory
professional certifications. Neither of these statutory schemes are subordinate to the other,
but each has their own procedure and protections. Therefore, the circuit court erred when
it determined that the civil service statutory scheme must always precede a law
enforcement officer’s decertification proceeding.22 Consequently, we reverse the circuit
court’s January 23, 2018 Final Order reversing the November 10, 2016 Executive
Director’s Written Decision decertifying Mr. Ward as a law enforcement officer in the
State of West Virginia.23
22
This is consistent with other courts as well. See Pangallo v. Kentucky Law
Enf’t Council, 106 S.W.3d 474, 477 (Ky. Ct. App. 2003) (finding that because a law
enforcement officer waived his right to a due process procedures applicable to the
termination of a police officer did not also waive his right to due process procedures
regarding his law enforcement certification); Hannigan v. Mun. Police Officers’ Educ. &
Training Comm’n, No. 612 C.D. 2011, 2012 WL 5286230, at *8 (Pa. Commw. Ct. July 5,
2012) (“There is no conflict between the Commission’s authority to decertify a police
officer and the borough civil service commission’s authority to remove a police officer
from the police force. A revocation of certification and a disciplinary action taken by the
civil service commission are subject to separate due process hearings under the respective
statutes. The Commission did not terminate Hannigan’s employment in this proceeding.
Although his decertification may eventually lead to a separate personnel action, the
Commission did not usurp the civil service commission’s authority.” (emphasis added)).
23
While the Executive Director raised only two assignments of error in his
opening brief, which we addressed in turn above, he also generally argued that none of Mr.
Ward’s other objections to the procedure utilized by the Subcommittee and the Executive
Director constitute a sufficient basis to affirm the judgment of the circuit court. We decline
to address this non-assignment of error. As acknowledged by the Executive Director, the
circuit court did not reach any final decision on these additional procedural issues. See
Skaggs v. E. Associated Coal Corp., 212 W. Va. 248, 256 n.3, 569 S.E.2d 769, 777 n.3
(2002) (“Because the circuit court did not reach the merits of these [contentions] by the
plaintiff, we decline to address them[.]”). Additionally, Mr. Ward raises a litany of issues
in his response brief that the circuit court also did not reach on the merits. It is well-settled
23
IV.
CONCLUSION
For the reasons set forth above, the January 24, 2018 Final Order of the
Circuit Court of Ohio County reversing the November 10, 2016 order of the Executive
Director decertifying Mr. Ward as a law enforcement officer in the State of West Virginia
is reversed, and this case is remanded to the circuit court to vacate its order reversing the
Executive Director’s Written Decision and for further proceedings consistent with this
opinion.
Reversed and Remanded.
that “[i]n the exercise of its appellate jurisdiction, this Court will not decide
non[-]jurisdictional questions which were not considered and decided by the court from
which the appeal has been taken.” Syl. pt. 1, Mowery v. Hitt, 155 W. Va. 103, 181 S.E.2d
334 (1971). As such, we decline to address those issues.
24