Sonya Porter, Sheriff of Logan County v. James H. Brown, III ( 2019 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
SONYA PORTER,
Sheriff of Logan County, West Virginia,
Petitioner FILED
November 13, 2019
vs) 18-0729 (Logan County No. 13-C-165) released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
JAMES H. BROWN, III,
Respondent
MEMORANDUM DECISION
Petitioner Sonya Porter, Sheriff of Logan County (“Sheriff Porter”), appeals
the July 26, 2018, order of the Circuit Court of Logan County. The circuit court ordered
Sheriff Porter to pay Respondent James H. Brown, III (“Deputy Brown”) $8,136 in
attorney’s fees, plus $44.22 in costs pursuant to a mandamus action Deputy Brown filed
seeking to compel Sheriff Porter to pursue and conclude an internal investigation into
allegations of misconduct against him. On appeal,1 Sheriff Porter asserts that the circuit
court erred in its analysis of our statute addressing the procedure for investigating a deputy
sheriff, W. Va. Code § 7-14C-1 et seq. (1995). Further, Sheriff Porter argues that the circuit
court lacked subject matter jurisdiction over this matter and, therefore, did not have the
authority to award attorney’s fees to Deputy Brown.
After review and for the reasons stated herein, we affirm the circuit court’s
order. Because we find no substantial question of law and no prejudicial error, a
memorandum decision affirming the circuit court’s order is appropriate under Rule 21(c)
of the Rules of Appellate Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 9, 2012, Sheriff W. E. Hunter gave Deputy Brown a written
“Notice of Internal Investigation” (“Notice”). It provided
an Internal Investigation has been ordered by the Sheriff in
various allegation [sic] of misconduct made against you. The
Investigation is in the early stages and a complete description
1
Sheriff Porter is represented by John R. Teare, Jr. Deputy Brown is represented
by George L. Partain and Erica Barker Cook.
1
of the potential violations is not possible at this time.2 To the
extent the Internal Investigation results in any recommendation
for punitive action, specific allegations will be provided to you
and you will be entitled to a hearing prior to any discipline
more serious than counseling.
You are further informed that the Investigation will be
conducted by Cpl. F. N. Ferrell who will report directly to me.
This Investigation could lead to punitive action up to and
including termination of employment. As such, the
Investigation will be conducted pursuant to West Virginia
Code 7-14C-1 through 5. You have the right to retain legal
counsel to represent you at your expense should you desire.
Additionally, the Notice provided that Deputy Brown was placed on “paid
administrative leave during the pendency of this investigation and until further notice.”
The Notice set forth the following conditions Deputy Brown was required to follow during
his “paid administrative leave”: 1) attend all scheduled court dates, 2) obey all rules and
regulations of the sheriff’s department, 3) remain at his place of residence from 8:30 a.m.
until 4:30 p.m. Monday through Friday unless another location is authorized, 4) respond to
phone calls from the sheriff’s office, 5) be reasonably available for investigative purposes,
6) “any secondary employment previously approved is no longer approved,” 7) “surrender
all the assigned equipment, uniforms, keys, etc.” in his possession, and 8) do not exercise
any authority of the sheriff’s department or engage in any law enforcement activities.
Regarding the sixth condition, Deputy Brown had secondary employment that he was
forced to quit as a result of being placed on “paid administrative leave.” See W. Va. Code
§ 7-14-15a (allowing deputy sheriffs to engage in paid police work in addition to their
regular work as a deputy).
Finally, the Notice provided that Corporal Ferrell “will contact you in the
near future to schedule all necessary interviews.” (Emphasis added). Aside from informing
Deputy Brown that he would be contacted in the “near future,” the Notice did not provide
any timeframe addressing how long he would remain on “paid administrative leave.”
On January 1, 2013, Sonya Porter, the newly elected Sheriff, took office.
Corporal Ferrell completed his investigation near the end of January 2013 and submitted a
report to Sheriff Porter. Despite the Notice’s statement that Corporal Ferrell “will contact
you in the near future,” Deputy Brown was not contacted during the course of Corporal
2
Sheriff Porter’s brief to this Court provided that Deputy Brown did not ask why
he was being investigated. However, during oral argument, counsel for Sheriff Porter
informed the Court that Deputy Brown did ask why he was being placed on leave upon
receiving the Notice. The Sheriff did not provide a specific reason to Deputy Brown.
2
Ferrell’s investigation, nor was he interviewed prior to Corporal Ferrell completing his
report. No explanation was provided to Deputy Brown as to why Corporal Ferrell
completed his investigation without interviewing him.
On April 26, 2013, Deputy Brown filed a petition for reinstatement with the
Logan County Deputy Sheriffs’ Civil Service Commission (“Commission”). In the
petition, Deputy Brown asserted that he had, in effect, been suspended or removed pursuant
to the Notice in November 2012. The petition provided that “[m]ore than five months have
passed and . . . [Deputy Brown] has never been provided with a written statement of the
reasons for the Sherriff’s actions.” Deputy Brown requested that the Commission convene,
hold a hearing, and direct Sheriff Porter to reinstate him.
On May 3, 2013, Sheriff Porter filed a response in opposition to Deputy
Brown’s petition. Sheriff Porter argued that the Commission lacked the authority to
reinstate Deputy Brown because he had not been disciplined, rather, he was on paid
administrative leave during an active internal investigation of misconduct. On May 8,
2013, Deputy Brown filed a reply with the Commission and made a second request for it
to hold a hearing. On May 23, 2013, Deputy Brown made a third request for the
Commission to hold a hearing and stated that if it failed to do so, he would seek a writ of
mandamus before the circuit court in order to compel the hearing. The Commission did
not schedule a hearing.
On June 27, 2013, approximately eight months after being placed on
indefinite “paid administrative leave,” Deputy Brown filed a civil action seeking
mandamus relief to compel: 1) the Commission to convene and hold a public hearing on
his petition for reinstatement; and 2) Sheriff Porter to pursue and conclude the internal
investigation. Deputy Brown requested attorney’s fees and costs. The circuit court held a
hearing and, by order entered on August 26, 2013, determined that “commissioners need
to be appointed to the . . . Commission before the [c]ourt considers [Deputy Brown’s]
requested relief against it[,]” and that Deputy Brown “may proceed with his petition for his
requested relief against [Sheriff Porter].”
Shortly after the circuit court ruled that Deputy Brown could proceed with
his petition for relief against Sheriff Porter, she hired a new employee, Corporal Mayes,
who was directed to investigate the allegations against Deputy Brown.3 On October 4,
2013, Corporal Mayes interviewed Deputy Brown. Thereafter, the internal investigation
3
It is unclear from the record the exact date when Corporal Mayes was hired.
However, it is undisputed that Corporal Mayes was hired and the investigation into Deputy
Brown began to move forward after the circuit court ruled that Deputy Brown could pursue
a mandamus action against Sheriff Porter.
3
concluded, and Sheriff Porter issued a Notice of Termination, Statement of Charges, and
Notice of a Right to a Hearing on December 16, 2013.4
After holding a hearing on all pending motions on January 27, 2014, the
circuit court issued an order on February 7, 2014, ordering the Commission to “convene a
hearing” on Deputy Brown’s petition for reinstatement on or before May 11, 2014.5
Further, the order provided that all other matters related to Deputy Brown’s petition for
mandamus relief would be held in abeyance.
The Commission held a hearing on Deputy Brown’s petition for
reinstatement on April 4, 2014. In a ruling issued on June 19, 2014, the Commission
entered an order
styled “Logan County Deputy Sheriff's Civil Service
Commission Findings of Fact, Conclusions of Law and Final
Order.” Among other things, the Commission concluded that
although not specifically provided for by statute,
administrative leave with pay during the pendency of an
investigation is within the authority of a sheriff, but the length
and scope of the investigation must be reasonable in light of
the allegations or complaints of misconduct. The Commission
also determined that notice of the allegations must be given to
the deputy without delay. Further, the Commission decided
that an action of administrative leave with pay must follow the
letter and spirit of the statute in terms of scope and
reasonableness. The Commission specifically concluded that
Deputy Brown was not given notice of the allegations he faced,
and the length of Sheriff Porter’s investigation exceeded its
scope and reasonableness. Accordingly, the Commission
ordered that Deputy Brown be reinstated to full duties as a
Logan County deputy sheriff. Deputy Brown’s counsel was
ordered to submit an itemized statement of fees and expenses
for consideration and further order of the Commission.
4
The Notice of Termination and Statement of Charges are not part of the record
before this Court.
5
Sheriff Porter filed a motion to dismiss Deputy Brown’s mandamus action on
August 30, 2013. The circuit court denied this motion to dismiss in its February 7, 2014,
order.
4
Port. v. Brown, No. 15-1213, 2017 WL 1345258, at *3 (W. Va. April 12, 2017)
(memorandum decision) (“Porter I”).6
We emphasize that Sheriff Porter did not file an appeal after the Commission
entered its order reinstating Deputy Brown to the sheriff’s department. Instead, in
September 2014, Deputy Brown appealed the Commission’s June 19, 2014, order to the
circuit court (case number 15-AA-2), “raising several errors of fact and law.” Deputy
Brown sought back pay in his appeal of the Commission’s order. Sheriff Porter filed a
motion to dismiss Deputy Brown’s appeal.
After holding a hearing on Sheriff Porter’s motion to dismiss Deputy
Brown’s appeal, the circuit court issued an order in May 2015: 1) granting Sheriff Porter’s
motion to dismiss Deputy Brown’s appeal, 2) ordering Deputy Brown’s counsel to submit
an invoice to the Commission for attorney’s fees attributable to their work before the
Commission, 3) ordering the Commission to enter a “Final Order” setting forth the exact
amount of the attorney’s fees the Commission awards Deputy Brown’s counsel, and 4)
ordering Deputy Brown’s counsel to submit an invoice to the circuit court for fees and
costs that were incurred in the mandamus action.7
On September 21, 2015, the Commission entered a “Final Order Granting
Appellant [Deputy Brown] Fees and Costs” and ordered payment of $10,757.48 to Deputy
Brown. On November 19, 2015, the circuit court entered an order specifying that Sheriff
Porter was to pay an attorney fee award of $7,262.22. In December 2015, Sheriff Porter
appealed the November 19, 2015, circuit court order to this Court, raising four assignments
of error.8
6
The Commission’s order is not part of the record in the present case.
7
While the circuit court ordered Deputy Brown’s counsel to submit an invoice for
the fees it incurred in the mandamus action in May 2015, the court subsequently held a
hearing on such attorney’s fees on July 16, 2015. It determined that an award of attorney’s
fees for the work performed in the mandamus action was appropriate.
8
The four assignments of error raised by Sheriff Porter in Porter I are as follows:
First, it was asserted that the circuit court erred in
determining that Deputy Brown was entitled to a hearing
before the Commission to challenge his placement on paid
administrative leave. Second, it was claimed that the circuit
court erred when it adopted the findings of the Commission in
support of the award of attorney’s fees. Third, Sheriff Porter
asserted the circuit court erred in interfering with the lawful
authority of the Sheriff, imposing requirements on the Sheriff
5
On April 12, 2017, this Court remanded the case back to the circuit court for
further proceedings “as the parties and the circuit court deem necessary and appropriate.”
Porter I at *6. In Porter I, the Court noted, “[w]e are being asked to determine the
appropriateness of attorney’s fees in a vacuum. We cannot possibly assess the
appropriateness of the attorney’s fees when we are unable to determine if the litigation
itself was appropriate. What findings of fact and conclusions of law supported the award
of attorney’s fees?” Id.
Following remand, the circuit court held a hearing on these outstanding
issues. By order entered on July 26, 2018, the circuit court ruled: (1) that the paid
administrative leave imposed upon Deputy Brown by Sheriff Porter “is determined to be
discipline and punishment”; (2) that the Commission properly exercised jurisdiction over
Deputy Brown’s petition for reinstatement “as well as over his case for those purposes for
which the Circuit Court compelled it to hold a hearing, and that, under the circumstances
of this case, had jurisdiction to review the internal investigative activities of deputy sheriffs
by the sheriff and the procedure for investigation and pre-disciplinary hearings of deputy
sheriffs”; (3) that the circuit court properly exercised jurisdiction over the petition for a
writ of mandamus that was filed by Deputy Brown and “could properly issue the same as
it did in this case”; and (4) that Sheriff Porter pay Deputy Brown’s attorney’s fees in the
amount of $8,136, plus costs of $44.22.
Following entry of this order, Sheriff Porter filed the present appeal.
II. STANDARD OF REVIEW
Sheriff Porter appeals the circuit court’s order to award attorney’s fees to
Deputy Brown in connection with the mandamus action. This Court has held that “[t]he
standard of appellate review of a circuit court’s order granting relief through the
extraordinary writ of mandamus is de novo.” Syl. Pt. 1, Staten v. Dean, 195 W. Va. 57, 464
S.E.2d 576 (1995). Further, insofar as Sheriff Porter’s assignments of error concern
statutory law, we have held that “[i]nterpreting a statute or an administrative rule or
regulation presents a purely legal question subject to de novo review.” Syl. Pt. 1,
Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W. Va. 573, 466 S.E.2d 424
(1995). Finally, this Court has explained that “[t]ypically, we have reviewed the
reasonableness of the amount of an award of attorney’s fees for an abuse of discretion.”
beyond the authority of the Commission, and by apparently
adopting and incorporating erroneous procedures enunciated
by the Commission in its final order. Fourth, Sheriff Porter
claimed there was no statutory, legal, or other basis for an
award of attorney’s fees in favor of Deputy Brown.
Porter I at *1.
6
Daily Gazette Co., Inc. v. W. Va. Dev. Office, 206 W.Va. 51, 57, 521 S.E.2d 543, 549
(1999).9 With these standards as guidance, we consider the parties’ arguments.
III. ANALYSIS
At the outset, we note that this appeal does not concern whether Deputy
Brown will be reinstated to his position as a deputy—the Commission granted Deputy
Brown’s petition for reinstatement and Sheriff Porter did not appeal the Commission’s
order. The only issue that will be resolved by our ruling herein is whether Deputy Brown
is entitled to an attorney fee award for the work his counsel performed in the mandamus
action. However, Sheriff Porter seeks a broad holding from this Court defining the
contours of how a sheriff may utilize “paid administrative leave” during the course of an
internal investigation. We decline that invitation. Instead, we will examine and address
only the factual scenario before us—whether the circuit court abused its discretion when it
entered an award of attorney’s fees to a deputy sheriff who filed a mandamus action after
he was placed on indefinite “paid administrative leave,” and was subject to a number of
conditions, including loss of secondary income, without being informed of the allegations
against him for thirteen months.
Sheriff Porter raises several assignments of error in this appeal. These
assignments of error require us to examine three main issues: 1) whether Deputy Brown
being placed on indefinite “paid administrative leave” and being subject to a number of
conditions constituted “punitive action” under W. Va. Code § 7-14C-1 et seq.; 2) whether
the circuit court erred by concluding that the “leave imposed on [Deputy Brown] is
tantamount to suspension”; and 3) whether the circuit court lacked subject matter
jurisdiction over this matter.10 Because these issues involve our statutes concerning the
procedure for investigating a deputy sheriff, W. Va. Code 7-14C-1 et seq., and civil service
for deputy sheriffs, W. Va. Code § 7-14-1 et seq., we begin our analysis with a review of
our rules of statutory interpretation.
This Court has held that in deciding the meaning of a statutory provision,
“[w]e look first to the statute’s language. If the text, given its plain meaning, answers the
interpretive question, the language must prevail and further inquiry is foreclosed.”
9
“[T]he trial [court] . . . is vested with a wide discretion in determining the amount
of . . . court costs and counsel fees, [sic] and the trial [court’s] . . . determination of such
matters will not be disturbed upon appeal to this Court unless it clearly appears that [it] has
abused [its] discretion.” Syl. Pt. 2, Daily Gazette Co., Inc., 206 W. Va. 51, 521 S.E.2d 543
(internal quotation and citation omitted).
Sheriff Porter raises seven assignments of error. Because a number of these errors
10
overlap and, in the interest of brevity, we consolidate related assignments of error. See
Tudor’s Biscuit World of Am. v. Critchley, 229 W. Va. 396, 401-02, 729 S.E.2d 231, 236-
37 (2012) (consolidating related assignments of error).
7
Appalachian Power Co., 195 W.Va. at 587, 466 S.E.2d at 438; see also Syl. Pt. 2, Crockett
v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970) (“Where the language of a statute is
free from ambiguity, its plain meaning is to be accepted and applied without resort to
interpretation.”); and Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951) (“A
statutory provision which is clear and unambiguous and plainly expresses the legislative
intent will not be interpreted by the courts but will be given full force and effect.”).
Additionally, this Court has held that “[a] statute is open to construction only where the
language used requires interpretation because of ambiguity which renders it susceptible of
two or more constructions or of such doubtful or obscure meaning that reasonable minds
might be uncertain or disagree as to its meaning.” Sizemore v. State Farm Gen. Ins. Co.,
202 W.Va. 591, 596, 505 S.E.2d 654, 659 (1998) (internal quotations and citation omitted).
Our review of W. Va. Code § 7-14C-1 et seq. reveals that the language of the
statute is free from ambiguity and its plain meaning may be applied. The statute begins
with a list of definitions (W. Va. Code § 7-14C-1), proceeds to describe the procedure for
investigating a deputy (W. Va. Code § 7-14C-2), and then sets forth a deputy’s right to a
hearing before and after punitive action is taken (W. Va. Code § 7-14C-3).
The phrase “punitive action” is defined in W. Va. Code § 7-14C-1(3) as
follows: “‘Punitive action’ means any action which may lead to dismissal, demotion,
suspension, reduction in salary, written reprimand or transfer for purposes of punishment.”
West Virginia Code § 7-14C-2, entitled “[i]investigation and interrogation of a deputy
sheriff,” describes the procedure to be followed when a deputy sheriff is under
investigation. It provides, in relevant part:
When any deputy sheriff is under investigation and subjected
to interrogation by his or her commanding officer, or any other
member of the department, which could lead to punitive action,
the interrogation shall be conducted under the following
conditions:
(a) The interrogation shall be conducted at a reasonable hour,
preferably at a time when the deputy sheriff is on duty, or
during his or her normal working hours, unless the seriousness
of the investigation requires otherwise. If the interrogation
does occur during the off-duty time of the deputy sheriff being
interrogated at any place other than his or her residence, the
deputy sheriff shall be compensated for that off-duty time in
accordance with regular department procedure. If the
interrogation of the deputy sheriff occurs during his or her
regular duty hours, the deputy sheriff may not be released from
employment for any work missed due to interrogation.
8
(b) Any deputy sheriff under investigation shall be informed of
the nature of the investigation prior to any interrogation. The
deputy sheriff shall also be informed of the name, rank and
command of the officer in charge of the interrogation, the
interrogating officers and all other persons to be present during
the interrogation. No more than three interrogators at one time
may question the deputy sheriff under investigation.
....
Nothing herein prohibits the immediate temporary suspension
from duty, pending an investigation, of any deputy sheriff who
reports for duty under the influence of alcohol or a controlled
substance which would prevent the deputy from performing his
or her duties as defined in chapter sixty-a of this code, or under
the influence of an apparent mental or emotional disorder.
Next, W. Va. Code § 7-14C-3(a), addressing a deputy’s right to a hearing,
provides, in relevant part, “[i]f the investigation or interrogation of a deputy sheriff results
in the recommendation of some punitive action, then, before taking punitive action the
sheriff shall give notice to the deputy sheriff that he or she is entitled to a hearing on the
issues by a hearing board.” (Emphasis added).11 This Court discussed W. Va. Code § 7-
14C-3 in Burgess v. Moore, 224 W.Va. 291, 685 S.E.2d 685 (2009), holding in syllabus
point 5: “W. Va. Code § 7-14C-3(a) (1995) (Repl. Vol. 2006) requires a sheriff to notify a
deputy sheriff facing discipline of his/her entitlement to a hearing on the issues giving rise
to such discipline ‘before . . . punitive action’ is taken.” This Court described the two types
of hearings that are contemplated by W. Va. Code § 7-14C-3 in syllabus point 6 of Burgess:
W. Va. Code § 7-14C-3 (1995) (Repl. Vol. 2006)
contemplates two distinct types of hearings. The first type of
hearing, which is governed by W. Va. Code §§ 7-14C-3(a &
b), is a predisciplinary hearing, which is conducted before
disciplinary action has been taken and is held before a hearing
board. Alternatively, the second type of hearing, which is
11
West Virginia Code § 7-14C-3(b) provides:
(b) The hearing shall be conducted by the hearing board of the
deputy sheriff except that in the event the recommended
punitive action is discharge, suspension or reduction in rank or
pay, and the action has been taken, the hearing shall be
pursuant to the provisions of section seventeen, article fourteen
of this chapter, if applicable. Both the sheriff and the deputy
sheriff shall be given ample opportunity to present evidence
and argument with respect to the issues involved.
9
governed by W. Va. Code § 7-14C-3(b), is conducted after
disciplinary action in the form of “discharge, suspension or
reduction in rank or pay” has been taken and is held in
accordance with the provisions of W. Va. Code § 7-14-17
(1996) (Repl. Vol. 2006).
Based on the plain language of W. Va. Code 7-14C-1 et seq., a sheriff is
required to do two things prior to taking punitive action against a deputy: 1) give the deputy
notice of “the issues” accompanying the punitive action, and 2) notify the deputy that he
or she is entitled to a hearing on the issues by a hearing board. In the present case, the
circuit court determined that the actions Sheriff Porter took against Deputy Brown—
placing him on indefinite leave and imposing numerous conditions including loss of
secondary employment—constituted punitive action. We agree.
The plain language of W. Va. Code 7-14C-1(3) defining “punitive action”
encompasses a wide variety of punishments that range from the severe (“dismissal”) to the
relatively minor (“written reprimand”). Deputy Brown was placed on indefinite “paid
administrative leave” and was subject to a number of conditions including loss of
previously approved secondary employment. He was also required to be at his house every
weekday from 8:30 a.m. to 4:30 p.m., and was required to be “reasonably available for
investigative purposes.” We emphasize that there was no time limit on these conditions
imposed against Deputy Brown. We find that the indefinite imposition of these conditions
fall under the broad definition of “punitive action” contained in W. Va. Code § 7-14C-1(3).
In particular, we conclude that depriving Deputy Brown of previously approved secondary
employment, on an indefinite basis, is a more severe punishment than a written reprimand.
Additionally, requiring Deputy Brown to hold himself available for investigative purposes
on an indefinite basis, with no notice of the allegations against him, and requiring him to
be in a specific location every weekday on an indefinite basis, is, at the very least, as severe
as a “written reprimand.”
Because the actions taken against Deputy Brown were punitive, we find that
Sheriff Porter was required to provide Deputy Brown with notice of the issues underlying
the punitive action, and notice that he was entitled to a hearing on these issues pursuant to
the plain language of W. Va. Code § 7-14C-3(a): “before taking punitive action the sheriff
shall give notice to the deputy sheriff that he or she is entitled to a hearing on the issues by
a hearing board.”12
12
Additionally, we note that the Notice provided to Deputy Brown provided that
“[t]his investigation could lead to punitive action up to and including termination of
employment.” West Virginia Code § 7-14C-1(3) provides that punitive action “means any
action which may lead to dismissal, demotion, suspension, reduction in salary, written
reprimand or transfer for purposes of punishment.” (Emphasis added). Similarly, W. Va.
Code § 7-14C-2 refers to an investigation that “could lead to punitive action.” Because the
10
Next, we address whether the indefinite “paid administrative leave” was
tantamount to a suspension. In reviewing this issue, we note that Deputy Brown does not
argue, and the circuit court did not rule, that a sheriff may never place a deputy on paid
administrative leave. Instead, Deputy Brown argues, and the circuit court ruled, that the
“paid administrative leave” in this case was, in essence, a suspension. West Virginia Code
§ 7-14-17(a) requires a deputy sheriff who has been suspended to be given written notice
of the reason for the suspension and the opportunity to demand a hearing before the
Commission.13
Notice given to Deputy Brown clearly provided that the investigation could lead to punitive
action, we find that he was entitled to the due process guarantees contained in W. Va. Code
§ 7-14C-1 et seq. (notice of the issues underlying the punitive action and notice that he was
entitled to a hearing).
13
West Virginia Code § 7-14-17(a) provides, in full:
(a) No deputy sheriff of any county subject to the provisions of
this article may be removed, discharged, suspended or reduced
in rank or pay except for just cause, which may not be religious
or political, except as provided in section fifteen of this article;
and no such deputy may be removed, discharged, suspended or
reduced in rank or pay except as provided in this article and in
no event until the deputy has been furnished with a written
statement of the reasons for the action. In every case of such
removal, discharge, suspension or reduction, a copy of the
statement of reasons therefor and of the written answer thereto,
if the deputy desires to file such written answer, shall be
furnished to the civil service commission and entered upon its
records. If the deputy demands it, the civil service commission
shall grant a public hearing, which hearing shall be held within
a period of ten days from the filing of the charges in writing or
the written answer thereto, whichever shall last occur. At the
hearing, the burden shall be upon the sheriff to justify his or
her action, and in the event the sheriff fails to justify the action
before the commission, then the deputy shall be reinstated with
full pay, forthwith and without any additional order, for the
entire period during which the deputy may have been
prevented from performing his or her usual employment, and
no charges may be officially recorded against the deputy's
record. The deputy, if reinstated or exonerated, shall, if
represented by legal counsel, be awarded reasonable attorney
fees to be determined by the commission and paid by the
11
Sheriff Porter concedes that the phrase “paid administrative leave” is not
contained in W. Va. Code §§ 7-14C-1 et seq. or 7-14-17(a). However, she asserts that such
leave has been recognized as an appropriate investigative action in a number of decisions
from this Court.14 Further, Sheriff Porter notes that “paid administrative leave” is
specifically authorized by 81 W. Va. C.S.R. § 81-10-10.72. This C.S.R. section, entitled
“West Virginia State Police15 Professional Standards Investigations Employee Rights . . .”
provides:
7.2. By virtue of W. Va. Code § 15-2-21, the Superintendent
has the sole discretion to demote, discharge, and suspend
employees from duty. The Superintendent, upon receiving a
complaint against an employee or upon otherwise learning of
misconduct by an employee, may temporarily relieve the
employee from duty pending further investigation, with or
without compensation, pursuant to State Police operating
policy and procedure. During any administrative leave
attendant to an internal investigation or inquiry, the employee
shall surrender his or her State Police identification, and if a
member, badges, State Police issued weapons, or other State
Police property in his or her possession or control. Further,
members shall be relieved of any police authority during the
pendency of any administrative leave.
sheriff from county funds. A written record of all testimony
taken at the hearing shall be kept and preserved by the civil
service commission, which record shall be sealed and not be
open to public inspection unless an appeal is taken from the
action of the commission.
14
Sheriff Porter cites a number of cases from this Court that deal with an employee
being placed on administrative leave including In re Atterson, No. 17–0506, 2018 WL
2753849 (W. Va. June 8, 2018) (memorandum decision); Winkler v. City of Princeton, No.
14–1021, 2015 WL 4168174 (W. Va. July 9, 2015) (memorandum decision); City of
Weirton v. Sims, No. 14–0279, 2014 WL 4746206 (W. Va. Sept. 23, 2014) (memorandum
decision); and In re Fouty, 229 W.Va. 256, 728 S.E.2d 140 (2012). None of these cases
involve a factual scenario analogous to the current matter—an employee being placed on
indefinite leave and being subject to punitive action without being provided with notice of
the allegations underlying the action and without being given a hearing on the issues
underlying the punitive action.
15
We note that this C.S.R. section applies explicitly to “West Virginia State Police,”
rather than to sheriff’s departments.
12
(Emphasis added).
In addition to the foregoing, another section of the “West Virginia State
Police Professional Standards Investigations Employee Rights” C.S.R. requires an
employee who is placed on “administrative leave” to receive notice of the general
allegations. 81 W. Va. C.S.R. § 81-10-10.1, -10.3.2, -10.3.3 provide, in relevant part:
10.1. This program provides a process for mandatory
psychological review of employees in situations where an
employee’s job performance or actions may be detrimental to
the State Police’s mission and cause the employee’s
psychological fitness for duty to be in question.
....
10.3.2. The Superintendent may place an employee involved in
a critical incident as defined by this rule or whose
psychological fitness for duty is in question on administrative
leave, with or without pay pursuant to State Police operating
policy and procedure. . . .
10.3.3. If a psychological fitness for duty is considered
appropriate by the Superintendent, the employee shall be
notified as required for internal or administrative
investigations. The notification shall include a statement of the
general circumstances that prompted the action, and the
appointment time, date, and location of the meeting with a
psychotherapist designated by the State Police. . . .
(Emphasis added).
In the present case, Deputy Brown was placed on “paid administrative leave”
without any statement describing the general allegations against him and with only a vague
reference to a future meeting with an investigator (Corporal Ferrell “will contact you in the
near future to schedule all necessary interviews.”). Corporal Ferrell never contacted or
interviewed Deputy Brown. Further, the West Virginia Code of State Regulations cited by
Sheriff Porter only permits an employee to be “temporarily relieve[d] . . . from duty
pending further investigation.” 81 W.Va. C.S.R. § 81-10-10.72. The undisputed facts of
this case demonstrate that Deputy Brown was not “temporarily relieved” from duty. After
spending five months on “paid administrative leave” with no notice of the charges against
him and with no timeframe of how long the “paid administrative leave” would last, Deputy
Brown filed his first request for a hearing before the Commission. Crucially, Deputy
Brown did not receive notice of the charges against him until he instituted his mandamus
action against Sheriff Porter. We find no language in the state regulations or in W. Va.
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Code § 7-14C-1 et seq. that authorizes the type of leave Sheriff Porter characterized as
“paid administrative leave”—indefinite leave, accompanied by numerous conditions
including loss of secondary employment, without notice of the general allegations
underlying such leave. Therefore, we reject Sheriff Porter’s argument that the state
regulations and prior rulings from this Court permit the indefinite “paid administrative
leave” that was imposed on Deputy Brown. We agree with the circuit court that “the leave
imposed on [Deputy Brown] is tantamount to suspension and placing [him] on such leave
for many months certainly became excessive and punitive.”
Based on our conclusion that the paid administrative leave in this case was
tantamount to a suspension, we also reject Sheriff Porter’s argument that the attorney fee
award was improper because the circuit court lacked subject matter jurisdiction. This Court
has stated that “[j]urisdiction implies or imports the power of the court . . .” Syl. Pt. 9, in
part, Hinerman v. Daily Gazette Co., 188 W.Va. 157, 423 S.E.2d 560 (1992). “Jurisdiction
is not related to the rights of the parties but concerns the power to decide a justiciable
controversy between the parties.” Hanson v. Bd. of Educ. of the Cty. of Mineral, 198 W.Va.
6, 11 n.3, 479 S.E.2d 305, 310 n.3 (1996). Further,
[j]urisdiction consists of two elements. One of these elements
is jurisdiction of the subject matter and the other is jurisdiction
of the person. Jurisdiction of the subject matter must exist as a
matter of law. Jurisdiction of the person may be conferred by
consent of the parties or the lack of such jurisdiction may be
waived.
Syl. Pt. 4, W.Va. Secondary Sch. Activities Comm’n v. Wagner, 143 W.Va. 508, 102 S.E.2d
901 (1958). In syllabus point 3 of State ex rel. Smith v. Bosworth, 145 W.Va. 753, 117
S.E.2d 610 (1960), this Court held “[t]o enable a court to hear and determine an action, suit
or other proceeding it must have jurisdiction of the subject matter and jurisdiction of the
parties; both are necessary and the absence of either is fatal to its jurisdiction.”16
We need not linger on this issue. Sheriff Porter’s jurisdiction argument is
premised entirely on her contention that the indefinite “paid administrative leave” did not
constitute a suspension, and that none of the conditions imposed on Deputy Brown
constituted “punitive action.” Because we agree with the circuit court that Deputy Brown
was suspended and that some of the conditions imposed on him were punitive, Sheriff
Porter’s jurisdiction argument fails.
16
A circuit court has jurisdiction to hear a mandamus action brought by a deputy
invoking his or her due process rights under W. Va. Code § 7-14C-1 et seq. See Matheny
v. Scolapio, 240 W. Va. 30, 807 S.E.2d 278 (2017).
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Finally, we briefly address the circuit court’s award of attorney’s fees and
costs. This Court has held that attorney’s fees and costs may be recovered in a mandamus
action. “Costs and attorney’s fees may be awarded in mandamus proceedings involving
public officials because citizens should not have to resort to lawsuits to force government
officials to perform their legally prescribed nondiscretionary duties.” Syl. Pt. 1, State ex
rel. W. Va. Highlands Conservancy, Inc. v. W. Va. Div. of Envtl. Prot., 193 W.Va. 650, 458
S.E.2d 88 (1995). Additionally, in syllabus point 2 of Highlands Conservancy, this Court
held:
Attorney’s fees may be awarded to a prevailing
petitioner in a mandamus action in two general contexts: (1)
where a public official has deliberately and knowingly refused
to exercise a clear legal duty, and (2) where a public official
has failed to exercise a clear legal duty, although the failure
was not the result of a decision to knowingly disregard a legal
command.
Id.
In the present case, the circuit court’s order includes a detailed discussion of
the facts underlying this matter, as well as an in-depth recitation of our case law on
attorney’s fees. Based on our finding that Deputy Brown did not receive the due process
protections that he was entitled to under W. Va. Code § 7-14C-1 et seq., we agree with the
circuit court’s conclusion that Deputy Brown was entitled to an award of attorney’s fees
and costs incurred in the course of bringing the mandamus action.
Therefore, we affirm the circuit court’s July 26, 2018, order awarding Deputy
Brown $8,136 in attorney’s fees and $44.22 in costs.
Affirmed.
ISSUED: November 13, 2019
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
15