Horton v. South Charleston Fire Civil Service
Annotate this Case IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
September 1997 Term
_____________
No. 23894
_____________
HOLLIS B. HORTON,
Appellant
v.
THE SOUTH CHARLESTON FIRE
CIVIL SERVICE COMMISSION,
Appellee
_________________________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Lyne Ranson, Judge
Civil Action No. 94-MISC-908
AFFIRMED
_________________________________________________________________
Submitted: October 7, 1997
Filed: December 17, 1997
Michael R. Cline,
Esq. Carolyn
Atkinson, Esq.
Charleston, West Virginia
South
Charleston, West Virginia
Attorney for the
Appellant Attorney
for the Appellee
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS
"There
must be strict compliance with the provisions of the Civil
Service for Paid Fire Departments, W.Va.Code, 8-15-11 et seq.
[1987]." Syl. Pt. 2, Legg v. Smith, 181 W.Va. 796, 384 S.E.2d 833 (1989).
Per Curiam:See footnote 1
1
Mr. Hollis B.
Horton (hereinafter "Appellant") seeks reversal of a
March 22, 1995, order of the Circuit Court of Kanawha County
denying the Appellant's request for a writ of mandamus against
the South Charleston Fire Department. We find no reversible error
in the lower court's determination, and we affirm.
I.
The Appellant initiated the process of qualification for the position of entry- level firefighter for the City of South Charleston in the fall of 1993. Pursuant to West Virginia Code §§ 8-15-16 and 8-15-18 (1990)See footnote 2 2 , an applicant must pass a competitive
examination, a physical examination, and a psychological examination. Although the Appellant successfully advanced through the competitive and physical examinations, his psychological examination, administered by Dr. Ralph Smith and Dr. Rosemary Smith, revealed personality traits which resulted in the psychologists' refusal to recommend the Appellant as being eligible for appointment as a firefighter.See footnote 3 3 Based upon this evaluation, the
South Charleston Fire Civil Service Commission (hereinafter "Appellees") refused to certify the Appellant to the Mayor as being eligible for appointment, pursuant to West Virginia Code §§ 8-15-19.See footnote 4 4 A public hearing, pursuant to the Appellant's request, was held on
October 16, 1994, and the Appellant introduced the testimony
of a personally retained psychiatrist and various personality
witnesses.See footnote 5 5
By letter dated January 27, 1995, the Appellee notified the
Appellant that it affirmed its prior decision refusing to certify
the Appellant as eligible for appointment.
The Appellant
sought a writ of mandamus from the lower court by petition filed
on December 5, 1994. Finding itself without jurisdiction pursuant
to the explicit terms of the statutory framework, specifically
West Virginia Code § 8-15-19, the lower court refused to grant
the requested writ. The lower court reasoned that the statute
unambiguously precludes judicial review of a Fire Civil Service
Commission's refusal to certify a candidate. The Appellant now
seeks relief in this forum.
II.
In syllabus
point two of Legg v. Smith, 181 W.Va. 796, 384 S.E.2d 833 (1989),
we explained that "[t]here must be strict compliance with
the provisions of the Civil Service for Paid Fire Departments,
W.Va.Code, 8-15-11 et seq. [1987]." See also Syllabus Point
1, Meek v. Pugh, 186 W.Va. 609, 413 S.E.2d 666 (1991). In Daniels
v. McCulloch, 168 W.Va. 740, 285 S.E.2d 483 (1981), we upheld the
circuit court's ruling invalidating the promotions of two police
officers, reasoning that "[t]he civil service statute [for
police officers, West Virginia Code § 8-14-6, et seq.] should be
followed as closely as possible in order to carry out the intent
of the Legislature which enacted it." Id. at 745, 285 S.E.2d
at 486.
In Parsons v. Charleston Firefighters Civil Service Commission, 190 W.Va. 500, 438 S.E.2d 843 (1993), we recognized that the "establishment, powers and duties of fire companies and fire departments are provided for in W.Va.Code, 8-15-1, et seq." Id. at 502, 438 S.E.2d at 845. West Virginia Code § 8-15-15(1) (1990) directs that the "firemen's civil service commission ... shall ... [p]rescribe and enforce rules and regulations for carrying into effect the civil service provisions of this article." Likewise, West Virginia Code § 8-15-16 mandates that the commission "shall make rules and regulations providing for both competitive and medical examinations for appointments and promotions to all positions in
the paid fire department in such municipality, and for such
other matters as are necessary to carry out the purposes of the
civil service provisions in this article."
Strict
adherence to the provisions regarding the internal operations of
the Civil Service Commission compels the conclusion that the
Appellant is without remedy in this situation. The guiding
statute, West Virginia Code § 8-15-19, explicitly provides that
the determination of eligibility for appointment is not subject
to judicial review.See
footnote 6 6 The Appellant requested a public
hearing on the eligibility issue and was granted such hearing.
Thus, the Appellee fully complied with the statutory
requirements; it acted in accordance with the statute and
thereafter refused to certify the Appellant based upon a finding
that the Appellant lacked medical certification that he was free
from a mental disease or defect which could incapacitate him from
becoming a firefighter. We therefore affirm the decision of the
lower court in denying the Appellant's request for a writ of
mandamus.
Affirmed.
Footnote: 1 1 We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W. Va. 197, 201 n.4, 423 S.E.2d 600, 604 n.4. (1992) ("Per Curiam opinions ... are used to decide only the specific case before the Court; everything in a per curiam opinion beyond the syllabus point is merely obiter dicta .... Other courts, such as many of the United States Circuit Court of Appeals, have gone to non-published (not-to-be- cited) opinions to deal with similar cases. We do not have such a specific practice, but instead use published per curiam opinions. However, if rules of law or accepted ways of doing things are to be changed, then this Court will do so in a signed opinion, not a per curiam opinion.")
Footnote:
2 2
West Virginia Code § 8-15-16 provides as follows:
The firemen's civil service commission in each municipality shall make rules and regulations providing for both competitive and medical examinations for appointments and promotions to all positions in the paid fire department
in such municipality, and for such other
matters as are necessary to carry out the purposes of the civil
service provisions in this article. Any such commission shall
have the power and authority to require by rules and regulations
a physical fitness examination as a part of its competitive
examination or as a part of its medical examination: Provided,
That after the thirtieth day of June, one thousand nine hundred
eighty-one, the medical requirements for appointment to all
positions in the paid fire department in such municipality shall
include, but not be limited to, the medical requirements stated
in section sixteen, article twenty-two of this chapter. Due
notice of the contents of such rules and regulations and of any
modifications thereof shall be given, by mail, in due season, to
the appointing officer; and said rules and regulations and any
modifications thereof shall also be printed for public
distribution. All original appointments to any positions in a
paid fire department subject to the civil service provisions of
this article shall be for a probationary period of six months:
Provided, That at any time during the probationary period the
probationer may be discharged for just cause, in the manner
provided in section twenty-five of this article. If, at the close
of this probationary term, the conduct or capacity of the
probationer has not been satisfactory to the appointing officer,
the probationer shall be notified, in writing, that he will not
receive absolute appointment, whereupon his employment shall
cease; otherwise, his retention in the service shall be
equivalent to his final appointment.
West Virginia Code § 8-15-18 provides as
follows, emphasis supplied:
All
competitive examinations for appointments or promotions to all
positions shall be practical in their character, and shall relate
to such matters, and include such inquiries, as will fairly and
fully test the comparative merit and fitness of the individual or
individuals examined to discharge the duties of the employment
sought by him or them. All competitive examinations shall be open
to all applicants who have fulfilled the preliminary requirements
specified in the other civil service provisions of this article.
Adequate public notice of the date, time and place of every competitive examination, together with information as to the kind of position to be filled, shall be given at least one week prior to such competitive examination. The
said commission shall adopt reasonable rules
and regulations for permitting the presence of representatives of
the press at any such competitive examination. The commission
shall post, in a public place at its office, the eligible list,
containing the names and grades of those who have passed such
competitive examinations for positions in the paid fire
department, and shall indicate thereon such appointments as may
be made from said list.
All
applicants for appointment or promotion to any position in a
paid fire department who have passed the competitive examination
specified above shall, before being appointed or promoted,
undergo a medical examination which shall be conducted under the
supervision of a board composed of two doctors of medicine
appointed for such purpose by the mayor of the municipality. Such
board must certify that an applicant is free from any bodily or
mental defects, deformity or diseases which might incapacitate
him from the performance of the duties of the position desired
and is physically fit to perform such duties before said
applicant shall be appointed or promoted to any position.
Notwithstanding the first sentence of this paragraph, in the
event the commission deems it expedient, the medical examination
may be given prior to the competitive examination, and if the
medical examination is not passed as aforesaid, the applicant
shall not be admitted to the competitive examination.
Footnote: 3 3 The Appellant emphasizes language from West Virginia Code § 8-15-18, as quoted above, indicating that the examination is to be conducted under the supervision of a board composed of two doctors of medicine appointed by the mayor. In the present case, the examiners had no specific papers of appointment by the mayor. They had been requested
to perform the evaluation, but they had not been formally appointed. We are not persuaded by the Appellant's argument that the absence of formal appointment should invalidate the examinations of these individuals.
Footnote:
4 4
West Virginia Code § 8-15-19 provides as follows, emphasis
supplied:
The
commission may refuse to examine an applicant, or after
examination to certify as eligible one, who is found to lack any
of the established preliminary requirements for the examination
or position for which he applies; or who is physically so
disabled as to be rendered unfit for the performance of the
duties of the position desired; or who is addicted to the
habitual use of intoxicating liquors or drugs; or who has been
guilty of any crime or of infamous or notoriously disgraceful
conduct; or who has been dismissed from public service for
delinquency or misconduct; or who has made a false statement of
any material fact, or practiced or attempted to practice any
deception or fraud, in his application, in any such examination,
or in securing his eligibility; or who refuses to comply with the
rules and regulations of the commission.
If any applicant feels aggrieved by the action of the commission in refusing to examine him, or after an examination in refusing to certify him as an eligible, the commission shall, at the request of such applicant, appoint a date, time and place for a public hearing; at which time such applicant may appear, by himself or counsel, or both, and the commission shall then review its refusal to make such examination or certification, and testimony shall be taken. The commission shall subpoena, at the expense of the applicant, any competent witnesses requested by him. After such review, the commission shall file in its records the testimony taken, and shall again make a decision, which decision shall be final and not subject to judicial review, but under no circumstances shall the provisions of this article be construed, in the case of a refusal to examine an applicant for promotion or to certify an applicant as eligible for promotion, as depriving such applicant of his right to seek a writ
of mandamus, if the application for such writ is
made within twenty days from the date of the decision refusing to
examine or to certify him as eligible for promotion.
Footnote: 5 5 The Appellant introduced testimony from many firefighters who had worked personally and professionally with the Appellant. Dr. Jeffrey L. Harlow also testified that personality testing indicated that the Appellant possessed normal personality functioning.
Footnote: 6 6 The only exception to that directive involves that case of promotional decisions, in which mandamus may then lie, according to the specific terms of the statute.
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