McMillian v. Ashley
Annotate this Case
January 1995 Term
___________
No. 22340
___________
MARK L. McMILLIAN,
Plaintiff Below, Appellee,
v.
ARDEN ASHLEY, SHERIFF OF KANAWHA COUNTY,
IN PLACE OF DANNY JONES, FORMER
SHERIFF OF KANAWHA COUNTY,
Defendant Below, Respondent
AND
ARDEN D. ASHLEY, SHERIFF OF KANAWHA COUNTY,
Appellant,
v.
MARK McMILLIAN,
Appellee
_______________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable John L. Cummings, Special Judge
Civil Action No. 92-AA-325
REVERSED
_______________________________________________________
Submitted: January 17, 1995
Filed: March 3, 1995
James M. Cagle
Charleston, West Virginia
Attorney for the Appellee
Phillip Gaujot
Charleston, West Virginia
Attorney for the Appellant
JUDGE FOX delivered the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "A final order of a deputy sheriffs' civil service
commission, based upon findings not supported by the evidence, upon
findings contrary to the evidence, or upon a mistake of law, will
be reversed and set aside by this Court upon review." Syllabus
point 1, Mangum v. Lambert, 183 W.Va. 184, 394 S.E.2d 879 (1990).
2. "W.Va. Code, 7-14-17 (1981), requires that dismissal
of a deputy sheriff covered by civil service be for just cause,
which means misconduct of a substantial nature directly affecting
the rights and interests of the public, rather than upon trivial or
inconsequential matters, or mere technical violations of statute or
official duty without a wrongful intention." Syllabus point 2,
Mangum v. Lambert, 183 W.Va. 184, 394 S.E.2d 879 (1990).
3. "Seriously wrongful conduct by a civil service
employee can lead to dismissal even if it is not a technical
violation of any statute. The test is not whether the conduct
breaks a specific law, but rather whether it is potentially
damaging to the rights and interests of the public." Syllabus
point 5, Mangum v. Lambert, 183 W.Va. 184, 394 S.E.2d 879 (1990).
4. A deputy sheriff who takes an unofficial guest on an
extradition assignment, the purpose of which is to return a felony
fugitive to this State, needlessly and seriously endangers the public safety. Further, in doing so he unnecessarily subjects his
employer to an unlimited potential for liability. Such actions
constitute misconduct, and it is misconduct of a substantial nature
directly affecting the rights and interests of the public.
5. A deputy sheriff who takes an unofficial guest on an
official assignment and seeks reimbursement from public funds for
additional expenses occasioned thereby, violates the statutory law
of West Virginia. Such act is, by its very nature and for obvious
reasons, seriously wrongful conduct potentially damaging to the
rights and interests of the public, and justifies his dismissal.
Fox, Judge:See footnote 1
By special order dated 23 June 1987, Sheriff Danny Jones
of Kanawha County, West Virginia, terminated the employment of
Deputy Sheriff Mark L. McMillian. The Civil Service Commission for
Deputy Sheriffs for Kanawha County (Commission) reversed the
termination order and granted Deputy McMillian back pay and
attorney's fees. By an order dated 9 February 1994, the Circuit
Court of Kanawha County affirmed the Commission's ruling. Sheriff
Jones' successor, Sheriff Arden Ashley, appeals the circuit court's
order.
In this case we decide whether the Commission acted
properly when it ruled that Sheriff Jones lacked just cause for the
dismissal of Deputy McMillian.
Sheriff Jones based his termination of Deputy McMillian
on three separate incidents of alleged misconduct: (1) misconduct
relating to a May 1985 extradition trip to New Mexico to retrieve
a prisoner named Wolfe Winton; (2) misconduct relating to a March
1986 extradition trip to Florida to retrieve a prisoner named Leo Facemeyer; and (3) misconduct while serving as bailiff during the
13 June 1987 night session of the Kanawha County Magistrate Court.
Subsequent to his dismissal, Deputy McMillian requested
a hearing before the Commission pursuant to W.Va. Code § 7-14-
17(a).See footnote 2 A hearing was conducted, and a ruling favorable to Deputy
McMillian was issued by the Commission and subsequently affirmed by
the Circuit Court of Kanawha County. In Ashley v. McMillian, 184
W.Va. 590, 402 S.E.2d 259 (1991), this Court reversed and remanded
the matter for a de novo hearing before the Commission.See footnote 3
The matter was again heard by the Commission in six
sessions between 16 December 1991 and 15 May 1992. On 13 November
1992, the Commission handed down its findings and rulings through
its "Commission Order," a twenty-seven page document which was
signed by two commissioners.See footnote 4 Acknowledging the decision to be "a very close call," the Commission concluded the Sheriff ". . .
failed to demonstrate that Mr. McMillian acted . . . with a
dishonest intent." Further, ". . . absent dishonesty, we conclude
that Mr. McMillian's conduct, while not laudable, did not amount to
substantial misconduct affecting the rights and interests of the
public."
Sheriff Ashley, as successor to Sheriff Jones, appealed
this ruling to the circuit court. By order of 21 March 1994, Judge
John L. Cummings, sitting by designation on the Sixth Judicial
Circuit, ruled the Commission's findings were not clearly wrong and
affirmed the Commission's award of back pay and attorney's fees.
It is from this order that Sheriff Ashley now appeals.
The standard of review which guides appellate resolution
of the issues herein was announced in syllabus point 1 of Appeal of
Prezkop, 154 W.Va. 759, 179 S.E.2d 331 (1971), wherein it was
stated: "A final order of a police civil service commission based
upon a finding of fact will not be reversed . . . unless it is
clearly wrong or is based upon a mistake of law." (Emphasis
added.)
More recently, in Mangum v. Lambert, 183 W.Va. 184, 394 S.E.2d 879 (1990), this Court adopted the holding in Appeal of
Prezkop, supra, but further held in syllabus point 1:
A final order of the civil service
commission, based upon findings not supported by the evidence, upon findings contrary to the
evidence, or upon a mistake of law, will be
reversed and set aside by this Court upon
review. (Emphasis added.)
West Virginia Code § 7-14-17 permits a sheriff to
discharge a protected deputy only for "just cause."See footnote 5 As previously
indicated, the issue here on appeal is whether the circuit court
and the Commission erred in ruling there was no just cause for
Deputy McMillian's dismissal.
In Johnson v. City of Welch, 182 W.Va. 410, 388 S.E.2d 284, 287 (1989), this Court held as follows:
Just cause has been defined as a substantial
cause "which specially relates to and affects
the administration of the office, and must be
restricted to something of a substantial
nature directly affecting the rights and
interest of the public. An officer should not
be removed from office for matters which are
trivial, inconsequential, or hypothetical, or
for mere technical violations of statute or
official duty without wrongful intention." 67
C.J.S. Officers § 120b (1936). See also City
of Logan v. Dingess, 161 W.Va. 377, 381, 242 S.E.2d 473, 475 (1978); Thurmond v. Steele,
159 W.Va. 630, 225 S.E.2d 210 (1976); Guine v.
Civil Service Commission, 149 W.Va. 461, 141 S.E.2d 364 (1965).
In syllabus point 2 of Mangum v. Lambert, 183 W.Va. 184,
394 S.E.2d 879 (1990), we adopted the above principles and applied
them to deputies:
W.Va. Code 7-14-17 (1981), requires that
dismissal of a deputy sheriff covered by civil
service be for just cause, which means
misconduct of a substantial nature directly
affecting the rights and interests of the
public, rather than upon trivial or
inconsequential matters, or mere technical
violations of statute or official duty without
a wrongful intention.
Further, in syllabus point 5 of Mangum we held that:
Seriously wrongful conduct by a civil
service employee can lead to dismissal even if
it is not a technical violation of any
statute. The test is not whether the conduct
breaks a specific law, but rather whether it
is potentially damaging to the rights and
interests of the public.
While Deputy McMillian's actions with regard to the May
1985 extradition trip and the 13 June 1987 night session of Kanawha
County Magistrate Court raise serious questions concerning his
conduct, we do not find it necessary to discuss those incidents
within the context of this opinion. Rather, we find Deputy
McMillian's actions and the circumstances surrounding the 1986
extradition trip amounted to misconduct justifying his dismissal
for just cause.
In March of 1986, Deputy McMillian was duly assigned to
proceed to the State of Florida to assume custody of and return Leo
Facemeyer, a felony fugitive, to West Virginia. Deputy McMillian
chose not to request the assistance of an additional law officer in
the performance of this assignment; rather, he was accompanied by
Ms. Tina Means, a secretary in the Kanawha County Sheriff's
Department. Deputy McMillian was married at the time, but not to
Ms. Means.
Upon arrival at the Tampa Airport in Florida, Deputy
McMillian elected to spend the first night, along with Ms. Means,
at the Don Ce Sar Beach Resort, a luxury resort in St. Petersburg.See footnote 6
The following night, they reposed at a Holiday Inn in Sebring,
Florida. The room rate for one person was $54.00, and the rate for
two people was $58.00.
Upon his return to West Virginia, Deputy McMillian sought
reimbursement for his personal expenses from his employer, Kanawha
County. Included within those personal expenses were the costs he
incurred in paying for certain of Ms. Means' meals, as well as the
additional costs he incurred in securing double occupancy lodging.
With regard to Ms. Means' participation in the
assignment, the Commission concluded that "the Sheriff has not
borne his burden of proof on the charge that it was improper for
Mr. McMillian to have allowed Tina Means to accompany him to
Florida." We disagree. The reasoning assigned for the
Commission's conclusion was (1) it had been done in the past, and
(2) there was no written or unwritten policy prohibiting it. We
would suggest that a pattern of wrongful conduct in the past is
never justification for its continuance; and some actions are so
patently improper that policies of prohibition, written or
otherwise, would be superfluous.
Deputy McMillian was charged with the custody of a felony
fugitive. Ms. Means was neither trained nor qualified to assist
him in this task, and her participation was not authorized by the
Sheriff's Department. Her status was, therefore, that of an
unofficial guest or voluntary social companion.
A deputy sheriff who takes an unofficial guest on an
extradition assignment, the purpose of which is to return a felony
fugitive to this State, needlessly and seriously endangers the
public safety. Further, in doing so he unnecessarily subjects his
employer to an unlimited potential for liability. Such actions
constitute misconduct, and it is misconduct of a substantial nature
directly affecting the rights and interests of the public.
As to the reimbursement of Deputy McMillian for Ms.
Means' expenses, the Commission found that the "practices of the
Sheriff's Department created an atmosphere in which an officer
could have concluded [rightly or wrongly] that it was not
inappropriate to seek reimbursement for [such] expenses . . .,"
adding that, after all, Ms. Means "was a departmental employee and
had provided minor assistance with the business of the extradition
trip." This Court is unable to determine what evidence, if any,
supported the finding of "minor assistance." Further, her status
as a departmental employee was of no significance at all, since she
had no official function to justify her presence.
The Commission ultimately determined that, with regard to
the reimbursement of Tina Means' expenses, ". . . we find that the
Sheriff has failed to demonstrate that Mr. McMillian acted (prior
to his dismissal) with a dishonest intent . . . ." Again, we
disagree with the Commission's findings.
A deputy sheriff who takes an unofficial guest on an
official assignment and then seeks reimbursement from public funds
for additional expenses occasioned thereby, violates the statutory
law of West Virginia.See footnote 7 Such act is, by its very nature and for
obvious reasons, seriously wrongful conduct potentially damaging to the rights and interests of the public, and justifies his
dismissal.
Within its own order, the Commission concedes that Deputy
McMillian and Tina Means were less than credible witnesses. On
page 21 of the order, the Commission notes: "[W]e find this
testimony [of McMillian and Means] to be neither consistent nor
believable . . . ." And on page 25, the Commission refers to
". . . the flavor of dishonesty that surrounds the issue of the
cost of Tina Means' involvement . . . ." Given these observations,
as well as the plain evidence of wrongdoing, we question how the
Commission reached its ultimate conclusion that Deputy McMillian's
actions did not rise to a level justifying his dismissal for just
cause.
In State ex rel. Ashley v. Civil Service Commission, 183
W.Va. 364, 395 S.E.2d 787, 791 (1990), this Court noted that ". . .
circumstances which have been considered just cause [for dismissal]
are involvement in activity which casts aspersions or doubt on a
law enforcement officer's honesty and integrity and which directly
affects the public's rights and interests." Clearly, Deputy
McMillian's actions herein cast aspersions and doubt as to his
honesty and integrity. Further, these actions directly affect the
public's rights and interests, including, but not limited to, the
right to public safety and the interest in fiscal integrity.
We find just cause for Deputy McMillian's dismissal by
Sheriff Jones, and conclude that the Commission and the circuit
court's rulings were both contrary to the evidence and clearly
wrong.
The judgment of the Circuit Court of Kanawha County is,
therefore, reversed.
Reversed.
Footnote: 1
Pursuant to an administrative order entered by this
Court on 18 November 1994, the Honorable Fred L. Fox, II, Judge of
the Sixteenth Judicial Circuit, was assigned to sit as a member of
the West Virginia Supreme Court of Appeals commencing 1 January
1995 and continuing through 31 March 1995, because of the physical
incapacity of Justice W. T. Brotherton, Jr. On 14 February 1995 a
subsequent administrative order extended this assignment until
further order of said Court. Footnote: 2
West Virginia Code § 7-14-17(a) (1993) provides, in
pertinent part:
If the deputy sought to be removed,
discharged, suspended or reduced shall demand
it, the civil service commission shall grant
him 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 . . . . Footnote: 3
The reversal was based upon the Commission's failure to
have a quorum present at each hearing.Footnote: 4
The third commissioner dissented and reserved the right
to file a dissenting opinion. No dissenting opinion was ever
filed.Footnote: 5
West Virginia Code § 7-14-17 (1993) provides, in
pertinent part:
On and after the effective date [July 1, 1971] of this article, no deputy sheriff of any county subject to the provisions of this article shall be removed, discharged, suspended or reduced in rank or pay except for just cause, which shall not be religious or political, except as provided in section fifteen [§ 7-14-15] of this article . . . .Footnote: 6 The Don Ce Sar Beach Resort is located twenty-eight miles southwest of the Tampa Airport, and the prisoner was incarcerated sixty-three miles in an easterly direction from the Tampa Airport.Footnote: 7 Specifically, reference is hereby made, but not limited to, one or both of the following statutes: W.Va. Code § 61-3-22 (1992) (Falsifying accounts) and W.Va. Code § 61-3-24 (1994 Cum. Sup.) (Obtaining money, property, and services by false pretenses).
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