Johnson v. Ashley

441 S.E.2d 399, 190 W. Va. 678, 1994 W. Va. LEXIS 2
CourtWest Virginia Supreme Court
DecidedFebruary 18, 1994
DocketNo. 21969
StatusPublished
Cited by2 cases

This text of 441 S.E.2d 399 (Johnson v. Ashley) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Ashley, 441 S.E.2d 399, 190 W. Va. 678, 1994 W. Va. LEXIS 2 (W. Va. 1994).

Opinion

PER CURIAM:

This appeal is from an order of the Circuit Court of Kanawha County, dated June 15, 1993, which reversed a ruling of the Kana-wha County Deputy Sheriffs Civil Service Commission (Commission). The circuit court found that the Commission was clearly wrong in upholding the termination of Deputy Steven A. Johnson of the Kanawha County [680]*680Sheriffs Department (Department), for off-duty misconduct. Sheriff Art Ashley contends that he had good cause for firing Deputy Johnson and that substantial evidence supports the decision of the Commission. We agree, and we reverse the judgment of the circuit court.

I.

The facts of this case are largely undisputed. Deputy Johnson was involved in an extramarital affair with Sherry Atha that lasted a few months. His wife found out about the affair,, and, on March 16, 1989, she went to see Ms. Atha in Boone County. Mrs. Johnson asked Ms. Atha to follow her back to the Johnson home to confront Deputy Johnson.

Deputy Johnson arrived at the home to find the two women standing in the yard. Mrs. Johnson confronted him about the affair. He told her that the affair was over and asked Ms. Atha to leave them alone. When she did not leave, Deputy Johnson lost control. He became verbally abusive to the women. Mrs. Johnson took refuge in the family truck. Ms. Atha got into her car. Deputy Johnson smashed the window out of the truck with his fists and told his wife to get into the house. Mrs. Johnson called a relative who then contacted 9-1-1 for help.

Deputy Johnson then proceeded to kick and hit Ms. Atha’s car. He jumped on the hood of the ear and smashed the windows out.1 He pulled Ms. Atha from her car through the driver’s side door window. Deputy Johnson then attacked Ms. Atha. He beat her with his fists, choked and kicked her.2

The Department dispatched two deputies to the Johnson home to investigate. Deputy Johnson was called in to the Department later that same day to give his side of the story. He told Chief Deputy Larry Herald and Lieutenant Duane E. Drennan that he broke off the affair with Ms. Atha, but she had been harassing him and his family.

On March 17, 1989, Deputy Johnson was suspended with pay. An internal investigation of the incident was conducted. Deputy Johnson was evaluated by Dr. Ralph Smith, a psychiatrist. Dr. Smith tendered a report on April 7, 1989. After receiving information from Deputy Johnson’s personnel file, Dr. Smith revised his evaluation by report dated May 15, 1989. The report states, in part:

“The review of the 201 file paints a somewhat different picture of Deputy Johnson than I obtained from the single interview and review of the investigation of the March 1989 incident. He now emerges as a man who over the last decade has had difficulty controlling his temper in a variety of contexts, whose problems in his domestic life have spilled over into multiple episodes requiring internal affairs investigations. ...
“With the clear knowledge of Deputy Johnson’s previous violent episodes and his inability to contain them, his lack of judgment in not seeking any help for obvious problems he has had for a decade and his poor response to internal affairs, Captain Marcum and the Chiefs counseling and the disciplinary measures taken against him, it is now my opinion that Deputy Johnson is at a moderate to high risk for having continued problems. My prediction is that if he is retained as a deputy sheriff, ten years hence his 201 file will be twice as thick and the Department will have committed thousands of dollars more and the use of scarce resources to investigate future incidents[.]”

The Kanawha County Sheriffs Department Evaluation Board unanimously recommended that Deputy Johnson be terminated. By Special Order Number 4, dated July 12, 1989, Deputy Johnson was advised that his employment was being terminated on the grounds that on March 16, 1989, he violated West Virginia law and department rules and regulations. The four-page document details the various laws and regulations which were violated by Deputy Johnson. He requested a hearing before the Commission pursuant to W.Va.Code, 7-14-17 (1981).

[681]*681A hearing was conducted on October 3, 1990. On November 16, 1990, the Commission issued its findings concluding that Deputy Johnson’s “conduct on March 16, 1989, to be of such a violent and outrageous character to amount to misconduct of a substantial nature directly affecting the rights and interests of the public and to be damaging to the rights and interests of the public.” Accordingly, the Commission ruled that there was just cause for Deputy Johnson’s dismissal.

Deputy Johnson appealed this ruling to the circuit court. By order dated June 16, 1993, the circuit court ruled that the Commission’s findings were clearly wrong and should be reversed. The circuit court found that an isolated incident of aggression did not constitute “misconduct of a substantial nature directly affecting the rights and interests of the public” as required by W.Va.Code, 7-14-17. The court disapproved of the way the matter was investigated by the Department and found that the Department should have provided counseling to Deputy Johnson. The circuit court held that a thirty-day suspension was sufficient punishment and ordered Deputy Johnson reinstated. The case was remanded back to the Commission with directions to calculate back pay. He also was awarded attorney’s fees and court costs. It is from this order that Sheriff Ashley now appeals.

II.

The standard of review applicable in this case is set forth in Syllabus Point 1 of State ex rel. Ashley v. Civil Service Commission for Deputy Sheriffs of Kanawha Co., 183 W.Va. 364, 395 S.E.2d 787 (1990):

“ ‘A final order of a police civil service commission based upon a finding of fact will not be reversed by a circuit court upon appeal unless it is clearly wrong or is based upon a mistake of law.’ Syllabus point 1, Appeal of Prezkop, 154 W.Va. 759, 179 S.E.2d 331 (1971).”

This standard was articulated in the context of the municipal police officers’ civil service system, but is also equally applicable to cases arising under the deputy sheriffs’ civil service system. See Mangum v. Lambert, 183 W.Va. 184, 394 S.E.2d 879 (1990); Roberts v. Greiner, 182 W.Va. 137, 386 S.E.2d 504 (1989); McDonald v. Young, 173 W.Va. 168, 313 S.E.2d 445 (1984); Kendrick v. Johnson, 167 W.Va. 269, 279 S.E.2d 646 (1981).

The principal issue on appeal is whether the circuit court erred in ruling that the Commission’s final order was clearly wrong.3 Syllabus Point 2 of State ex rel. Ashley v. Civil Service Commission for Deputy Sheriffs of Kanawha Co., supra, states:

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Related

Burgess v. Moore
685 S.E.2d 685 (West Virginia Supreme Court, 2009)
Mangus v. Ashley
487 S.E.2d 309 (West Virginia Supreme Court, 1997)

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Bluebook (online)
441 S.E.2d 399, 190 W. Va. 678, 1994 W. Va. LEXIS 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-ashley-wva-1994.