Lester v. Summerfield

378 S.E.2d 293, 180 W. Va. 572, 1989 W. Va. LEXIS 9
CourtWest Virginia Supreme Court
DecidedFebruary 17, 1989
DocketNo. 18632
StatusPublished
Cited by2 cases

This text of 378 S.E.2d 293 (Lester v. Summerfield) 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
Lester v. Summerfield, 378 S.E.2d 293, 180 W. Va. 572, 1989 W. Va. LEXIS 9 (W. Va. 1989).

Opinion

MILLER, Justice:

W.Va.Code, 7-14-8, provides that a deputy sheriff who voluntarily terminates his employment may, within two years, apply for reappointment as a deputy. The issue here is the effect of such reappointment on a deputy’s seniority for purposes of layoff under W.Va.Code, 7-14-17(d).

I.

Respondent, Alan Workman, was first appointed as a Fayette County deputy sheriff on December 18, 1968. He voluntarily quit on July 15, 1981, to become chief of police in Montgomery, and was so employed for almost two years. On March 23, 1983, he requested to be reappointed as a deputy pursuant to W.Va.Code, 7-14-8. This request was approved by the deputy sheriff civil service commission on May 9, 1983. Deputy Workman’s appointment date was noted on the sheriff’s roster as May 15, 1983.

Respondent, James J. Smith, was a Fay-ette County deputy sheriff with over nineteen years of service. On February 2, 1988, he tendered his resignation to become a candidate for sheriff. Deputy Smith was defeated in the primary election and, on May 15, 1988, requested to be reappointed as a deputy. His request was approved by the commission and his appointment date was duly noted as June 16, 1988.

On July 1, 1988, the sheriff’s office reduced its staff by nine deputies due to budget constraints. As required by W.Va. Code, 7-14-17(d), the deputies were laid off in inverse order of their appointment. By letter dated June 23, 1988, Deputies Workman and Smith were advised that they were to be laid off.

On June 28, 1988, Deputy Workman filed a petition for a writ of prohibition in Fay-ette County Circuit Court. He contended in the petition that he “applied for and was reinstated ... as a Fayette County [deputy [sjheriff, pursuant to the provisions of W.Va.Code, 7-14-8.” He further contended that for purposes of layoff his date of appointment was December 18, 1968, his original date of hire, and that other less senior deputies must be laid off first.

The circuit court concluded that by virtue of his reappointment, Deputy Workman was restored to his previous seniority and that his attempted layoff was, therefore, unlawful. In its memorandum opinion, the court also noted that Deputy Smith was similarly situated and that the foregoing law was applicable to him as well. A writ of prohibition was issued on July 15, 1988, directed against the sheriff, to prevent the layoff of Deputies Workman and Smith.

Petitioners are members of a class of Fayette County deputy sheriffs who are subject to layoff if the court’s order is made operative. These deputies assert that the order is in contravention of W.Va. Code, 7-14-8, and, therefore, in excess of the court’s jurisdiction. They seek from this Court a writ to prohibit implementation of the order and to require the Fayette County sheriff to restore the most recent appointment dates of Deputies Workman and Smith. No one contends that prohibition is an improper remedy. See Kennedy v. State, 176 W.Va. 284, 342 S.E.2d 251 [574]*574(1986); Syllabus Point 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

II.

W.Va.Code, 7-14-1, et seq., sets out the civil service requirements for deputy sheriffs in counties with populations of 25,000 or more.1 Because of their length, we summarize the appointment procedures as detailed in those statutes. Applications for an original appointment as a deputy are filed with the deputy sheriff civil service commission in the appropriate county. Every applicant must submit to a competitive examination administered by the commission. W.Va.Code, 7-14-8. If an applicant successfully completes the examination, his name is placed on the commission’s “eligible list.” Applicants must also be examined by two physicians and be certified to be physically fit. W.Va.Code, 7-14-9.

When a vacancy occurs, the commission forwards to the sheriff the names of the applicants on the “eligible list” who received the three highest scores on its examination. The sheriff must make the appointment from the list provided by the commission. W.Va.Code, 7-14-11.2 The deputy so appointed is placed on probationary status for six months. If at the conclusion of the six-month probationary period the conduct of the deputy is deemed to be satisfactory, he receives a permanent appointment. W.Va.Code, 7-14-7.

At issue here is W.Va.Code, 7-14-8,3 which provides a procedure for reappointment of a former deputy. The procedure, referred to as “reinstatement,” may be invoked if the applicant: (1) was a deputy in the county, for a period of more than six months, within two years of the date of application for reappointment; (2) did not have charges of misconduct or misfeasance pending against him at the time of his departure; (3) resides in the county in which application is made; and (4) passes a medical examination. The decision whether to reappoint a former deputy is entirely discretionary, as the statute places “eligibility] for appointment by reinstatement in the discretion of the civil service commission[.]”

There are significant advantages that accrue to a former deputy who utilizes this procedure. For example, a deputy sheriff appointed by reinstatement need not submit to the commission’s competitive examination.4 Second, the appointment decision in such cases is made directly by the commission, and not by the sheriff. Finally, the reinstated deputy is not required to undergo a probationary period.

It appears that W.Va.Code, 7-14-8, reflects a legislative policy to encourage deputy sheriffs who terminate their employment to return to public service. The reason for this policy is manifest: a trained [575]*575deputy with prior field experience is a valuable asset to the county and additional costs in training him need not be incurred. W.Va.Code, 7-14-8, offers an incentive to apply for reinstatement by substantially easing the application process.

However, W.Va.Code, 7-14-8, does not operate to fully restore a deputy to his former status. A deputy who is appointed by reinstatement does not receive his prior rank, but rather “the lowest ... rank in the sheriff’s office above the probationers of the office.”5 Furthermore, this section does not speak to the deputy’s past service, but provides only for appointment by reinstatement. Even as to an original appointment, the statute does not offer any explanation of the importance or meaning of the date of appointment. W.Va.Code, 7-14-11.

It is only when reference is made to the layoff provisions in W.Va.Code, 7-14-17(d), that the purpose of the date of appointment is clearly revealed. This statute directs that layoffs are to be “accomplished by suspending the number desired in the inverse order of their appointment[.]”6 We see nothing in this section, nor in the reinstatement section, that suggests the legislature intended to allow reinstated deputies to utilize their original date of appointment.

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Cite This Page — Counsel Stack

Bluebook (online)
378 S.E.2d 293, 180 W. Va. 572, 1989 W. Va. LEXIS 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lester-v-summerfield-wva-1989.