Mason v. City of Welch

375 S.E.2d 572, 180 W. Va. 101, 1988 W. Va. LEXIS 151
CourtWest Virginia Supreme Court
DecidedNovember 21, 1988
DocketNo. 17992
StatusPublished

This text of 375 S.E.2d 572 (Mason v. City of Welch) 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
Mason v. City of Welch, 375 S.E.2d 572, 180 W. Va. 101, 1988 W. Va. LEXIS 151 (W. Va. 1988).

Opinion

McHUGH, Chief Justice:

This appeal involving the Police Civil [102]*102Service Act1 raises the question of whether parking-meter attendants are covered by such Act. We conclude they are not. Believing this question of law was incorrectly decided by the circuit court, we reverse.

I

The appellant, the City of Welch, West Virginia, has employed appellee, Jeannette Mason, and appellee, Betty Francisco, as parking-meter attendants, referred to in the record as “meter maids,” since May, 1972 and January, 1974, respectively. At all relevant times the appellees were supervised by the appellant’s chief of police, and the appellees’ compensation was paid from funds allocated to the appellant’s police department. The appellees’ primary duty as parking-meter attendants has been to issue citations for illegal parking occurring on the streets of the city or on city parking lots, or occasionally, in the city parking building.2 The appellees have thus performed a limited police function of enforcing the city’s parking and traffic ordinances.3

The appellees direct traffic in the city on the first two or three days of each month and at other times when needed, such as when there are parades, accidents, floods or other problems which cause traffic congestion. They collect money from the parking meters; they provide general assistance to citizens, such as assisting persons whose keys are locked inside their vehicles; and they provide other police support activities as needed. For example, they have o'ccasionally filled in as dispatchers for the police department. They have not, however, performed dispatching work since November, 1984. On a couple of occasions they have been asked to search female suspects because the City of Welch during all relevant times had no female police officers or police matrons.

The appellees wear hats, uniforms, overcoats, patches and badges containing the inscriptions, “City of Welch Police Department” or “Welch Police Officer.” At the time they were hired the appellees were administered an oath in the same manner as city police officers.

On the other hand, the appellees have never been granted nor have they exercised general law enforcement powers. They do not have the power to arrest, even for parking violations, and they do not carry a deadly weapon.4 They have not been trained and certified as police officers, as [103]*103required since 1981 by W. Va. Code, 30-29-1 to -9, as amended. They never applied to be “grandfathered in,” that is, they never applied within ninety days after July 9, 1981, to be certified as a “law-enforcement officer” based upon at least five years of experience prior to application in 1981, as required by W.Va.Code, 30-29-5(d) [1983].

In July, 1986, city officials, in light of the financial condition of the city, determined that personnel layoffs would be made in the police and fire departments. The ap-pellees were notified at that time that they were discharged from employment. At the time of their discharge the appellees had more job seniority than any of the police officers who were members of the city’s police department.

Thereafter the appellees requested a hearing before the city’s police civil service commission (the “PCSC”).5 After an evi-dentiary hearing the PCSC found that the city had “substantially complied” with W.Va.Code, 8-14-5a [1971], thereby appointing the appellees as “special parking lot or parking building police officers” and concluded that, as such officers, the appel-lees under that statute expressly did not come within the police civil service provisions.6 The PCSC therefore upheld the appellees’ discharge.

The appellees appealed to the Circuit Court of McDowell County. The circuit court reversed the PCSC on the legal question of whether the appellees were “special parking lot or parking building police officers” exempt from police civil service coverage. The circuit court held they were not, as there was no evidence of an ordinance establishing such positions in the city (ordinance records had been burned in a 1979 fire), and the statute requires the “sole” duties of such special parking lot or parking building police officers to be the enforcement of ordinances upon or within municipal parking lots or parking buildings, while the appellees’ duties were more extensive, including enforcement of parking ordinances on the city streets and traffic direction on such streets. The circuit court ordered reinstatement of the appel-[104]*104lees, with full back pay, and refused to consider the question of mitigation of damages.

II

Rather than being governed by W.Va. Code, 8-14-5a [1971], on special parking lot or parking building police officers, the question of coverage of parking-meter attendants under the Police Civil Service Act is governed by W.Va.Code, 8-14-6 [1969], which, in the second paragraph thereof, defines “member of a paid police department,” for purposes of such Act. A “member of a paid police department” means

any individual employed in a paid police department who is clothed with the police power of the State in being authorized to carry deadly weapons, make arrests, enforce traffic and other municipal ordinances, issue summons for violations of traffic and other municipal ordinances, and perform other duties which are within the scope of active, general law enforcement.

(emphasis added) This statutory definition, added in 1963, is consistent with this Court’s restrictive definition of “other employees of said police departments,” in Parkins v. Londeree, 146 W.Va. 1051, 124 S.E.2d 471 (1962).

In Parkins the question before this Court was whether parking-meter attendants were covered by the Police Civil Service Act as then worded. An argument was made that the following language of the 1937 predecessor to W. Va. Code, 8-14-23 [1969] indicated that parking-meter attendants were covered by such Act: “It is understood and intended by this act to furnish a complete and exclusive system for the appointment, promotion, reduction, removal and reinstatement of all officers, policemen or other employees of said police departments[.]” (emphasis added)7 This Court rejected that argument and held that parking-meter attendants did not come within the purview of the Police Civil Service Act. The Court concluded that the Act covered only those persons having powers and duties customarily performed by police officers, such as the right to carry deadly weapons and the right to arrest, neither of which power was possessed by the parking-meter attendants. 146 W.Va. at 1063, 124 S.E.2d at 478.

Parkins was also premised upon the rationale that the inclusion of parking-meter attendants under the Act was not warranted because it would be difficult to make a rational application of the promotion provisions of the Act; that is, parking-meter attendants do not fit into the statutory structure of grades or ranks of police officers for the purpose of promotion of such officers. Id., 146 W.Va. at 1060-61, 124 S.E.2d at 476. This rationale is still valid.

The current statutory definition of “member of a paid police department,” like Parkins,

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Related

Parkins v. Londeree
124 S.E.2d 471 (West Virginia Supreme Court, 1962)
Bays v. Police Civil Service Commission
364 S.E.2d 547 (West Virginia Supreme Court, 1988)
Commonwealth v. Beaver Falls City Council
366 A.2d 911 (Supreme Court of Pennsylvania, 1976)
State Ex Rel. Crouse v. Holdren
36 S.E.2d 481 (West Virginia Supreme Court, 1945)

Cite This Page — Counsel Stack

Bluebook (online)
375 S.E.2d 572, 180 W. Va. 101, 1988 W. Va. LEXIS 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mason-v-city-of-welch-wva-1988.