Robert Matheny, Sheriff v. Lieutenant Gregory Scolapio

807 S.E.2d 278
West Virginia Supreme Court·Decided November 9, 2017·No. 16-0840·Published·Cited by 2 cases

Opinions

Davis, Justice:

The petitioner herein and plaintiff below, Robert Matheny,1 Sheriff of Harrison County ("Sheriff Matheny" or "the Sheriff"), appeals from an order entered August 9, 2016, by the Circuit Court of Harrison County. By that order, the circuit court granted mandamus relief to the respondent herein and defendant below, Lieutenant Gregory Scolapio ("Lieutenant Scolapio"), finding that he was entitled to receive a hearing before the Harrison County Civil Service Commission for Deputy Sheriffs ("Commission") regarding the Sheriff's decision to terminate his employment. On appeal to this Court, Sheriff Matheny assigns error to the circuit court's ruling, arguing that Lieutenant Scolapio was not entitled to receive a civil service hearing. Lieutenant Scolapio, through a cross-assignment of error, challenges the circuit court's decision to permit the Sheriff to intervene in the subject proceedings. Upon a review of the parties' arguments, the record designated for appellate consideration, and the pertinent authorities, we conclude that the circuit court correctly determined that Lieutenant Scolapio was entitled to receive both a pre-disciplinary hearing board hearing and a hearing before the Commission. We further find that it was proper to permit Sheriff Matheny to intervene in these proceedings. Accordingly, the August 9, 2016, order of the Circuit Court of Harrison County is affirmed.

I.

FACTUAL AND PROCEDURAL HISTORY

Lieutenant Scolapio was the supervisor in charge of the bailiff division and assisted *281with courthouse security for the Harrison County Family Court. On January 12, 2015, a circuit court juror brought a cooler containing his lunch into the courthouse and passed through courthouse security; thereafter, the cooler was left unattended in a hallway in the courthouse. Lieutenant Scolapio allegedly was requested to assist with determining whether the unattended cooler was a "suspicious package" and allegedly failed to respond to such request for assistance. Thereafter, the Sheriff initiated an internal investigation and issued a letter of suspension to Lieutenant Scolapio on January 20, 2015, which immediately suspended him with pay. The letter further proposed that Lieutenant Scolapio be terminated and provided notice of his right to a hearing before a hearing board in accordance with W. Va. Code § 7-14C-3 (1995) (Repl. Vol. 2015).2

Lieutenant Scolapio, by counsel, invoked his right to a pre-disciplinary hearing board hearing by letter dated January 21, 2015. The hearing was held on February 18, 2015. By decision dated February 26, 2015, the hearing board found "reasonable grounds" to terminate Lieutenant Scolapio's employment with the Harrison County Sheriff's Department. On February 26, 2015, Lieutenant Scolapio's status was changed from "suspended with pay" to "terminated."

On March 12, 2015, Lieutenant Scolapio filed a notice of appeal to the Commission, requesting a full, de novo, evidentiary hearing. By decision dated April 23, 2015, the Commission denied Lieutenant Scolapio's request for a hearing and stated that it would decide the matter based upon the record from the hearing board proceedings.

Lieutenant Scolapio then filed a petition for writ of mandamus in the Circuit Court of Harrison County on May 14, 2015, seeking to compel the Commission to provide him a de novo evidentiary hearing. By order entered August 9, 2016, the circuit court concluded that Lieutenant Scolapio was entitled to both a pre-disciplinary evidentiary hearing before the hearing board and a de novo evidentiary hearing before the Commission. Sheriff Matheny now appeals from the circuit court's decision3 to this Court.4

II.

STANDARD OF REVIEW

The case sub judice is before this Court on appeal from the circuit court's order granting mandamus relief to Lieutenant Scolapio. We previously have held that "[t]he standard of appellate review of a circuit court's order granting relief through the extraordinary writ of mandamus is de novo." Syl. pt. 1, Staten v. Dean, 195 W. Va. 57, 464 S.E.2d 576 (1995). Accord Syl. pt. 1, Harrison Cty. Comm'n v. Harrison Cty. Assessor, 222 W. Va. 25, 658 S.E.2d 555 (2008) ("A de novo standard of review applies to a circuit court's decision to grant or deny a writ of mandamus.").

Given that the circuit court awarded relief in mandamus, below, we also must consider whether the elements for granting a writ of mandamus have been satisfied. In this regard, we have held that

"[a] writ of mandamus will not issue unless three elements coexist-(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence *282of another adequate remedy." Syllabus Point 1, State ex rel. Billy Ray C. v. Skaff, 190 W. Va. 504, 438 S.E.2d 847 (1993) ; Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969).

Syl. pt. 2, Staten v. Dean, 195 W. Va. 57, 464 S.E.2d 576. Accord Syl. pt. 2, Myers v. Barte, 167 W. Va. 194, 279 S.E.2d 406 (1981) ("To invoke mandamus the relator must show (1) a clear right to the relief sought; (2) a legal duty on the part of the respondent to do the thing relator seeks; and (3) the absence of another adequate remedy.").

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Robert Matheny, Sheriff v. Lieutenant Gregory Scolapio, 807 S.E.2d 278 (W. Va. 2017).

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