White v. Barill

557 S.E.2d 374, 210 W. Va. 320, 18 I.E.R. Cas. (BNA) 797, 2001 W. Va. LEXIS 164
CourtWest Virginia Supreme Court
DecidedDecember 3, 2001
DocketNo. 29100
StatusPublished
Cited by5 cases

This text of 557 S.E.2d 374 (White v. Barill) 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
White v. Barill, 557 S.E.2d 374, 210 W. Va. 320, 18 I.E.R. Cas. (BNA) 797, 2001 W. Va. LEXIS 164 (W. Va. 2001).

Opinion

PER CURIAM:

This case is before this Court upon appeal of a final order of the Circuit Court of Mo-nongalia County entered on July 6, 2000. In that order, the circuit court denied a motion filed by the appellant and petitioner below, Gary White (hereinafter “White”), to alter or amend the court’s May 15, 2000 order which upheld a decision of the appellee and respondent below, Anthony P. Barill, Sheriff of Monongalia County (hereinafter “Sheriff Ba-rill”) terminating White’s employment as a correctional officer at the Monongalia County Jail. Although the circuit court found that White’s procedural due process rights were violated because he was not afforded a pre-termination hearing, the circuit court limited White’s remedy to back pay and benefits from the date of his termination, July 27, 1999 to September 9, 1999, the date of his post-termination hearing conducted by the Monongalia County Correctional Officers’ Civil Service Commission.

In this appeal, White contends that the circuit court erred by not finding that the denial of a pre-termination hearing required his reinstatement. Alternatively, White claims that the circuit court should have remanded the matter to the Commission for consideration of his due process claims. This Court has before it, the petition for appeal, the entire record, and the briefs of counsel. For the reasons set forth below, the final order of the Circuit Court of Monongalia County is reversed, and this ease is remanded to the circuit court for further proceedings consistent with this opinion.

I.

On July 27, 1999, White, who had been employed by the Monongalia County Sheriffs Department since 1991, was discharged from his position as a correctional officer for harassing Alex Komons, a state prisoner (hereinafter “Komons”).1 Komons first reported the harassment in June 1999 to jail administrator, Tammy Belldina (hereinafter “Belldina”). Belldina did not immediately investigate the allegations, but did instruct Komons to keep a diary and record any further acts of harassment by White.

Sometime in July 1999, Sheriff Barill became aware of the allegations made by Ko-mons. He instructed Belldina to investigate the allegations and directed Chief Deputy Robert McCauley (hereinafter “Chief Deputy McCauley”) to act as a reviewing officer in the matter. According to White, he was informed of the allegations made by Komons on July 27, 1999 by Chief Deputy McCauley. [322]*322White claims that Chief Deputy McCauley gave him the choice of admitting that the allegations were true and accepting a 30-day suspension without pay plus a reduction in rank or denying the charges and being immediately terminated. White further claims that he was not given the reasons for his discharge in writing;2 not allowed to review written statements concerning the allegations that were collected by Belldina; not permitted to confront any person who made statements against him; and not given the opportunity to telephone an attorney. White denied the charges against him and was immediately terminated.

Thereafter, White requested a hearing before the Monongalia Correctional Officers’ Civil Service Commission. The hearing was granted and began on September 9, 1999, at which time White requested that the Commission address his procedural due process rights. However, the Commission determined that it was without authority to address that issue. After four days of testimony, the Commission sustained White’s termination.

White then filed an appeal in the Circuit Court of Monongalia County. He argued, inter alia, that he had a constitutionally protected property interest in continued, uninterrupted employment as a correctional officer and that such property interest required the application of certain procedural due process safeguards to protect him against arbitrary discharge. Specifically, White asserted that he was entitled to pre-discharge notice and a pre-termination hearing to refute the allegations of improper conduct.

After hearing oral argument on the matter, the circuit court issued an order on May 15, 2000, finding that White had been denied procedural due process since he was not afforded a pre-termination hearing. However, the court further found that such a hearing would not have prevented White’s dismissal and thus, upheld the Commission’s decision to sustain Sheriff Barill’s termination of White’s employment. White’s remedy for the violation of his due process rights was limited to the recovery of back pay and benefits for the period between the effective date of his dismissal, July 27, 1999, and the date of his hearing before the Commission, September 9,1999.

On July 6, 2000, the circuit court denied White’s motion to alter or amend its May 15, 2000 order finding, contrary to White’s assertions, that any procedural due process defects had been remedied by the extensive hearing held before the Commission. This appeal followed.

II.

As discussed above, White contends that the circuit court erred by not ordering his reinstatement after it determined that his procedural due process rights had been violated because he had not been afforded a pre-termination hearing. Alternatively, White argues that this case should be remanded to the Commission with instructions to address the various due process violations he suffered including lack of a formal written notice of the charges made by Komons; denial of the opportunity to rebut these charges and confront his accusers; refusal to allow him to contact an attorney; and failure to permit him to present evidence on his own behalf. The thrust of White’s argument is that the circuit court misinterpreted this Court’s holding in Fraley v. Civil Service Comm’n, 177 W.Va. 729, 356 S.E.2d 483 (1987). We agree.

Before discussing the circuit court’s application of Fraley, we first note that the circuit court properly determined that White’s procedural due process rights were violated because he was not afforded a pretermination hearing. This Court has previously acknowledged that correctional officers who are permanent civil service employees have a property interest arising out of the statutory entitlement to continued uninterrupted employment. Swiger v. Civil Service Comm’r, 179 W.Va. 133, 136, 365 S.E.2d 797, 800 (1987). See also Syllabus Point 4, Waite v. Civil Service Comm’n, 161 W.Va. 154, 241 S.E.2d 164 (1977) (“A State civil service classified employee has a property interest arising out of the statutory entitlement to contin[323]*323ued uninterrupted employment.”) This guaranteed property interest requires a pre-termination hearing. Swiger, 179 W.Va. at 136, 365 S.E.2d at 800.

As this Court explained in Syllabus Point 3 of Fraley: “The constitutional guarantee of procedural due process requires ‘ “some kind of hearing” prior to the discharge of an employee who has a constitutionally protected property interest in his employment.’ Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 [105 S.Ct.

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557 S.E.2d 374, 210 W. Va. 320, 18 I.E.R. Cas. (BNA) 797, 2001 W. Va. LEXIS 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-barill-wva-2001.