POINT PLEASANT – Finding that he was not afforded the opportunity of a pre-disciplinary hearing as required by state law, a judge has reversed a civil service panel's decision upholding the termination of a Mason County sheriff's deputy.
Judge Thomas C. Evans III ruled that the county Deputy Sheriff's Civil Service Commission erred in affirming Sheriff David Anthony II's decision firing Robert H. Glenn earlier this year. In his Dec. 8 order, Evans said the state Supreme Court made clear in a 2009 decision that prior to taking any disciplinary action, especially termination, against a deputy, the sheriff is duty bound to provide him or her a hearing prior to the case going before the Commission.
"The Court finds Appellant [Glenn] was denied his statutory right to notice of a pre-disciplinary hearing under W. Va. Code §7-14C-3," Evans said in his ruling.
"No opinion is here provided regarding the substantive merit of the disciplinary action taken by the Respondent Sheriff."
According to court records, Anthony fired Glenn, a five-year Department veteran, on March 25 two weeks after he was accused of making an inappropriate comment about Hannan High School student's T-shirt. On March 11, Glenn reportedly whispered to Cade McCoy the Hooter's T-shit Kelsey Williams was wearing that day should've said "mosquito bites."
At the time, Glenn was working as a school resource officer at HHS. A week after he made the alleged comment, which was relayed to Anthony by the principal, Glenn was placed on administrative leave.
Following a hearing on April 11, the Commission on May 20 by a 2-0 vote affirmed Anthony's decision to fire Glenn. Commissioners Bob R. Powers and Matt Musgrave found just cause for the termination while Commissioner David K. "Cheyenne" Simpson was not present for the hearing.
In his appeal to Mason Circuit Court, Glenn asked his termination be reversed on the grounds Anthony's decision to terminate him was too harsh as that was first time he'd ever had disciplinary action brought against him. Also, Glenn argued Anthony's decision was flawed as he neither provided him notice of or the actual pre-disciplinary hearing.
According to court records, Anthony during the April 11 hearing before the Commission, did not contest the fact he didn't provide Glenn a pre-disciplinary hearing. The reason was that he had yet to get one approved.
In its May 20 ruling, the Commission made note of Anthony's failure to get approval for a hearing board, but said it was irrelevant as "Glenn failed to request a pre-disciplinary hearing as required by law."
However, Evans took issue with that logic. In citing the Supreme Court's decision in Burgess v. Moore, where the Court ultimately reversed Raleigh County Sheriff Daniel W. Moore's demotion of Cpl. Randy Burgess, Evans said the "statutory language at issue herein is plain and clearly requires that a deputy sheriff facing discipline receive notice of his/her entitlement to a predisciplinary hearing, and that such a hearing be provided unless one of the specified disciplinary actions has already been taken against the deputy sheriff facing discipline."
Also, Evans found the Commission erred in its interpretation of state law regarding notice of a pre-disciplinary hearing. Citing again the Burgess decision, Evans said the duty to provide notice is clearly with the sheriff.
"Appellee [Anthony] also contends that Appellant had the duty to request a pre-disciplinary hearing," Evans said. "This is completely adverse to the statutory language of W. Va. Code § 7-14C-3."
"The Court held that notice from the Sheriff's Department was required; the Court did not hold that the affected deputy had to request the hearing."
Glenn's case was aided by the Court's decision in a similar case from Jefferson County. In a Sept. 23 memorandum opinion, the Court unanimously reversed Judge David Sanders' ruling upholding Sheriff Robert Shirley's 2009 decision to terminate Sgt. Michael T. Dodson.
Memorandum opinions are issued by the Court in cases that would not be significantly aided by oral arguments, and present no new or significant questions of law.
Following an investigation he had a romantic relationship with Cpl. Tracey Edwards, a Sheriff's detective, and testified falsely about it, newly elected Sheriff Robert Shirley fired Dodson on Jan. 6, 2009. Though outgoing Sheriff Everett Boober did provide Dodson a pre-disciplinary hearing on Nov. 5, 2008, it was postponed because one of the members of the panel participated in the investigation.
A replacement was never named, and a hearing was never rescheduled.
The Court citing Burgess said state law is clear "that a civil service police officer be afforded a predisciplinary hearing prior to his/her discharge from employment." In his ruling reversing the Commission's decision, Evans made no reference to the Dodson decision.
Along with reversing their decision, Evans remanded Glenn's case back to the Commission. What happens next remains unclear, however, given Anthony's own ethical dilemma.
On Nov. 11, Anthony, 42, was arrested, and charged on one count of wanton endangerment. According to the criminal complaint, Anthony, while intoxicated, was accused of firing a small caliber handgun over the head of his 13-year-old son the week before.
Records show he waived his preliminary hearing on Nov. 15 sending his case to the grand jury. Currently, he is free on $20,000 bond, and a patient at an undisclosed rehabilitation facility until February.
Since Anthony's arrest, Chief Deputy Jeff Fields has been acting as sheriff. When contacted, he referred calls to Point Pleasant attorney R. Michael Shaw, who represented the Anthony in Glenn's appeal.
When he was contacted, Shaw declined to comment except to say, "The case has been resolved."
Shaw is also representing Anthony on the wanton endangerment charge.
Following Anthony's arrest, the Mason County Commission has been conferring with Damon Morgan, the county prosecutor, on their options regarding Anthony, including a possible petition for removal from office prior to the conclusion of his term next December. He was first elected sheriff in 2008.
Mason Circuit Court case numbers 11-AA-95(Glenn appeal) and 11-B-87 (Anthony criminal)