State High Court grants writ to Jefferson sheriff in deputy’s termination case

CHARLESTON – In spite of his recent guilty plea to civil rights violations, former Jefferson County Sheriff Robert “Bobby” Shirley can take consolation in a small legal victory in a former deputy’s pending wrongful termination case.

On Jan. 11, the day he tendered his resignation as part of plea agreement with the U.S. Attorney’s Office, the state Supreme Court voted unanimously not to rehear arguments in Shirley’s writ of prohibition against Jefferson Circuit Judge David Sanders and former JCSD Sgt. Michael T. Dodson. Three months earlier, the court in a memorandum opinion unanimously ruled Sanders abused his discretion a year ago in appointing members to pre-disciplinary hearing panel to properly consider Shirley’s 2009 firing of Dodson.

Fifteen months earlier the court remanded the case to Sanders after it ruled he erred in upholding the county Deputy Sheriff’s Civil Service Commission’s decision finding in Dodson’s favor since Shirley failed to follow state law in giving Dodson the required pre-disciplinary hearing.

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.

According to court records, Dodson, who first became a deputy in 2002, was fired on Jan. 6, 2009, following an investigation into an alleged romantic relationship with Cpl. Tracey Edwards, a detective. Dodson’s termination was among Shirley’s first acts after taking office in this first term as sheriff.

The investigation into Dodson’s relationship with Edwards started in June 2008. According to court records, he accused Edwards of improperly giving a suspect legal advice after she apparently told him his civil rights may have been violated following an unspecified incident on Allstadt Hill Road in Harpers Ferry.

In response to the complaint he filed against her, Edwards admitted to the relationship. The investigation alleged that on several occasions between 2005 and 2007, they had sex in Edwards’ cruiser, her office and a park near the sheriff’s office when either one or both were on duty.

After then-Sheriff Edward Boober informed him disciplinary action would be taken, Dodson requested in writing a pre-disciplinary hearing. A month before the Nov. 5, 2008, hearing, Boober asked that one of the panel members, Cpl. K. Boyce, be recused since he was the one who investigated Dodson’s allegations against Edwards.

According to court records, the panel, on the day of the hearing, granted Boober’s request to have Boyce recused. It adjourned the hearing, deciding not to hear the matter until the Jefferson County Deputy Sheriff’s Association appointed a replacement for Boyce.

DSA never appointed a replacement. After Shirley fired him, Dodson appealed the decision to the Commission, which upheld it.

In a unanimous two-page memorandum opinion, the court on Sept. 23, 2011, reversed Sanders’ ruling upholding the Commission’s decision saying state law is clear in “that a civil service police officer be afforded a predisciplinary hearing prior to his/her discharge from employment.” Along with reversing his decision, the court remanded the case back to Sanders with instructions Dodson be given a proper pre-disciplinary hearing.

After the case was remanded, on a date not specified, Shirley convened a hearing board. Before it could meet, Dodson filed an injunction alleging it was improperly constituted.

Dodson alleged various “improprieties” in the board’s membership that included, among other things, Shirley’s “undue influence over the DSA’s appointment of its representative to the board because of the involvement of the Sheriff’s administrative assistant in counting the DSA’s voting ballots and because of the department’s chief deputy’s involvement in the DSA’s vote.” Also, he maintained DSA had not held a formal meeting for the past five years.

After holding a hearing on Dodson’s injunction, Sanders asked both Shirley and Dodson to each provide him the names of five people they wanted to serve on the board. From those lists, Sanders chose three names each to comprise a six-member board.

When Sanders refused to allow him to select at least member as his representative, Shirley filed his writ with the court.

In its Oct. 19 opinion, the court said while the chief circuit judge has some discretion in appointing members to the board it is “only [emphasis in the original] ‘in the event one or more members of the board cannot be appointed as otherwise provided [by state law].’” Despite the fact, DSA hadn’t meet in over five years and Shirley’s administrative assistant aided in counting votes, the court found Dodson’s arguments unpersuasive they in any way tainted the process in which DSA selected a board member.

“There is no evidence that the DSA,” the court said, “as an organization, or that its voting process, or that the help it received from the Sheriff’s administrative assistant, had any improper effect on the DSA’s choice of its representative on the board.”

“ Thus, it is clear that the circuit court was incorrect when it determined that the DSA was unable to appoint a member of the board.”

West Virginia Supreme Court of Appeals, case numbers 35699 (Dodson administrative appeal) and 12-0586 (Shirley writ of prohibition)

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