Court's ruling in Jefferson deputy's termination could affect Berkeley case

MARTINSBURG – The state Supreme Court's recent decision in a Jefferson County deputy sheriff's termination may have an immediate implication for yet another similar case pending in the lower courts, this time in neighboring Berkeley County.

The Court on Sept. 23 reversed Jefferson Circuit Judge David Sanders' ruling affirming the county Civil Service Commission's decision upholding Sheriff Robert Shirley's firing of Sgt. Michael T. Dodson. In a two-page memorandum opinion, in which it cited its previous decision in the 2009 case of Burgess v. Moore, the Court said Dodson's termination was premature because Shirley did not provide him a pre-disciplinary hearing as required by state law.

Records show following an investigation into allegations he had a romantic relationship with Cpl. Tracey Edwards, a JCSD detective, former Sheriff Everett Boober in the waning days of his administration in late 2008 granted Dodson's request for a pre-disciplinary hearing. However, no sooner had the hearing convened than it adjourned due to a potential conflict in one of the panel members' participation in Dodson's investigation.

Shortly after taking office in 2009, Shirley fired Dodson without reconvening the pre-disciplinary panel.

The very day the Court issued its ruling in the Dodson case, Perry Shannon Layne, a former Berkeley County deputy sheriff filed a writ of mandamus against Sheriff Kenneth LeMaster, and the Berkeley County Commission in Berkeley Circuit Court. In his writ, Layne, a 4-year veteran with the Department, alleged LeMaster did not provide him a pre-disciplinary hearing before firing him in May prior to going on trial on allegations he sexually abused a woman on July 31, 2010, while on duty.

According to his writ, Layne was indicted on two counts of first-degree sexual abuse last October. Following the indictment, LeMaster, a Democrat who was elected sheriff in 2008 after serving 31 years as a deputy, including seven as chief deputy, placed Layne on administrative duty.

Six months later, LeMaster notified Layne he would need "to submit to an interrogation and a polygraph examination ... scheduled for May 10, 2011." However, on May 1, Layne notified LeMaster that he was asserting his "Garrity Rights" in refusing to submit to the interrogation and polygraph exam unless Berkeley County Prosecutor Pamela Jean Games-Neeley, who was handling Layne's case personally, agreed not to use anything against him at trial.

According to his writ, Layne was informed the next day
Games-Neely was refusing to grant him a waiver of immunity. When Layne again refused to speak with investigators, and submit to a polygraph, LeMaster fired him for insubordination.

Following his termination, Layne on May 3 requested a pre-disciplinary hearing. When LeMaster didn't respond by May 12, Layne made a second hearing request.

The next day, LeMaster responded to the second request setting May 19 as the hearing date. In his response, LeMaster gave Layne the option to continue the hearing.

According to his writ, Layne on May 16 made a request for a continuance. When LeMaster did not respond, Layne still showed for the previously scheduled May 19 hearing.

However, neither LeMaster nor any of the panel members showed for the hearing. The next day, Layne received a letter from LeMaster's attorney saying "the Sheriff is under no obligation to have provided a predisciplinary hearing for Deputy Layne. Therefore, the Sheriff declines to provide such a hearing."

Eventually, Layne would go on trial on the sexual abuse charges on Aug. 23. He was acquitted four days later.

In his writ, Layne asks that he be rehired as a deputy sheriff, restore all the pay and benefits he lost since May 2 and award him court costs and attorney fees. The 2009 Burgess decision is among the cases he cites in support of his rehiring.

He is represented by Barry Beck with the Martinsburg law firm of Power, Beck and Matzureff. The case is currently assigned to Judge Gina Groh.

Earlier this month, the Senate Judiciary Committee by a voice-vote approved a recommendation by President Barak Obama that Groh, and four others, be appointed as U.S. District judges. Their appointments await confirmation by the full Senate.

The Layne case is one of two pending cases in circuit court in which the Dodson decision could play a role in deciding the outcome. The other is in Mason County.

A month before the Court's decision in Dodson, former Mason County Deputy Sheriff Robert Glenn appealed the county's Civil Service Commission's decision upholding his firing by Sheriff David Anthony. In his appeal, Glenn alleges Anthony, who like Shirley and LeMaster is a Democrat in his first term of office, failed to provide him a pre-disciplinary hearing after he was accused in March of making an inappropriate remark about a female student's T-shirt while working at Hannan High School as its school resource officer.

In his appeal, Glenn maintains while he request a pre-disciplinary hearing from Anthony, he did not give him one since he had yet to get it approved. He, too, cites Burgess v. Moore as grounds for his rehiring.

A hearing in his case is scheduled for Dec. 12.

Berkeley Circuit Court case number 11-C-794 (Layne writ of mandamus); West Virginia Supreme Court of Appeals case number 35699 (Dodson administrative appeal); Mason Circuit Court case number 11-AA-95 (Glenn administrative appeal)