Cabell deputy's termination remanded for predisciplinary hearing

HUNTINGTON - After making a trip to the state Supreme Court, a Cabell circuit judge has ordered a dispute between the county sheriff and one of his deputies back to square one.

Judge F. Jane Hustead on April 19 ordered Sheriff Tom W. McComas’ appeal of the county Deputy Sheriff’s Civil Service Commission’s decision overturning his termination of Lt. Patrice D. Lambert back to him for a predisciplinary hearing.

Citing the court’s decisions in Burgess v. Moore and Alden v. Harpers Ferry Police Civil Service Commission, she wrote “a predisciplinary hearing/predeprivation hearing cannot be waived or otherwise disregarded in this case.”

Also, Hustead ordered that should McComas wish to again appeal the commission’s decision he could petition to reopen the case rather than file a new one.

According to court records, upon becoming sheriff on Jan. 1, 2009, McComas enacted a policy requiring all deputies and other Cabell County Sheriff’s Department employees such has home confinement officers authorized to carry weapons to pass a regular firearms proficiency test.

Anyone who failed to meet the minimum score of 80 percent proficiency after two initial attempts was given remedial training followed by two more attempts.

Any deputy or employee failing to meet the 80 percent threshold after the last two attempts was terminated.

On Aug. 17, records show, McComas notified Lambert via letter effective immediately she was suspended with pay. A week later, McComas notified Lambert via letter of her termination from CCSD due to her failure to pass the firearm qualification test.

At that time, Lambert was a 29-year department veteran and bureau commander of the Cabell County Holding Facility.

Records are unclear as to what dates Lambert was tested. However, in his petition for appeal filed March 6, Ryan Turner, McComas’ attorney, said Lambert’s scores were 54, 62, 62 and 66 percent..

Also, Turner averred during those tests Lambert “was given special accommodation such as knee pads and instructor repositioning during her failed qualification attempts.”

Records show Lambert on Aug. 28 appealed her termination to the commission, which met on Dec. 14. After the commission took testimony, Lambert’s attorney, Frederick G. Staker III, submitted a motion for reinstatement in which he argued, among other things, McComas improperly fired her because his standard of 80 percent is higher than the state Law Enforcement Professional Standard’s threshold of 75 percent.

After it met again on Jan. 30, the commission on Feb. 5 reversed McComas’ decision terminating Lambert. In its order, the Commission said McComas’ “firearms regulations test must comply with West Virginia [law].”

Following the commission’s decision, records show, Lambert made at least two requests for McComas to reinstate her.

When he refused and announced on Feb. 19 his decision to appeal the decision to circuit court, Lambert on Feb. 26 filed a writ of mandamus to the Supreme Court asking the justices to order McComas to reinstate her.

However, the court on April 10 unanimously rejected her writ on the grounds it was prematurely filed.

West Virginia Supreme Court of Appeals, case number 13-0179

Cabell Circuit Court, case number 13-C-144