Supreme Court says lieutenant should be afforded pre-disciplinary hearing

By Kyla Asbury | Dec 8, 2017

CHARLESTON – The West Virginia Supreme Court of Appeals has issued an opinion saying that a lieutenant with the Harrison County Sheriff’s Department should have been awarded a pre-disciplinary hearing before his employment was terminated.

CHARLESTON – The West Virginia Supreme Court of Appeals has issued an opinion saying that a lieutenant with the Harrison County Sheriff’s Department should have been awarded a pre-disciplinary hearing before his employment was terminated.

Robert Matheny, the sheriff of Harrison County, appealed to the Supreme Court after an order was entered on Aug. 9, 2016, by Harrison Circuit Court, according to the Nov. 9 opinion.

Justice Robin Jean Davis authored the majority opinion. Justice Menis Ketchum dissented and filed a separate opinion. Chief Justice Allen Loughry concurred with the majority opinion and authored a separate opinion.

“By that order, the circuit court granted mandamus relief to … Lieutenant Gregory Scolapio, finding that he was entitled to receive a hearing before the Harrison County Civil Service Commission for Deputy Sheriffs regarding the sheriff’s decision to terminate his employment,” the opinion states.

On appeal, Matheny assigns error to the circuit court’s ruling, arguing that Scolapio was not entitled to receive a civil service hearing.

Scolapio, through a cross-assignment of error, challenges the circuit court’s decision to permit the sheriff to intervene in the subject proceedings.

“Upon a review of the parties’ arguments, the record designated for appellate consideration, and the pertinent authorities, we conclude that the circuit court correctly determined that Lieutenant Scolapio was entitled to receive both a pre-disciplinary hearing board hearing and a hearing before the Commission,” Davis wrote. “We further find that it was proper to permit Sheriff Matheny to intervene in these proceedings. Accordingly, the August 9, 2016, order of the Circuit Court of Harrison County is affirmed.”

Scolapio was the supervisor in charge of the bailiff division and assisted with courthouse security for Harrison County Family Court. On Jan. 12, 2015, a circuit court juror brought a cooler containing his lunch into the courthouse and passed through courthouse security, however, the cooler was then left unattended in the hallway.

Scolapio allegedly was requested to assist with determining whether the unattended cooler was a suspicious package and allegedly failed to respond to the request for assistance.

Thereafter, Matheny initiated an internal investigation and issued a letter of suspension on Jan. 20, 2015. Scolapio invoked his right to a pre-disciplinary hearing board hearing, which was held on Feb. 18, 2015.

On Feb. 26, 2015, the hearing board found reasonable grounds to terminate Scolapio employment. On that day, his status was changed from “suspended with pay” to “terminated.”

On March 12, 2015, Scolapio filed a notice of appeal to the commission and the commission denied the request on April 23, 2015.

Scolapio then filed a petition for writ of mandamus in Harrison Circuit Court on May 14, 2015. The circuit court concluded that he was entitled to both a pre-disciplinary evidentiary hearing before the hearing board and a de novo evidentiary hearing before the commission on Aug. 9, 2016.

Matheny then appealed to the Supreme Court.

The Supreme Court ruled that Scolapio was entitled to both a pre-disciplinary hearing before the hearing board and a hearing before the commission, with a right to appeal the commission’s ultimate decision to circuit court.

“Any other interpretation of these provisions would be nonsensical and require the performance of a futile act, i.e., adherence to the various procedures set forth in W. Va. Code §§ 7-14-15 & 7-14-17 on appeal from an adverse hearing board ruling, which result cannot conceivably have been intended by the Legislature,” Davis wrote. “Accordingly, we find no error with the circuit court’s ruling affording Lieutenant Scolapio a de novo hearing before the Harrison CountyCivil Service Commission for Deputy Sheriffs.”

In his separate opinion, Loughry wrote that he concurred with the majority’s opinion, but wanted to clarify that the majority’s decision misconstrues Burgess v. Moore and ignores plain language of West Virginia code that resulted in a failure to recognize that certain instances of misconduct can be so egregious that immediate punitive action must be taken.

“In those circumstances, a pre-disciplinary hearing is not required,” he wrote.

The majority’s statement that a deputy sheriff facing disciplinary action is entitled to both a hearing before the hearing board and a hearing before the deputy sheriffs civil service commission is contrary to the plain language of the statute and Burgess, according to Loughry.

“West Virginia Code § 7-14C-3(b) does not mandate a pre-disciplinary hearing when punitive action has already been taken and neither does common sense,” he wrote. “Indeed, it defies logic to conclude that a deputy sheriff who has already been disciplined is nonetheless entitled to a ‘pre-disciplinary’ hearing.”

Certainly, deputy sheriffs are entitled to due process when they are subject to punitive action, especially when the end result may be the loss of employment, he said. However, the statute, as written, does not require a pre-disciplinary hearing in all instances “before” punitive action is imposed.

“If the Legislature intended to afford deputy sheriffs facing punitive action with two hearings – a pre-disciplinary hearing before the hearing board and a post-disciplinary hearing before the deputy sheriffs civil service commission – then the governing statutes should be amended to make such intent plain and unambiguous,” Loughry wrote.

In his dissenting opinion, Ketchum said the majority incorrectly held that W.Va. Code § 7-14C-3 (1995) (Repl. Vol. 2006) contemplates two distinct types of hearings for a deputy sheriff facing discharge, suspension, or reduction in rank or pay.

“I would overrule Syllabus Point 6 of Burgess because it is an incorrect statement of law,” he wrote.  “The clear language of W.Va. Code § 7-14C-3 contemplates one hearing before the Civil Service Commission for a deputy sheriff who has been discharged, suspended or made subject to reduced rank or pay.”

Under their plain terms, W.Va. Code § 7-14C-3(b) and W.Va. Code § 7-1417 allow only one hearing before the Civil Service Commission when the punitive action against a deputy sheriff involves discharge, suspension, or reduced rank or pay. 

“Lesser punitive actions are heard before a hearing board comprised of fellow officers with an appeal to the Civil Service Commission. W.Va. Code §§ 7-14C-3, -5. In this case, where the deputy sheriff was suspended, there should have been only one hearing in front of the Civil Service Commission,” Ketchum wrote.

W.Va. Supreme Court of Appeals case number: 16-0840

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