Supreme Court reverses lower court decision, says former police chief rightfully fired

By Kyla Asbury | Apr 2, 2019

CHARLESTON — The West Virginia Supreme Court of Appeals ruled that former Belle police chief Darrick Cox was rightfully terminated from his position after an investigation.

Cox appealed the March 15, 2018, order by Kanawha Circuit Court that reversed the order of the Town of Belle’s Police Service Commission and reinstated Belle's decision to terminate petitioner’s employment.

"Upon consideration of the standard of review, the Court finds no substantial question of law and no prejudicial error," the March 18 memorandum decision states.

On December 12, 2016, the Charleston Gazette-Mail reported that Cox, then Belle's police chief, was under federal investigation.

That same day, Belle's mayor placed Cox on paid administrative leave. The mayor claimed he told Cox that he was no longer allowed in Belle's Town Hall, where the police department was located.

On Jan. 11, 2017, Belle's mayor demoted Cox to the rank of patrolman and notified him that he would remain on administrative leave during the federal and local investigations of his alleged misconduct.

On June 6, 2017, Belle served Cox with a "Notice of Termination, Statement of Charges and Notice of a Right to a Hearing."

The statement of charges alleged insubordination, embezzlement of evidence, falsifying departmental records, sale/purchase of a firearm without authorization by the owner of the firearm and use of official position for personal gain that is prohibited by the West Virginia Ethics Act.

Cox waived his right to a pre-disciplinary hearing and appealed his termination to Belle's Police Civil Service Commission.

The commission convened a hearing on Oct. 25, 2017, and during the opening statements, Belle's attorney claimed there were two issues: that when the mayor placed Cox on administrative leave and banned him from the town hall, he violated that order; and that Cox violated police department policy by purchasing a gun that had been evidence in a suicide case.

Cox had been called down to the town all by a police officer, David Puffinbarger, on Dec. 21, 2016. Puffinbarger testified that he had asked Cox to come down and help him prepare a computerized schedule and that Cox was in the town hall for less than 10 minutes.

Another witness, who was the mother of a decedent who committed suicide with a gun, testified that she asked the mayor, Cox and the new police chief for the gun used by the decedent in his suicide, but was told it could not be returned to her.

The decedent’s girlfriend testified that she purchased the gun and gave it to the decedent, that the gun was registered in the decedent’s name, and, that following the decedent’s death, she did not know the decedent’s mother wanted the gun. The girlfriend also testified that Cox called her, told her the gun was ready to be released, and that he could release it to her. She testified that she told Cox she did not want the gun and that Cox then offered to buy the gun from her for $150.

The girlfriend stated she signed a release for the gun and Cox paid her $150. Thereafter, Belle entered evidence showing that the market value of the gun was about $300.

Belle's new police chief testified that he found the gun and the girlfriend’s release for the gun in the police department’s "gun locker." and Cox testified that he was not notified that he was not allowed in the town hall until he received the mayor’s letter so notifying him, which was after he helped Puffinbarger with scheduling.

Cox testified that pertaining to the gun, the decedent’s death was investigated and determined to be a suicide; thus, no crime was committed.

Cox testified that when the girlfriend came to the police station and said she did not want the gun and asked if he wanted to buy it, he agreed to do so because he wanted to help. He claimed he believed she was the gun’s lawful owner, so he agreed to buy the gun, but that he never took possession of the gun and, instead, left it in the gun locker at the police station along with the girlfriend’s release.

"Petitioner also admitted that he might have made a 'mistake' in purchasing the gun, but claimed he had done nothing that should cause him to lose his job," the decision states.

The commission found that Cox did not violate the order not to be in town hall because the order "was never given," and that he did not violate provisions of the police manual because when he purchased the gun it was no longer evidence. The commission then ordered Belle to reinstate Cox and provide him with back pay and attorney's fees. 

The town then appealed to Kanawha Circuit Court, who reversed the commission's order on March 15, 2018. Cox then appealed the circuit court's order.

"We concur that the circuit court was to give deference to the Commission’s selection of a remedy," the Supreme Court opinion states. "However, in this case, the evidence supported the circuit court’s reversal of the Commission’s order, and its finding that respondent met the burden of establishing that petitioner (1) violated the provisions of the Police Manual when he converted a gun seized as part of a criminal investigation for his own use, (2) violated the West Virginia Code when he failed to properly dispose of the gun, and (3) illegally used his public office for personal gain in purchasing the gun."

The town proved that Cox committed "seriously wrongful conduct," according to the decision.

The Supreme Court affirmed the circuit court's order that reversed the commission's order reinstating Cox to his job and giving him back pay.

West Virginia Supreme Court of Appeals Case number: 18-0330

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