West Virginia Record

Saturday, December 7, 2019

Supreme Court sides with police department in appeal by officers

State Supreme Court

By Kyla Asbury | Jun 24, 2019


CHARLESTON — The West Virginia Supreme Court of Appeals sided with the Martinsburg Police Civil Service Commission in a case challenging the commission’s decision to award points to a candidate on competitive exam for promotion based on education credentials.

Quenton Burner and Erin appealed an Oct. 3, 2017, order from Berkeley Circuit Court denying their appeal and petition for writ of mandamus, and affirming the final order issued by the Martinsburg Police Civil Service Commission, according to the April 30 opinion.

“Petitioners challenge the circuit court’s holding that the Commission’s awarding points to a candidate on competitive examination for promotion based on education credentials did not violate the requirements of the Police Civil Service Act set forth in West Virginia Code §§ 8-14- 6 to 8-14-24 (LexisNexis 2017),” the majority opinion states.

Justice Evan Jenkins authored the majority opinion. Justice Tim Armstead recused himself from the case and Judge Paul Farrell took his place for the appeal. Chief Justice Beth Walker concurred in the majority opinion, but authored a separate opinion.

Jenkins wrote that the court considered the briefs submitted on appeal, the appendix record, the parties’ oral arguments and the applicable legal authority and found no error, thereby affirming the circuit court’s order.

Burner and Gibbons were officers with the Martinsburg Police Department and sat for competitive examinations for promotions to sergeant and corporal, respectively in 2016.

After scores were tallied, Burner received the third-highest score for two open sergeant position openings. The two above him received extra points for having higher education degrees than Burner.

Gibbons was also outscored by individuals who had higher education degrees than his, according to the opinion.

“Without the consideration of points for education, Cpl. Burner and PFC Gibbons would have both finished with sufficient scores for promotion,” the opinion states.

The petitioners asked the commission to review their scores and heard arguments on the legality of awarding points for education. On Feb. 1, 2017, the commission found that there was no basis from deviating from his standard rule of awarding points for education.

The petitioners then appealed the decision of the commission to the circuit court, which sided with the commission. The appeal was then brought to the Supreme Court.

“The purpose of awarding points for an individual’s education credentials is to ensure that our State’s police officers are individuals of the highest caliber,” Jenkins wrote. “Higher education is not a requirement or a ‘screening device’ devised to eliminate or prevent candidates from promotions, but rather, higher education is one element of a carefully planned multi-point system used to promote officers.”

Jenkins wrote that the commission was not considering an individual’s education to the exclusion of seniority, but in tandem as a balance and complement to the other elements of the rubric.

“After careful consideration, we find there is a rational basis for considering an officer’s education and that said consideration under ‘experience’ is not inconsistent or in conflict with the provisions of the Police Civil Service Act,” Jenkins wrote.

The court found that the circuit court did not commit reversible error when it found that the Martinsburg Police Commission’s consideration of higher education as a component of “experience” under the Police Civil Service Act was consistent with the Act’s purpose of ensuring meritorious promotions.

“Having found the circuit court did not err in upholding the Commission’s decision, the Petitioners’ request for a writ of mandamus and an award of attorney’s fees is denied as moot,” Jenkins wrote.

In her concurring opinion, Walker said that she wanted to clarify her analysis.

“I recognize that ‘a municipality’s powers are strictly construed[.]’ she wrote. “The Commission, however, is authorized by statute to ‘prescribe and enforce rules and regulations carrying into effect the civil service provisions of [West Virginia Code Chapter 8, Article 14],’”

Walker wrote that she believes it is proper to assess the legality of the commission’s Rule VII in the context of that statutory authority and the Legislature’s decision not to define the term, “experience,” found in § 8-14-17(b).

“Based on that analysis, I concur with the majority that the circuit court’s final order denying petitioners’ appeal and affirming the final order of the Commission must be affirmed,” Walker wrote.

West Virginia Supreme Court of Appeals Case number: 17-0971

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