IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2017 Term
FILED
November 9, 2017
released at 3:00 p.m.
No. 16-0840 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
ROBERT MATHENY,
SHERIFF OF HARRISON COUNTY,
Plaintiff Below, Petitioner
V.
LIEUTENANT GREGORY SCOLAPIO,
Defendant Below, Respondent
Appeal from the Circuit Court of Harrison County
Honorable Robert B. Stone, Judge
Civil Action No. 15-C-205-2
AFFIRMED
Submitted: September 20, 2017
Filed: November 9, 2017
Andrea L. Roberts Sam H. Harrold, III
Harrison County Prosecutor’s Office McNeer, Highland, McMunn and
Clarksburg, West Virginia Varner, L.C.
Attorney for the Petitioner Clarksburg, West Virginia
Attorney for the Respondent
John R. Teare, Jr.
Spilman Thomas & Battle, PLLC
Charleston, West Virginia
Attorney for Amicus Curiae,
West Virginia Sheriffs Association
JUSTICE DAVIS delivered the Opinion of the Court.
CHIEF JUSTICE LOUGHRY concurs and reserves the right to file a concurring
opinion.
JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. “The standard of appellate review of a circuit court’s order granting
relief through the extraordinary writ of mandamus is de novo.” Syllabus point 1, Staten v.
Dean, 195 W. Va. 57, 464 S.E.2d 576 (1995).
2. “West Virginia Rule of Civil Procedure 24 . . . allows intervention of
right in an action if an applicant meets four conditions: (1) the application must be timely;
(2) the applicant must claim an interest relating to the property or transaction which is the
subject of the action; (3) disposition of the action may, as a practical matter, impair or impede
the applicant’s ability to protect that interest; and (4) the applicant must show that the interest
will not be adequately represented by existing parties.” Syllabus point 2, in part, State ex rel.
Ball v. Cummings, 208 W. Va. 393, 540 S.E.2d 917 920 (1999).
3. “A statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
force and effect.” Syllabus point 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).
4. “It is well established that the word ‘shall,’ in the absence of language
in the statute showing a contrary intent on the part of the Legislature, should be afforded a
i
mandatory connotation.” Syllabus point 1, Nelson v. West Virginia Public Employees
Insurance Board, 171 W. Va. 445, 300 S.E.2d 86 (1982).
5. “W. Va. Code § 7-14C-3 (1995) (Repl. Vol. 2006) contemplates two
distinct types of hearings. The first type of hearing, which is governed by W. Va. Code §§ 7
14C-3(a&b), is a predisciplinary hearing, which is conducted before disciplinary action has
been taken and is held before a hearing board. Alternatively, the second type of hearing,
which is governed by W. Va. Code § 7-14C-3(b), is conducted after disciplinary action in the
form of ‘discharge, suspension or reduction in rank or pay’ has been taken and is held in
accordance with the provisions of W. Va. Code § 7-14-17 (1996) (Repl. Vol. 2006).”
Syllabus point 6, Burgess v. Moore, 224 W. Va. 291, 685 S.E.2d 685 (2009).
6. “A statute should be so read and applied as to make it accord with the
spirit, purposes and objects of the general system of law of which it is intended to form a
part; it being presumed that the legislators who drafted and passed it were familiar with all
existing law, applicable to the subject matter, whether constitutional, statutory or common,
and intended the statute to harmonize completely with the same and aid in the effectuation
of the general purpose and design thereof, if it terms are consistent therewith.” Syllabus
point 5, State v. Snyder, 64 W. Va. 659, 63 S.E. 385 (1908).
ii
Davis, Justice:
The petitioner herein and plaintiff below, Robert Matheny,1 Sheriff of Harrison
County (“Sheriff Matheny” or “the Sheriff”), appeals from an order entered August 9, 2016,
by the Circuit Court of Harrison County. By that order, the circuit court granted mandamus
relief to the respondent herein and defendant below, Lieutenant Gregory Scolapio
(“Lieutenant Scolapio”), finding that he was entitled to receive a hearing before the Harrison
County Civil Service Commission for Deputy Sheriffs (“Commission”) regarding the
Sheriff’s decision to terminate his employment. On appeal to this Court, Sheriff Matheny
assigns error to the circuit court’s ruling, arguing that Lieutenant Scolapio was not entitled
to receive a civil service hearing. Lieutenant 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
1
On December 29, 2016, Robert Matheny was sworn in as the Sheriff of
Harrison County, replacing former Sheriff Albert F. Marano, who was the Sheriff at the time
of the underlying events leading to the case sub judice. Accordingly, pursuant to Rule 41(c)
of the West Virginia Rules of Appellate Procedure, we substitute Sheriff Matheny as the
petitioner herein. See W. Va. R. App. P. 41(c) (“When a public officer is a party to an appeal
or other proceeding in the Supreme Court in his official capacity and during its pendency
dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor
is automatically substituted as a party. Proceedings following the substitution shall be in the
name of the substituted party, but any misnomer not affecting the substantial rights of the
parties shall be disregarded. . . .”).
1
board hearing and a hearing before the Commission. 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.
I.
FACTUAL AND PROCEDURAL HISTORY
Lieutenant Scolapio was the supervisor in charge of the bailiff division and
assisted with courthouse security for the Harrison County Family Court. On January 12,
2015, a circuit court juror brought a cooler containing his lunch into the courthouse and
passed through courthouse security; thereafter, the cooler was left unattended in a hallway
in the courthouse. Lieutenant Scolapio allegedly was requested to assist with determining
whether the unattended cooler was a “suspicious package” and allegedly failed to respond
to such request for assistance. Thereafter, the Sheriff initiated an internal investigation and
issued a letter of suspension to Lieutenant Scolapio on January 20, 2015, which immediately
suspended him with pay. The letter further proposed that Lieutenant Scolapio be terminated
and provided notice of his right to a hearing before a hearing board in accordance with
W. Va. Code § 7-14C-3 (1995) (Repl. Vol. 2015).2
2
For the text of W. Va. Code § 7-14C-3 (1995) (Repl. Vol. 2015), see Section
III.B., infra.
2
Lieutenant Scolapio, by counsel, invoked his right to a pre-disciplinary hearing
board hearing by letter dated January 21, 2015. The hearing was held on February 18, 2015.
By decision dated February 26, 2015, the hearing board found “reasonable grounds” to
terminate Lieutenant Scolapio’s employment with the Harrison County Sheriff’s Department.
On February 26, 2015, Lieutenant Scolapio’s status was changed from “suspended with pay”
to “terminated.”
On March 12, 2015, Lieutenant Scolapio filed a notice of appeal to the
Commission, requesting a full, de novo, evidentiary hearing. By decision dated April 23,
2015, the Commission denied Lieutenant Scolapio’s request for a hearing and stated that it
would decide the matter based upon the record from the hearing board proceedings.
Lieutenant Scolapio then filed a petition for writ of mandamus in the Circuit
Court of Harrison County on May 14, 2015, seeking to compel the Commission to provide
him a de novo evidentiary hearing. By order entered August 9, 2016, the circuit court
concluded that Lieutenant Scolapio was entitled to both a pre-disciplinary evidentiary hearing
before the hearing board and a de novo evidentiary hearing before the Commission. Sheriff
Matheny now appeals from the circuit court’s decision3 to this Court.4
3
During the pendency of the circuit court mandamus proceedings, the Harrison
County Deputy Sheriffs Civil Service Commission, based upon the hearing board record,
(continued...)
3
II.
STANDARD OF REVIEW
The case sub judice is before this Court on appeal from the circuit court’s order
granting mandamus relief to Lieutenant Scolapio. We previously have held that “[t]he
standard of appellate review of a circuit court’s order granting relief through the
extraordinary writ of mandamus is de novo.” Syl. pt. 1, Staten v. Dean, 195 W. Va. 57, 464
S.E.2d 576 (1995). Accord Syl. pt. 1, Harrison Cty. Comm’n v. Harrison Cty. Assessor, 222
W. Va. 25, 658 S.E.2d 555 (2008) (“A de novo standard of review applies to a circuit court’s
decision to grant or deny a writ of mandamus.”).
Given that the circuit court awarded relief in mandamus, below, we also must
consider whether the elements for granting a writ of mandamus have been satisfied. In this
regard, we have held that
“[a] writ of mandamus will not issue unless three
3
(...continued)
issued its ruling on March 31, 2016, affirming, in part, and reversing, in part, the hearing
board’s decision, and ultimately affirming the hearing board’s finding that the Sheriff had
reasonable grounds to terminate Lieutenant Scolapio’s employment. Lieutenant Scolapio
appealed from this ruling to the circuit court on June 23, 2016. The instant proceeding before
this Court is limited to a consideration of the merits of Lieutenant Scolapio’s mandamus
action in circuit court, in which the circuit court found that he was entitled to a hearing before
the Civil Service Commission; the Commission’s ultimate decision to uphold Lieutenant
Scolapio’s termination from employment is not at issue in the case sub judice.
4
We appreciate the appearance of Amicus Curiae, the West Virginia Sheriffs
Association, and will consider its contributions in our decision of this case.
4
elements coexist–(1) a clear legal right in the petitioner to the
relief sought; (2) a legal duty on the part of respondent to do the
thing which the petitioner seeks to compel; and (3) the absence
of another adequate remedy.” Syllabus Point 1, State ex rel.
Billy Ray C. v. Skaff, 190 W. Va. 504, 438 S.E.2d 847 (1993);
Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153
W. Va. 538, 170 S.E.2d 367 (1969).
Syl. pt. 2, Staten v. Dean, 195 W. Va. 57, 464 S.E.2d 576. Accord Syl. pt. 2, Myers v. Barte,
167 W. Va. 194, 279 S.E.2d 406 (1981) (“To invoke mandamus the relator must show (1)
a clear right to the relief sought; (2) a legal duty on the part of the respondent to do the thing
relator seeks; and (3) the absence of another adequate remedy.”).
Finally, insofar as the assignments of error at issue herein are resolved by the
governing statutory law, we must determine whether the circuit court properly applied and
interpreted the same. In this respect, we have held that “[i]nterpreting a statute or an
administrative rule or regulation presents a purely legal question subject to de novo review.”
Syl. pt. 1, Appalachian Power Co. v. State Tax Dep’t of West Virginia, 195 W. Va. 573, 466
S.E.2d 424 (1995). Accord Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459
S.E.2d 415 (1995) (“Where the issue on an appeal from the circuit court is clearly a question
of law or involving the interpretation of a statute, we apply a de novo standard of review.”).
Mindful of these standards, we proceed to consider the parties’ arguments.
5
III.
DISCUSSION
During the proceedings below, the circuit court determined that the Sheriff had
a right to intervene in the instant case and that Lieutenant Scolapio, who received a pre-
disciplinary hearing before the hearing board, was entitled to a de novo evidentiary hearing
before the Commission.
On appeal to this Court, Sheriff Matheney argues that the circuit court erred
by ruling that Lieutenant Scolapio is entitled to a de novo evidentiary hearing before the
Commission. In support of his position, the Sheriff claims that the governing statutes permit
an appeal to the Commission, but that they do not specifically grant a de novo hearing before
the Commission. Sheriff Matheny further relies on the language of W. Va. Code § 7-14-17
(1996) (Repl. Vol. 2015) providing that, in hearing an appeal from the Commission, the
circuit court “shall . . . hear the appeal upon the original record made before the
commission.”
Lieutenant Scolapio responds that the circuit court correctly determined that
he is entitled to both a pre-disciplinary hearing before the hearing board and a de novo
evidentiary hearing before the Commission on appeal from the hearing board. He argues that
both the governing statutes and this Court’s prior decision in Burgess v. Moore, 224 W. Va.
6
291, 685 S.E.2d 685 (2009), recognize these two distinct types of hearings and an aggrieved
employee’s right to receive both. On cross-appeal, Lieutenant Scolapio assigns error to the
circuit court’s decision to grant the Sheriff’s motion to intervene, contending that the circuit
court erred in so ruling.
A. Intervention
We first consider whether the circuit court erred by permitting the Sheriff to
intervene in Lieutenant Scolapio’s disciplinary proceedings. In rendering its ruling, the court
found, by order entered June 2, 2016, that the “Sheriff’s . . . Motion to Intervene was timely
filed and that [the] Sheriff . . . has an interest in these proceedings.” The circuit court
additionally ruled that the Sheriff has a “narrow interest in the outcome of this particular case
[mandamus proceedings] and a direct interest in the broader issues in this case that could
affect future appeals of pre-disciplinary proceedings.”
Given that the Sheriff is the party who initiated the underlying disciplinary
proceedings against Lieutenant Scolapio, from which the case sub judice arises, it is clear
that Sheriff Matheny has a cognizable interest herein. Moreover, the circuit court’s order
very nearly tracks and resolves the factors to be considered in determining whether a party
may intervene in a particular proceeding:
West Virginia Rule of Civil Procedure 24 . . . allows
intervention of right in an action if an applicant meets four
7
conditions: (1) the application must be timely; (2) the applicant
must claim an interest relating to the property or transaction
which is the subject of the action; (3) disposition of the action
may, as a practical matter, impair or impede the applicant’s
ability to protect that interest; and (4) the applicant must show
that the interest will not be adequately represented by existing
parties.
Syl. pt. 2, in part, State ex rel. Ball v. Cummings, 208 W. Va. 393, 540 S.E.2d 917 920
(1999). See also W. Va. R. Civ. P. 24 (addressing intervention). With respect to the final
factor, even though the circuit court did not specifically find that the Sheriff’s interest would
not be adequately represented by existing parties, it goes without saying that, as the party
initiating the disciplinary proceedings in the first instance, Sheriff Matheny is an essential
party to any litigation related thereto and having an effect upon his decision to recommend
disciplinary action be taken against Lieutenant Scolapio. Accordingly, we affirm the circuit
court’s ruling recognizing Sheriff Matheny’s interest in this case and granting him intervenor
status in accordance therewith.
B. Entitlement to Hearing before the Commission
We next consider whether Lieutenant Scolapio was entitled to a de novo
hearing before the Commission following his receipt of a pre-disciplinary hearing before the
hearing board. In determining that Lieutenant Scolapio should receive the hearing before the
Commission that he requested, the circuit court ruled as follows:
It is the Court’s opinion that the provisions of article 14C
[W. Va. Code § 7-14C-1 et seq.], in addition to satisfying due
8
process requirements, serve a screening and investigative
function. The provisions of article 14C allow the sheriff and
some of the deputy sheriff’s peers to investigate and determine
if there is a proper basis for discipline and what the particular
discipline should be. This interpretation does not supplant the
role of the civil service commission in making an ultimate
decision regarding removal, discharge, suspension, or reduction
in rank or pay of a deputy sheriff[.]
The statute to which the circuit court refers in discussing the Commission’s
role is W. Va. Code § 7-14-17 (1996) (Repl. Vol. 2015), which provides, in pertinent part:
No deputy sheriff of any county subject to the provisions
of this article may be removed, discharged, suspended or
reduced in rank or pay except for just cause, which may not be
religious or political, except as provided in section fifteen of this
article; and no such deputy may be removed, discharged,
suspended or reduced in rank or pay except as provided in this
article and in no event until the deputy has been furnished with
a written statement of the reasons for the action. In every case
of such removal, discharge, suspension or reduction, a copy of
the statement of reasons therefor and of the written answer
thereto, if the deputy desires to file such written answer, shall be
furnished to the civil service commission and entered upon its
records. If the deputy demands it, the civil service commission
shall grant a public hearing, which hearing shall be held within
a period of ten days from the filing of the charges in writing or
the written answer thereto, whichever shall last occur. At the
hearing, the burden shall be upon the sheriff to justify his or her
action, and in the event the sheriff fails to justify the action
before the commission, then the deputy shall be reinstated with
full pay, forthwith and without any additional order, for the
entire period during which the deputy may have been prevented
from performing his or her usual employment, and no charges
may be officially recorded against the deputy’s record. The
deputy, if reinstated or exonerated, shall, if represented by legal
counsel, be awarded reasonable attorney fees to be determined
9
by the commission and paid by the sheriff from county funds.
A written record of all testimony taken at the hearing shall be
kept and preserved by the civil service commission, which
record shall be sealed and not be open to public inspection
unless an appeal is taken from the action of the commission.
W. Va. Code § 7-14-17(a) (emphasis added). To decide whether the circuit court correctly
ruled, we must determine whether the circuit court properly construed and applied this
statute.
When faced with a matter of statutory construction, we previously have held
that “[t]he primary object in construing a statute is to ascertain and give effect to the intent
of the Legislature.” Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108,
219 S.E.2d 361 (1975). Moreover, “if the legislative intent is clearly expressed in the statute,
this Court is not at liberty to construe the statutory provision, but is obligated to apply its
plain language.” Dan’s Carworld, LLC v. Serian, 223 W. Va. 478, 484, 677 S.E.2d 914, 920
(2009). Accord Syl. pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of
Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959) (“When a statute is clear and
unambiguous and the legislative intent is plain, the statute should not be interpreted by the
courts, and in such case it is the duty of the courts not to construe but to apply the statute.”).
Finally, “[a] statutory provision which is clear and unambiguous and plainly expresses the
legislative intent will not be interpreted by the courts but will be given full force and effect.”
Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). Accord Syl. pt. 2,
10
Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970) (“Where the language of a
statute is free from ambiguity, its plain meaning is to be accepted and applied without resort
to interpretation.”).
The pivotal statutory language at issue herein provides as follows:
No deputy sheriff . . . may be removed, discharged,
suspended or reduced in rank or pay except as provided in this
article . . . . If the deputy demands it, the civil service
commission shall grant a public hearing, which hearing shall be
held within a period of ten days from the filing of the charges in
writing or the written answer thereto, whichever shall last occur.
W. Va. Code § 7-14-17(a) (emphasis added). We find this language to be plain and to
require the Commission to provide Lieutenant Scolapio the de novo hearing before the
Commission that he has requested. It is undisputed that, at the time that Lieutenant Scolapio
requested a hearing before the Commission, i.e., March 12, 2015, he already had been
terminated insofar as he was discharged on February 26, 2015. Moreover, the parties also
do not dispute the timeliness of his hearing request. Finally, the plain language of the statute
states that, upon such a request, “the civil service commission shall grant a public hearing,”
W. Va. Code § 7-14-17(a). “It is well established that the word ‘shall,’ in the absence of
language in the statute showing a contrary intent on the part of the Legislature, should be
afforded a mandatory connotation.” Syl. pt. 1, Nelson v. West Virginia Pub. Emps. Ins. Bd.,
171 W. Va. 445, 300 S.E.2d 86 (1982). Accord Syl. pt. 2, Terry v. Sencindiver, 153 W. Va.
651, 171 S.E.2d 480 (1969). Thus, it is clear that the Commission was required to grant the
11
hearing requested by Lieutenant Scolapio.
Furthermore, this interpretation of the governing statutory language is
consistent with our prior consideration of this provision. During our analysis of W. Va. Code
§ 7-14-17 in State ex rel. Ashley v. Civil Service Commission for Deputy Sheriffs of Kanawha
County, 183 W. Va. 364, 395 S.E.2d 787 (1990) (per curiam), we observed that
this language clearly indicates that the legislature
contemplated that, if a deputy sheriff was removed, discharged,
or suspended as provided in the statute, upon his protest to such
action a hearing on the grounds forming the basis for the action
should be conducted and a record should be made of that
hearing.
Id., 183 W. Va. at 369, 395 S.E.2d at 792. Additionally, in considering the statutory hearing
scheme for a disciplined deputy sheriff, we held in Syllabus point 6 in Burgess v. Moore, 224
W. Va. 291, 685 S.E.2d 685 (2009), that
W. Va. Code § 7-14C-3 (1995) (Repl. Vol. 2006)
contemplates two distinct types of hearings. The first type of
hearing, which is governed by W. Va. Code §§ 7-14C-3(a&b),
is a predisciplinary hearing, which is conducted before
disciplinary action has been taken and is held before a hearing
board. Alternatively, the second type of hearing, which is
governed by W. Va. Code § 7-14C-3(b), is conducted after
disciplinary action in the form of “discharge, suspension or
reduction in rank or pay” has been taken and is held in
accordance with the provisions of W. Va. Code § 7-14-17
(1996) (Repl. Vol. 2006).
Accordingly, based upon the plain language of W. Va. Code § 7-14-17(a) and our prior
decisions interpreting the same, we affirm the circuit court’s ruling granting Lieutenant
12
Scolapio’s request for mandamus relief and requiring the Commission to afford him a de
novo evidentiary hearing.
Nevertheless, even if Lieutenant Scolapio had not been terminated before he
requested a hearing before the Commission, the governing statutes clearly afford a deputy
sheriff facing disciplinary action both a hearing before the hearing board and a hearing,
either following the imposition of disposition or on appeal from the hearing board, before the
deputy sheriffs civil service commission. In the case sub judice, upon learning of the
disciplinary action proposed to be taken against him, Lieutenant Scolapio requested and
received a pre-disciplinary hearing before the hearing board in accordance with W. Va. Code
§ 7-14C-3 (1995) (Repl. Vol. 2015):
(a) If the investigation or interrogation of a deputy sheriff
results in the recommendation of some punitive action, then,
before taking punitive action the sheriff shall give notice to the
deputy sheriff that he or she is entitled to a hearing on the issues
by a hearing board. The notice shall state the time and place of
the hearing and the issues involved and be delivered to the
deputy sheriff not less than ten days prior to the hearing. An
official record, including testimony and exhibits, shall be kept
of the hearing.
(b) The hearing shall be conducted by the hearing board
of the deputy sheriff except that in the event the recommended
punitive action is discharge, suspension or reduction in rank or
pay, and the action has been taken, the hearing shall be pursuant
to the provisions of section seventeen, article fourteen of this
chapter, if applicable. Both the sheriff and the deputy sheriff
shall be given ample opportunity to present evidence and
argument with respect to the issues involved.
13
(c) With respect to the subject of any investigation or
hearing conducted pursuant to this section, the hearing board
may subpoena witnesses and administer oaths or affirmations
and examine any individual under oath and may require and
compel the production of records, books, papers, contracts and
other documents.
(d) Any decision, order or action taken as a result of the
hearing shall be in writing and shall be accompanied by findings
of fact. The findings shall consist of a concise statement upon
each issue in the case. A copy of the decision or order and
accompanying findings and conclusions, along with written
recommendations for action, shall be delivered or mailed
promptly to the deputy sheriff or to his or her attorney of record.
Following the hearing board’s hearing in this case and finding of “reasonable grounds” to
support the proposed disciplinary action of terminating Lieutenant Scolapio’s employment,
Lieutenant Scolapio invoked his statutory right to appeal the hearing board’s decision.
W. Va. Code § 7-14C-5 (1995) (Repl. Vol. 2015) establishes the procedure for
appealing an adverse hearing board decision:
Any deputy sheriff adversely affected by any decision,
order or action taken as a result of a hearing as herein provided
has the right to appeal the decision, order or action to the deputy
sheriff’s civil service commission, in the manner provided for in
section fifteen, article fourteen of this chapter.
The sheriff may also appeal the decision of the hearing
board if he or she believes the department would be adversely
affected by the order or action of the hearing board.
The order or action of the hearing board is binding upon
all involved parties unless overturned in the appeal process by
the deputy sheriff’s civil service commission or the circuit court
14
of the county wherein the affected parties reside.
Pursuant to the referenced section governing such appeals, W. Va. Code § 7-14-15 (2007)
(Repl. Vol. 2015), which pertains primarily to prohibited political activities, provides, in
pertinent part:
An appeal from the ruling of the commission [pertaining
to prohibited political activities] may be had in the same manner
and within the same time as specified in section seventeen of
this article for an appeal from a ruling of a commission after
hearing held in accordance with the provisions of said section.
W. Va. Code § 7-14-15(f). Finally, W. Va. Code § 7-14-17 discusses a deputy sheriff’s right
to appeal an unfavorable ruling:
(b) In the event the civil service commission sustains the
action of the sheriff, the deputy has an immediate right of appeal
to the circuit court of the county. In the event that the
commission reinstates the deputy, the sheriff has an immediate
right of appeal to the circuit court. In the event either the sheriff
or the deputy objects to the amount of the attorney fees awarded
to the deputy, the objecting party has an immediate right of
appeal to the circuit court. Any appeal must be taken within
ninety days from the date of entry by the civil service
commission of its final order. Upon an appeal being taken and
docketed with the clerk of the circuit court of the county, the
circuit court shall proceed to hear the appeal upon the original
record made before the commission and no additional proof may
be permitted to be introduced. The circuit court’s decision is
final, but the deputy or sheriff, as the case may be, against
whom the decision of the circuit court is rendered has the right
to petition the supreme court of appeals for a review of the
circuit court’s decision as in other civil cases. The deputy or
sheriff also has the right, where appropriate, to seek, in lieu of
an appeal, a writ of mandamus. The deputy, if reinstated or
exonerated by the circuit court or by the supreme court of
appeals, shall, if represented by legal counsel, be awarded
15
reasonable attorney fees as approved by the court and the fees
shall be paid by the sheriff from county funds.
W. Va. Code § 7-14-17(b).
Though not a model of clarity, it is clear that the referenced statutory scheme
contemplates a second, de novo hearing before the commission. This is so because both
W. Va. Code § 7-14-15(f) and W. Va. Code § 7-14-17(b) specifically refer to a “ruling of the
commission,” not the hearing board. Moreover, W. Va. Code § 7-14-17(b) directs a final
appeal to be heard by the circuit court of the county involved in such proceedings. Where
a legislative enactment works in tandem with other promulgations to form a comprehensive
statutory scheme, we have held that
[a] statute should be so read and applied as to make it
accord with the spirit, purposes and objects of the general
system of law of which it is intended to form a part; it being
presumed that the legislators who drafted and passed it were
familiar with all existing law, applicable to the subject matter,
whether constitutional, statutory or common, and intended the
statute to harmonize completely with the same and aid in the
effectuation of the general purpose and design thereof, if it
terms are consistent therewith.
Syl. pt. 5, State v. Snyder, 64 W. Va. 659, 63 S.E. 385 (1908). Here, the Legislature could
have referred an appeal from the hearing board directly to circuit court in W. Va. Code § 7
14C-5 had that been its intent. However, it did not. Instead, the Legislature directed
aggrieved parties through a circuitous and confusing statutory labyrinth, instructing that a
hearing board appeal be conducted in the same manner as an appeal from the commission.
16
See W. Va. Code § 7-14-15(f). Moreover, an appeal from the commission necessarily
requires, as a prerequisite, a decision that has been made by the commission from which such
appeal may be taken. Thus, it is apparent that, regardless of whether disciplinary action was
taken against Lieutenant Scolapio before he requested a hearing before the Commission, he
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. See generally Syl. pt. 4, State ex rel.
Hardesty v. Aracoma-Chief Logan No. 4523, Veterans of Foreign Wars of the United States,
Inc., 147 W. Va. 645, 129 S.E.2d 921 (1963) (“It is always presumed that the legislature will
not enact a meaningless or useless statute.”); Syl. pt. 2, Newhart v. Pennybacker, 120 W. Va.
774, 200 S.E. 350 (1938) (“Where a particular construction of a statute would result in an
absurdity, some other reasonable construction, which will not produce such absurdity, will
be made.”). Accordingly, we find no error with the circuit court’s ruling affording
Lieutenant Scolapio a de novo hearing before the Harrison County Civil Service Commission
for Deputy Sheriffs.
17
IV.
CONCLUSION
For the foregoing reasons, the August 9, 2016, order of the Circuit Court of
Harrison County is hereby affirmed.
Affirmed.
18