Monday, December 18, 2006

City police officer's termination reversed

In State ex rel. Dickerson v. City of Logan, No. 33174 (Per Curiam)(November 29, 2006), the West Virginia Supreme Court of Appeals reinstated with back pay a probationary city police officer where the city failed to give the officer a written statement of the reasons for his termination, and it failed to offer him a hearing.

The case is a fairly unremarkable application of established statutory law, and to some extent, the holding in syllabus point 6 of Major v. DeFrench, 169 W.Va. 241, 286 S.E.2d 688 (1982), which stated that “A police civil service employee who is dismissed from employment at the end of her probationary term, is entitled to the procedural protections set out in W.Va. Code § 8-14-20.” West Virginia Code § 8-14-20(a) requires that a police officer be "furnished with a written statement of the reasons for the action" taken against him, and also, if the officer demands it, "a public hearing."

The statute creating the "probationary" classification for new officers is reasonably clear as it applies to officers in the middle of their probationary period: "All original appointments to any positions in a paid police department subject to the civil service provisions of this article shall be for a probationary period of one year: Provided, That at any time during the probationary period the probationer may be discharged for just cause, in the manner provided in section twenty of this article." W.Va. Code §8-14-11 (emphasis added). This statute controls the outcome of this case. The officer was fired eight months into his one-year probationary period, and not at the conclusion.

Of course, in Major, the court went on to hold that that even if an officer does complete his probationary period, he is still entitled to written notice of the reasons for his termination and a public hearing, not because the statute requires it, but because of his constitutional right to due process. For officers who have completed their probationary period, the statute itself gives only the right to written notice of the decision: "If, at the close of this probationary term, the conduct or capacity of the probationer has not been satisfactory to the appointing officer, the probationer shall be notified, in writing, that he will not receive absolute appointment, whereupon his employment shall cease; otherwise, his retention in the service shall be equivalent to his final appointment." W.Va. Code § 8-14-11. This would appear to mean that the officer could be terminated without a hearing. "Not so fast," said the Court in Major. Regardless of the clear legislative intent not to require a hearing for those officers completing their probationary term, the Court found that the probationer, having been employed for a year, had a property interest in continued employment giving rise to certain due process protections. And what "due process" is he entitled to? All the rights set forth in § 8-14-20, of course.

But, in this case, constitutional due process did not come into play because the officer had not completed his probationary term. Instead, §8-14-11 controlled and required the process of §8-14-20 to be afforded. I'm not sure why the Court even cited Major v. DeFrench in the first place, other than to pour salt into old wounds.

1 comment:

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