*1 Bеing persuaded by the substance of the aforesaid federal imposed upon rule we vacate the sentence and remand the case for a new sentence. Such preceded by sentence shall be pre- disclosure of the sentence to the defendant’s pro- counsel as above 32(c)(3), vided. See rule Federal Rules Criminal Proce- subject dure. The matter rising the rule not constitutional applied dimension such rule will be to this prospectively only. case and foregoing For the reasons the sentence is vacated and the case resentencing is remanded for as above indicat- ed. vacated;
Sentence remаnded with directions resentence. Robert O. Bone Virginia Department West of Corrections
(No. 14391) Decided June *2 appellant. for D. and David B. Cross Bell Charles General, Joseph Attorney Chauncey Browning, C. H. Attorney McCoy, Cometti, Assistant and Frances W. General, appellee. for
Caplan, Justice: Chief Bone, had as a Correctional who served
Rоbert 0. Penitentiary approximately I at the State Officer posi- years, from such one-half was two and May 26, Upon appeal to the Civil Service tion on upheld unanimous in an his dismissal Commission prosecuted. appeal ruling and this report- May Bone evening of 1978 Robert 0. On the penitentiary assigned duty and was ed for at Wheeling pаtient Hospital at Park an inmate formerly, many Virginia. oeea- Wheeling, He had West sions, assigned duty. been However, when reported Mr. Bone to the Admissions desk on this occa- sion, he was informed that the inmate was in a room with another who was not an inmate prison. duty assigned He did not to his but called Commander, Captain Campbell, Shift relаted to him the situation and told him going that he was not perform duty assigned. which he was He told Captain Campbell accept responsi- he would not bility safety patient. of the non-inmate This was perform duty. basis for his refusal Captain told him that he did not have to assume responsibility of the “civilian” duty but that his was to maintain responsibility and assume agаin the inmate. Captain Mr. Bone Campbell’s refused duty direct order to assume his at room. The latter then told Bone coming hospital. Before he Deputy Super- went he related to the *3 intendent, Davis, transpired Mr. what had with Mr. Bone and Mr. Davis told him “to inform Officer Bone at suspended that time duty until he came Monday, May to his office at 8:00 a.m. оn 29th.”
Captain Campbell lobby met Mr. Bone in the hospital and for the third time the latter refused a di- subject rect order to relieve hospital the the Immediately pen- room. thereafter Bone returned itentiary by Deputy where he was Superin- tendent Davis. May 29, 1978, Bobby Leverette, Superinten-
On J. the penitentiary, dent of the a mailed “Lettеr of Dismissal” Bone, stating Mr. to therein that his dismissal was effec- immediately tive due to his misconduct. The letter following: contained the guilty
1. You are of Gross Misconduct. May 17th, you a. On the Shift of 16th and reported duty your post for and took and short- ly you departed post, claiming thereafter that illness. your Superintendent Deputy informed
b. The you report to his have to Shift Commander 17, 1978, early May morning of on office the Superin- you Deputy morning called the that you that Secretary and informed her tendent’s car trouble. because of not be would ap- Deputy Superintendent made another c. The May 24, you date, a pointment with at later Deputy Superinten- again you the called you go- Secretary stated that were dent’s go to the sleep couple of hours and ing to you X-rays. this time left tele- At Doctor Superintendent Deputy the phone number morning, throughout attempted you call busy. phone you outlining ap- A letter was mailed d. instructing you pointment you missed and had Deputy Superintendent’s on office tо be May 29, morning you May 26, 1978, reported Friday night, e. On p.m. duty your and were Shift at 10:20 Wheeling assigned at Park at Hospital institution on inmate from this hospital. was a who you and after You were driven to you duty, arrived, did not relieve the officer you room, you go to rather called did not your to take the and refused Shift Commander post a civilian in the room. because there was explain attempted The Shift Commander you responsible you wee not civil- *4 you your post. to take and still refused ian following petitioner assigns appeal Upon this errors:
(1) finding erred in its that That the Commission guilty gross miscon- 0. Bone was
Robert justified discharge. which duct
257 (2) finding That the Commission in its erred opportunity respond
that notice and required рrocess were not under the due clauses of the state or constitution federal or constitution under the mandate of West Code, Virginia Chapter 29, Article Section 10(11). determining appellant, whether the acts discharged,
which
gross
he was
constituted
misconduct
justifying
discharge,
we must consider
the facts
by
and circumstances
refleсted
the record.
In Thurmond
_
_,
Steele,
(1976),
W. Va.
Upon told Mr. Bone accept responsibil- the “he would not his order because Captain Campbell an- ity personnel”, of the civilian responsi- to the he did not have assume “I said swered security only duty bility. to maintain His per- responsibility Mr. Bone of that inmate.” assume the carry a to out lawful order. in his refusal sisted Regulations governing officer copy A of the Rules Hospital is in record. procedure at included the Outside fully hospital duty guard a as to instruct Such rules duty. procedures during If he should follow the provide problem back- security the rules becomes Bone, penitentiary. having Mr. up from the assistance station, pоsi- assigned his no to refused complain the lack measures. tion to about speak not of a non-inmate the rules do While inmate, being experienced guard, an a room an with per- appellant, testified that he had the who such as fifty sixty hospital duty times, no should have formed situation, especially difficulty coping since with the assistance, if needed. could receive circumstance which It would indeed be unusual penitentiary guard to make his de- permit own would given him. as of an order termination lawfulness safety, charged not guard is Such public also on certain occasions. He is inmates but military position personnel in a similar to that of obey superiors prime is a service. To orders obligation employment flagrant of his and the disobedi- dismissal, ence constitutes substantial cause thereof blatantly unlawful, course, if the order were obey. upon be held blameless his refusal should order was involved in this case and No such unlawful obey employee’s persistent refusal or- lawful superior der of his officer constituted misconduct Service, 2d, warranting Am. Jur. dismissal. See 15 Civil Section 61 appellant, asserting require- Code, 1931, (11), amended,
ments 29-6-10 as of W. Va. followed, deprived were not contends of due process of law under the federal and state constitutions. pertinent part, provides: code section above
Discharge or reduction of these ser- [classified place vice] shall take after person pre- to be or reduced has been sented the reasons for such or with writing, reduction stated in and has been allowed reply writing, a reasonable time to thereto or upon request appear personally reply authority appointing deputy. or his requirements While above statute were not literally met, opinion we are of the the record re- Admittedly, compliance veals substantial therewith. discharged immediately appellant upon his disobedi- ence of a lawful order. This was not a matter of whether incompetent perfоrmance he had been of his du- ties; found, was, it as above a matter miscon- fully duct, of which aware and which he chose to Furthermore, days three later he received in commit. Also, writing, discharge. the reasons for his this letter opportunity reply permitted him an thereto in writ- ing, upon request appear personally reply or authority deputy. appointing appellant, Bone,
This Mr. did not avail himself of the him, proceed by ap- opportunities afforded chose to but pealing his dismissal Civil Service Commission. appeal his letter he characterized his dismissal as above, resulting dispute”. from a “labor As noted we that, disagree with characterization аnd hold there was substantial the circumstances of this requirements quoted compliance of the above statute. deprived
The contention process the state and federal consti- of due of law under process merit. is flexible “[D]ue tutions is also without 260 procedural protections particu-
and calls for such
as thе
Morrissey
Brewer,
lar situation
demands.”
v.
408 U.S.
(1972).
471,
2593,
Necessarily
92 S. Ct.
Once is determined that due question process remains what is due ... due process is flexible and calls for such protections particular as the situation demands. Citing quoting & Restaurant Workers Cafeteria McElroy, Union 367 U.S. 81 S. Ct. 6 L. Ed. (1961), 2d 1230 that court further said: *7 ‘[Cjonsideration procedures process of what due may require any given under set of circum- begin stances must with a determination precise government nature function in- private volved as well as of the interest that by governmental been affected action.’ We are satisfied under the circumstances of this procedures that appellant the of which thе claims deprived constitutionally required. was were not What private the penitentiary interest affected superintendent’s present Certainly action in the case? superintendent’s prevent action appel- did not seeking employment. Although lant other he did say job not what his was Mr. Bone testified before the employеd. commission that he was then precise What was the government nature of the func- tion at the time of the brought incident which on this proceeding? government charged with the re- sponsibility guarding penitentiary inmate and also
261 protecting public. function, urgent This is one very purpose gov- within the for the establishment of a responsibility per- It еrnment. was Mr. Bone’s solemn this function and form this blatant refusal to do so can- Thus, private not be condoned. the nature impaired government interest which has been and the power justifies which has been exercised the conclusion process received all the to which he Lopez, was due. See Goss U.S. 95 S. Ct. (1975). L. Ed. 2d 725 herein,
For the reаsons stated the order of the Civil Commission is affirmed. Service
Affirmed. dissenting: McGraw, Justice, join opinion; respectfully I cannot I Court’s dissent. today
The Court condones an obvious violation of the protections employees afforded to all State law, the classified service this State’s Civil Service upholds summary discharges emplоy- of a State employed ee who has been as a correctional officer at Penitentiary Virginia years. the West for over two W. Va. Code § 29-6-10(11) [1977] reads in material part: grade For or reduction in rank or employees for cause of the classified ser- Discharge vice. or reduction of these place оnly person take after shall to be dis- charged presented or reduced as been with the *8 discharge reasons for such or reduction stated in writing, has a time been allowed reasonable reply writing, upon request in or thereto reply appointing appear personally to the authority deputy. or his The statement оf rea- reply public filed rec- sons and the shall be as the director. ord with
By provision, virtue of employee this in classified supplied service must be written notice of the reasons for his before lawfully dismissed, he can be and also he is entitled period to a reasonable of time to reply charges, or, upon request, to the appear person- ally reply appointing authority deputy. or his provision unequivocally precludes This summary dis- charges such as occurred here and should not have been by tolerated the Civil Service Commission or this Court.
Everyone agrees complied statute was not with in majority, this case but the invoking the doctrine compliance, of substantial refuses to enforce the law and thereby seriously protection weakens afforded State employees by the Civil Service law.
Moreover, majority tacitly approved without analysis regulation of the Civil Service Commission which conflicts with the mandates of the statute. Article Section of the Civil Service regulation Commission provides. Appointing Authority, days
The after notice writing in permanent to a employee stating spe- therefor, may cific any reasons employee dismiss negligent who is or inefficient duties, his perform duties, unfit who is found to be guilty gross misconduct, or who is convicted of any involving crime turpitude. moral Fifteen days required notice shall not be employees certain classes where the Commission holds public formal action that interests are best by withholding notice, served and shall be at the Appointing discretion Authority any class when the cause dismiss- al (Emphasis is supplied.) misconduct. Commission, in its opinion, memorandum being very sensitive legal problem, “[wjhile to this stated that we sanction the dismissal of particular in this situation, we encourage department (of would cor- *9 rections) any future similar situations to effect an suspension by discharge immediate followed with is requirements.” normal my view, allowing summary discharges of classified employees § service in contravention оf W. Va. Code 29-6- 10(11) [1977], general works to purpose defeat of the system Civil Service “to attract to the service of this personnel highest ability State integrity system personnel establishment of a administra- principles tion based on merit and scientific methods governing discipline employees. the ... ... of its civil See, § ...” Furthermore, W. Va. Code 29-6-1 [1977]. majority’s opinion may encourage government other agencies appointing authorities and the Civil Service ignore Commission itself to the clear dictates of the Civil Service law to the substantial Virgin- detriment of West government employees. ia’s Government de- serve better.
As to the merits noting it is worth Department developed of Corrections written Operating “Standard Procedures” to be followed cor- performing security rectional officers duty. rules, however, specific These do not address situa- appellant nor, despite tion which faced the his substan- experience security duty, tial had he never required prisoner been in the same room with a “civilian.” His concern genu- was no doubt legitimate. ine and
I, therefore,
support
believe
record does not
a find-
ing
misconduct
such as would warrant
termina-
appellant’s
employment.
tion of
Accordingly,
ruling
I would reverse
of the Civil
appellant’s
Service Commission and hold
un-
comply
require-
lawful
failure
with the notice
29-6-10(11).
§
See, Synder
ments of W. Va. Code
v. Civil
_
_,
Service Commission
W. Va.