FILED November 9, 2017 released at 3:00 p.m. No. 16-0840 - Robert Matheny, Sheriff of Harrison County EDYTHE NASH GAISER, CLERK v. Lieutenant Gregory Scolapio SUPREME COURT OF APPEALS OF WEST VIRGINIA

Justice Ketchum, dissenting:

In Syllabus Point 6 of Burgess v. Moore,1 this Court incorrectly held that

W.Va. Code § 7-14C-3 (1995) (Repl. Vol. 2006) contemplates two distinct types of

hearings for a deputy sheriff facing discharge, suspension, or reduction in rank or pay. I

would overrule Syllabus Point 6 of Burgess because it is an incorrect statement of law.

The clear language of W.Va. Code § 7-14C-3 contemplates one hearing

before the Civil Service Commission for a deputy sheriff who has been discharged,

suspended, or made subject to reduced rank or pay. It provides, in pertinent part and with

emphasis added, that:

(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. . . . . (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. Subsection (b) above refers to W.Va. Code § 7-14-17 (1996) (Repl. Vol. 2015). It

requires that there be one post-disciplinary hearing before the Civil Service Commission

1 224 W.Va. 291, 685 S.E.2d 685 (2009). for a deputy sheriff who has been discharged, suspended, or made subject to reduced rank

or pay.

Under their plain terms, W.Va. Code § 7-14C-3(b) and W.Va. Code § 7-14­

17 allow only one hearing before the Civil Service Commission when the punitive action

against a deputy sheriff involves discharge, suspension, or reduced rank or pay. Lesser

punitive actions are heard before a hearing board comprised of fellow officers with an

appeal to the Civil Service Commission. W.Va. Code §§ 7-14C-3, -5. In this case, where

the deputy sheriff was suspended, there should have been only one hearing in front of the

Civil Service Commission.

“It is not for this Court arbitrarily to read into a statute that which it does

not say.” Syllabus Point 11, in part, Brooke B. v. Ray.2 Because W.Va. Code § 7-14C-3

and W.Va. Code § 7-14-17 allow only one hearing before the Civil Service Commission

where the deputy sheriff has been discharged, suspended, or made subject to reduced

rank or pay, I would reverse Syllabus Point 6 of Burgess. I dissent.

2 230 W.Va. 355, 738 S.E.2d 21 (2013).