                                                                                 FILED
                                                                               May 1, 2019
                                                                            EDYTHE NASH GAISER, CLERK
No. 17-0971, Chief Justice Walker, Concurring                               SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA


              I concur with the majority; this Court should affirm the circuit court’s order

denying Erin Gibbons and Quenton Burner’s appeal and affirming the final order of the

Martinsburg Police Civil Service Commission. I write separately to clarify my analysis.



              Promotions within the City of Martinsburg Police Department are

competitive, with candidates scored on a one-hundred point scale. Under Martinsburg

Police Civil Service Commission Rule VII, Section 2 (Rule VII), a candidate may earn up

to fifty points based upon their performance on a standard, written examination; forty

points based upon a review of their personnel file; and ten points for their years of service

in the department. Rule VII further subdivides the scoring of a candidate’s personnel file.

Relevant to Petitioners’ appeal, post-secondary education accounts for up to ten points of

the possible forty points awarded based on the contents of a candidate’s personnel file.



              When City of Martinsburg police officers Quenton Burner and Erin Gibbons

sought promotion in late 2016, they were passed over in favor of other candidates with

more post-secondary education. But for the education points awarded to the successful

candidates, Burner and Gibbons would have earned scores high enough for promotion to

sergeant and corporal, respectively.



              The pair grieved the promotional decisions to the Martinsburg Police Civil

Service Commission, challenging the Commission’s consideration of post-secondary
education at promotion. In February 2017, the Commission affirmed its rule and denied

Petitioners’ grievance.



              Petitioners then appealed the Commission’s order to the Circuit Court of

Berkeley County.1 As they had done before the Commission, Petitioners argued that the

Commission’s Rule VII violated the Police Civil Service Act, West Virginia Code

§§ 8-14-16 to 23 (2017) (the Act). The circuit court denied Petitioners’ appeal, reasoning

that consideration of an officer’s educational background was “not directly inconsistent

with the express provisions of the Act which permits consideration of the officer’s

‘experience.’” So, the circuit court denied Petitioners’ appeal and their request for a writ

of mandamus.



              Petitioners’ grievance and appeals—to the Commission, then to the circuit

court, and now to this Court—raise a single question of law: whether the Act authorizes

the Commission to consider post-secondary education at promotion, so that officer-

candidates such as Petitioners may lose promotions they may otherwise deserve to




       1
        See W. Va. Code § 8-14-13a(e) (2017) (“If any applicant is aggrieved by a decision
rendered by the commission under this section, such applicant may, within twenty days of
the date of the commission’s decision, seek judicial review thereof in the circuit court of
the county wherein such municipality is located.”).


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candidates with higher levels of post-secondary education. This Court may reverse the

circuit court’s order affirming the Commission if it was “based upon a mistake of law.”2



                Petitioners’ appeal hinges on West Virginia Code § 8-14-17(b), which states

in pertinent part that “[p]romotions shall be based upon experience and by written

competitive examinations to be provided by the Policemen’s Civil Service Commission[.]”

Petitioners offer two arguments in support of their position that the Commission’s Rule

VII violates that section of the Act. First, that in our prior decision in Morgan v. City of

Wheeling, we stated that the “[A]ct prescribes the sole provisions for appointing police

officers according to merit and fitness . . . . It provides all that is necessary for the

appointment and promotion of the fittest applications.”3 Because § 8-14-17(b) does not

contain the word “education,” Petitioners conclude that Rule VII necessarily conflicts with

the Act. Second, Petitioners assert that the word “experience” cannot include consideration

of an officer-candidate’s educational background because we have previously defined it to

mean “seniority.” 4




       2
         Syl. Pt. 3, Bays v. Police Civil Serv. Comm’n, City of Charleston, 178 W. Va. 756,
364 S.E.2d 547 (1987) (“‘The judgment of a circuit court affirming a final order of a police
civil service commission, upon appeal therefrom as provided by statute, will not be
reversed by this Court unless the final order of the commission was against the clear
preponderance of the evidence or was based upon a mistake of law.’ Syl. pt. 2, In re Appeal
of Prezkop, 154 W.Va. 759, 179 S.E.2d 331 (1971).”) (emphasis added).
       3
           205 W. Va. 34, 40, 516 S.E.2d 48, 54 (1999).
       4
           See Bays, 178 W. Va. at 760, 364 S.E.2d at 551.


                                              3
                These arguments require interpretation of the Act, and specifically

§ 8-14-17(b), to determine the extent of the Commission’s authority to include education

in its assessment of a candidate’s experience at promotion.5 In a different context, this

Court has explained that if a “statute is silent or ambiguous with respect to the specific

issue, the question for the court is whether the agency’s answer is based on a permissible

construction of the statute.”6     Given the Commission’s authority and obligation to

“prescribe and enforce rules and regulations carrying into effect the civil service provisions

of [West Virginia Code Chapter 8, Article 14],”7 I conclude that that explanation applies

equally in this context.



                The Act is silent as to the meaning of “experience” in § 8-14-17(b), so the

question becomes whether the Commission’s answer is based on a permissible construction




       5
         Compare id. at 759, 364 S.E.2d at 550 (“Stated another way, the appellants argue
that the PCSC lacks the authority to establish a passing score for written examinations for
promotions, so that an applicant who fails the written examination is precluded from further
consideration for promotion.”).
       6
          Syl. pt. 4, in part, Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W.
Va. 573, 466 S.E.2d 424 (1995) (“If legislative intent is not clear, a reviewing court may
not simply impose its own construction of the statute in reviewing a legislative rule. Rather,
if the statute is silent or ambiguous with respect to the specific issue, the question for the
court is whether the agency’s answer is based on a permissible construction of the
statute.”).
       7
           W. Va. Code § 8-14-10(1) (2017).


                                              4
of that statute, that is, one which flows rationally from the statute.8 I believe that it is. As

the circuit court reasoned, there is

                [A]mple support for [the Commission’s] position that officers
                with a higher education tend to possess better analytical and
                decision-making skills, better communication skills, and tend
                to draft better reports, warrants, etc. These skills may in turn
                aid an officer in the overall performance of his or her police
                work and interactions with the public in general. The [circuit
                court] further agree[d] with the [the Commission] that higher
                education is a legitimate factor in determining the best
                candidates for promotion to positions where the officer will
                train and supervise other officers.

For those same reasons, I conclude that the Commission’s Rule VII, which considers an

officer’s educational attainment as part of the overall assessment of his experience under

§ 8-14-17(b), is based on a permissible construction of that statute.



                Petitioners’ arguments regarding Morgan v. City of Wheeling and this

Court’s comments in Bays miss the proverbial boat. In Morgan, we held that a city’s

residency requirement did not conflict with the express provisions of the Act, and therefore

was permissible.9 We reasoned that the Act was primary and exclusive with regard to merit



       8
           Appalachian Power Co., 195 W. Va. at 588, 466 S.E.2d at 439.
       9
         Syl. pt. 2, Morgan, 205 W. Va. at 34, 516 S.E. 2d at 48 (“The provisions of the
police civil service act, W.Va.Code §§ 8–14–6—24, which provide for the appointment,
promotion, reduction, removal and reinstatement of all municipal police officers and other
employees of paid police departments of Class I and Class II municipal corporations, are
not exclusive. Therefore, a residency requirement applicable to municipal police officers
which is enacted by a municipal corporation pursuant to W.Va.Code § 8–5–11 (1969) is
valid. The police civil service act, rather, excludes the enactment of only those measures
which are inconsistent with the express provisions of the act.”).


                                               5
and fitness considerations, but that a residency requirement was not related to merit and

fitness and so could not conflict with the Act. That reasoning does not dictate the

conclusion that the Commission’s Rule VII conflicts with the Act, and is, therefore, void.

The Legislature chose not to define “experience,” and the definition adopted by the

Commission is neither irrational nor contrary to the aims of the Act. As such, it would be

very difficult to conclusively state that Rule VII is “inconsistent with the express provisions

of the Act.”10



                  Bays is not Petitioners’ silver bullet, either. There, this Court considered

whether the Charleston Police Civil Service Commission had authority under the Act to

impose a 90/10 pass rate on written examinations for promotion.11 We held that it did not

because the Commission’s rule elevated one promotional consideration—written exam

scores—over the others specified in § 8-14-17, essentially reading the other factors (service

and experience) out of the statute.12 In the course of our analysis, we stated in dicta that a




       10
            Id.
       11
         Bays, 178 W. Va. at 757, 364 S.E.2d at 548 (“That is, the top ninety percent of
those taking the examination would receive passing scores and the bottom ten percent
would fail.”)
       12
          Syl. pt. 2, id. at 756, 364 S.E.2d at 547 (“The Police Civil Service Act, in
particular, W.Va.Code, 8–14–17, as amended, requires that the promotions of individuals
thereunder are to be based upon merit and fitness to be ascertained by competitive written
examination and upon the superior qualifications of the individuals promoted, as shown by
their previous service and experience. One of these test factors, in itself, is not an adequate
determinant of the applicant’s merit and fitness; therefore, it should not be considered to

                                                6
prior version of § 8-14-17 (1969, 1986) “requires promotions under the [Act] to be based

upon merit and fitness as shown by (1) competitive written examination, (2) service, i.e.,

performance appraisal and (3) experience, i.e., seniority.”13 Again, that statement was

dicta; as such, I do not read it to preclude the Commission’s reasonable interpretation of

the term, “experience,” in the amended version of § 8-14-17(b) (2012, 2017).



                I recognize that “a municipality’s powers are strictly construed[.]”14 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]”15 Thus, I believe 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.




the exclusion of the others. Accordingly, regulations of a police civil service commission
which conflict with the statute on this point are void.”).
       13
            Id. at 760, 364 S.E.2d at 551.
       14
         Id. (citing Syl. pt. 2, State ex rel. City of Charleston v. Hutchison, 154 W. Va.
585, 176 S.E.2d 691 (1971)).
       15
            W. Va. Code § 8-14-10(1).


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