       IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                             JANUARY 2019 TERM
                                                                      FILED
                                                                   April 30, 2019
                                                                      released at 3:00 p.m.
                                                                  EDYTHE NASH GAISER, CLERK
                                   No. 17-0971                    SUPREME COURT OF APPEALS
                                                                       OF WEST VIRGINIA




                 QUENTON BURNER AND ERIN GIBBONS,
                      Petitioners Below, Petitioners

                                       V.

         MARTINSBURG POLICE CIVIL SERVICE COMMISSION,
                   Respondent Below, Respondent

        ________________________________________________________

               Appeal from the Circuit Court of Berkeley County
                 The Honorable Christopher C. Wilkes, Judge
                   Civil Action Nos. 17-AA-1 AND 17-AA-2

                               AFFIRMED
        _________________________________________________________

                             Submitted: March 6, 2019
                               Filed: April 30, 2019


Christian K. Riddell                     Cy A. Hill
Stedman & Riddell, PLLC                  Allison M. Subacz
Martinsburg, West Virginia               CIPRIANI & WERNER P.C.
Attorney for Petitioners                 Charleston, West Virginia
                                         Attorneys for Respondent


JUSTICE JENKINS delivered the Opinion of the Court.

JUSTICE ARMSTEAD, deeming himself disqualified, did not participate in the
decision of this case.
JUDGE PAUL T. FARRELL, sitting by temporary assignment.

CHIEF JUSTICE WALKER concurs and reserves the right to file a concurring
opinion.
                            SYLLABUS BY THE COURT



              1.     “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. . . . The police civil service act,

rather, excludes the enactment of only those measures which are inconsistent with the

express provisions of the act.” Syllabus point 2, in part, Morgan v. City of Wheeling, 205

W. Va. 34, 516 S.E.2d 48 (1999).



              2.     “‘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).” Syllabus point 3, Bays v.

Police Civil Service Commission of Charleston, 178 W. Va. 756, 364 S.E.2d 547 (1987).




                                             i
Jenkins, Justice:

              Quenton Burner and Erin Gibbons (collectively “Petitioners”) herein appeal

from the October 3, 2017 order of the Circuit Court of Berkeley County denying

Petitioners’ appeal and petition for writ of mandamus, and affirming the final order issued

by the Martinsburg Police Civil Service Commission (“Commission”).               Petitioners

challenge the circuit court’s holding that the Commission’s awarding points to a candidate

on competitive examination for promotion based on education credentials did not violate

the requirements of the Police Civil Service Act set forth in West Virginia Code §§ 8-14-

6 to 8-14-24 (LexisNexis 2017). Having considered the briefs submitted on appeal, the

appendix record, the parties’ oral arguments, and the applicable legal authority, we find no

error. Accordingly, we affirm the circuit court’s final order.



                                             I.

                    FACTUAL AND PROCEDURAL HISTORY

              On December 10, 2016, Corporal Quenton Burner (“Cpl. Burner”) and PFC

Erin Gibbons (“PFC Gibbons”), both of the Martinsburg Police Department, sat for

competitive examinations for promotions to Sergeant and Corporal, respectively. Under

Rule VII, Section 2 of the Martinsburg Police Commission’s Rules and Regulations,

                    [a]pplicants for promotion shall be graded on a scale of
              a maximum of one-hundred (100) points. This shall consist of
              a maximum of fifty (50) points for the written examination, a
              maximum of forty (40) points for the personnel file review and
              a maximum of ten (10) points shall be based on seniority.


                                             1
With regard to the Personnel File Review, the maximum forty (40) points available for

review of the applicant’s personnel file are given as follows:

              a) Efficiency Rating – A maximum of ten (10) points shall be
                 awarded for review of efficiency rating. The Chief of
                 Police shall submit to the Commission an efficiency rating
                 on each candidate scheduled to take the oral interview.
                 Efficiency ratings may be based on the following:
                 absenteeism, accident rating, character and conduct,
                 attitude, personal appearance, ability to work under
                 pressure and on dangerous assignments, ability to meet and
                 deal with others, ability to organize work, knowledge of
                 duties, laws, ordinances and rules applicable to his/her
                 work, accuracy and attention to pertinent details, emotional
                 stability, leadership and promoting high morale.
              b) Education – A maximum of ten (10) points shall be
                 awarded based on the following:
                    10 points – Post graduate degree from an accredited
                 college or university
                    8 points – Bachelor’s degree from an accredited college
                 or university
                    6 points – 3 years college completed at an accredited
                 institution
                    4 points – 2 years completed or associate degree from
                 an accredited college or university
                    2 points – 1 year college completed at an accredited
                 institution
                    1 point – post-secondary education
              c) Training – A maximum of six (6) points shall be awarded
                 for accredited law enforcement training of an official
                 nature. No points under this section are to be awarded for
                 activities which accrue points under the above education
                 section.
              d) Commendations – A maximum of four (4) points for
                 outstanding performance beyond the call of duty evidenced
                 by the Martinsburg City Council or other police
                 orgovernment entity. A maximum of ten (10) points for
                 special efforts as noted by superiors of rank of Sergeant and
                 above.
              e) Suspensions and Reprimands – The score may be reduced
                 by a maximum of ten (10) points for a final suspension or

                                             2
                  reprimand based upon due process which has occurred in
                  the past five (5) years.


              After the scores were tallied, Cpl. Burner received the third highest score

among the candidates for the two open Sergeant positions, and PFC Gibbons received the

second highest score among the candidates for the one open Corporal position. The

candidate with the highest score on the Sergeant examination received eight education

points for his bachelor’s degree, and the candidate with the second highest score received

ten education points for his master’s degree. Cpl. Burner received two points for his

education. PFC Gibbons received no education points, while the candidate who outscored

him received eight (8) points for his bachelor’s degree. Without the consideration of points

for education, Cpl. Burner and PFC Gibbons would have both finished with sufficient

scores for promotion.



              After receiving their results, both Cpl. Burner and PFC Gibbons requested

review of their scores and a public hearing with the Commission pursuant to West Virginia

Code § 8-14-13a (LexisNexis 2017). On January 27, 2017, the Commission heard their

arguments, through counsel, on the legality of awarding points1 for education.2 The



              1
                 In their brief, Petitioners refer to the points awarded for education as
“additional points.” As explained below, the small amount of points (10 points) set aside
for education credentials is part of the 100-point total. Therefore, it is a mischaracterization
to refer to the education points as “additional” or “bonus.”
              2
                It should be noted that neither Cpl. Burner nor PFC Gibbons contested any
other aspect of the scoring or provision of the Commission’s Rules and Regulations.
                                              3
Commission issued its final order on February 1, 2017, and found “no basis to deviate from

its established rule and modify its prior respective awards for educational efforts as a

component of experience.”



             On February 15, 2017, Petitioners filed an administrative appeal challenging

the decision of the Commission, and also petitioned the Circuit Court of Berkeley County

for a writ of mandamus compelling the Commission to dispense with the awarding of

points for education, and to promote Cpl. Burner and PFC Gibbons to the ranks of Sergeant

and Corporal, respectively. Petitioners argued in their appeal, that under the Police Civil

Service Act, promotions are to be based only on “experience,” which they interpret to mean

seniority, but not education. The Circuit Court of Berkeley County denied the Petitioners’

appeal and petition for writ of mandamus, and affirmed the Final Order issued by the

Commission. This appeal followed.



                                           II.

                              STANDARD OF REVIEW

             As noted above, the issue at hand was decided originally by the Martinsburg

Police Civil Service Commission. In Syllabus point 1 of Appeal of Prezkop, 154 W. Va.

759, 179 S.E.2d 331 (1971), we held that “[a] final order of a police civil service

commission based upon a finding of fact will not be reversed by a circuit court upon appeal

unless it is clearly wrong or is based upon a mistake of law.” This standard was elaborated


                                            4
upon in In re Queen: “[O]ur review of the circuit court’s decision made in view of the

Commission’s action is generally de novo.          Thus, we review the Commission’s

adjudicative decision from the same position as the circuit court.” In re Queen, 196 W. Va.

442, 446, 473 S.E.2d 483, 487 (1996). However, our “[r]eview under this standard is

narrow” and we look to the

              Commission’s action to determine whether the record reveals
              that a substantial and rational basis exists for its decision.
              Marsh v. Oregon Natural Resources Council, 490 U.S. 360,
              376-77, 109 S.Ct. 1851, 1860-61, 104 L.Ed.2d 377, 394
              (1989). We may reverse the Commission’s decision as clearly
              wrong or arbitrary or capricious only if the Commission used
              a misapplication of the law, entirely failed to consider an
              important aspect of the problem, offered an explanation that
              ran counter to the evidence before the Commission, or offered
              one that is so implausible that it could not be ascribed to a
              difference in view or the product of Commission expertise.

Id. With this standard in mind, we now address the issue presented.



                                           III.

                                     DISCUSSION

              Petitioners contend that the Circuit Court of Berkeley County erred when it

found that the Commission’s awarding of points on competitive examination for promotion

to a candidate based on education credentials did not violate the requirements of the Police

Civil Service Act. The Commission’s Rule VII—which describes the allotment of points

for promotions—was enacted under the authority of West Virginia Code § 8-5-11

(LexisNexis 2017), which provides:


                                            5
                      Subject to the provisions of the Constitution of this
              State, the provisions of this article, and other applicable
              provisions of this chapter, any city may by charter provision,
              and the governing body of any municipality, consistent with
              the provisions of its charter, if any, may by ordinance,
              determine and prescribe the officers or positions which are to
              be filled by election, appointment or employment, the number,
              method of selection, tenure, qualifications, residency
              requirements, powers and duties of municipal officers and
              employees, and the method of filling any vacancies which may
              occur.


              Further, this Court has noted:

                      There is no question that W. Va. Code § 8-5-11
              expressly authorizes cities to govern the selection of city
              officers and employees in general which includes the power to
              enact residency requirements. The power delegated to cities
              by W. Va. Code § 8-5-11 is not plenary, however. W. Va.
              Code § 8-5-11 also provides that this power is subject to, inter
              alia, “other applicable provisions of this chapter.”

Morgan v. City of Wheeling, 205 W. Va. 34, 38, 516 S.E.2d 48, 52 (1999).



              In their brief, Petitioners argue that Rule VII of the Commission’s Rules and

Regulations violates the Police Civil Service Act, and that criteria for promotion should be

expressly limited to the considerations listed in West Virginia Code § 8-14-17 (LexisNexis

2017). West Virginia Code § 8-14-17 provides, in full:

                     (a) Vacancies in positions in a paid police department
              of a Class I or Class II city shall be filled, so far as practicable,
              by promotions from among individuals holding positions in the
              next lower grade in the department.


                                               6
        (b) Promotions shall be based upon experience and by
written competitive examinations to be provided by the
Policemen's Civil Service Commission: Provided, That except
for the chief or deputy chiefs of police, if the position of deputy
chief of police has been previously created by the city council
of that Class I or Class II city, no individual is eligible for
promotion from the lower grade to the next higher grade until
the individual has completed at least two years of continuous
service in the next lower grade in the department immediately
prior to the examination: Provided, however, That
notwithstanding the provisions of section six of this article, any
member of a paid police department of a Class I or Class II city
now occupying the office of chief or deputy chief of police of
that paid police department, or hereafter appointed to the office
of chief or deputy chief of police, except as hereinafter
provided in this section, is entitled to all of the rights and
benefits of the civil service provisions of this article, except
that he or she may be removed from the office of chief or
deputy chief of police without cause, and the time spent by the
member in the office of chief or deputy chief of police shall be
added to the time served by the member during the entire time
he or she was a member of that paid police department prior to
his or her appointment as chief or deputy chief of police, and
shall in all cases of removal, except for removal for good cause,
retain the regular rank within that paid police department
which he or she held at the time of his or her appointment to
the office of chief or deputy chief of police or which he or she
has attained during his or her term of service as chief or deputy
chief of police.

       (c) The provisions of this section apply and inure to the
benefit of all individuals who have ever been subject to the
provisions of this article. The commission may determine in
each instance whether an increase in salary constitutes a
promotion.




                                7
               In support of this argument—that criteria for promotion should be expressly

limited to the considerations listed in the statute—Petitioners cite to this Court’s holding

in Dougherty v. City of Parkersburg, 138 W. Va. 1, 76 S.E.2d 594 (1952): “It is the

legislative intendment of the police civil service act . . . to provide for a complete and all-

inclusive system for the appointment, promotion, reduction, removal and reinstatement of

all officers (except the chief of police), policemen and other employees of paid police

departments.” Syl. pt. 5, in part, id.



              This Court, in Collins v. City of Bridgeport, 206 W. Va. 467, 525 S.E.2d 658

(1999), held that the purpose of the Police Civil Service Act is “to guarantee that the public

is served by police officers of the highest merit.” 206 W. Va. at 474, 525 S.E.2d at 665.

“The crux of this system is the adoption of standard criteria and procedures to ensure that

employment decisions affecting police officers are based on their comparative merit and

fitness.” Id. Ultimately, the core of Petitioners’ argument is that the Police Civil Service

Act prevents a municipality3 from awarding points based on candidates’ education

credentials because the provisions of the act governing police promotions are exclusive.4



              3
                Under West Virginia Code § 8-1-2 (LexisNexis 2017), “municipality” is
defined as follows: “Municipality” is a word of art and shall mean and include any Class
I, Class II and Class III city and any Class IV town or village, heretofore or hereafter
incorporated as a municipal corporation under the laws of this State.
              4
                 Petitioners challenge only the consideration of higher education as a
criterion for promotions. It is important to note that Petitioners do not challenge the
Commission’s other criterion under the umbrella of “experience” or any other factor used
in the rubric for promotions.
                                              8
Specifically, Petitioners rely heavily on Bays v. Police Civil Service Commission of

Charleston, 178 W. Va. 756, 364 S.E.2d 547 (1987) to support their contention that the

term “experience” means “seniority,” and that it cannot be interpreted to encompass any

other criteria.



                  In Bays, the Police Civil Service Commission (“PCSC”) published notice of

the vacancies in the City of Charleston’s Police Department and stated that it would, “in

its discretion, set the level of achievement necessary to qualify for promotion.” Bays, 178

W. Va. at 757, 364 S.E.2d at 548. Two days before the competitive written examination,

the PCSC “determined that it would apply a 90/10 percent pass rate. That is, the top ninety

percent of those taking the examination would receive passing scores and the bottom ten

percent would fail.” Id. Once the examinations were graded, the bottom ten percent were

eliminated from further consideration. Conversely, the top ninety percent continued in the

promotion process and proceeded to medical examinations, performance appraisals, and

other considerations. Those officers who scored in the bottom ten percent challenged the

PCSC’s regulation as violative of West Virginia Code § 8-14-17 which “requires

promotions to be based not only upon a consideration of the results of a written examination

but also upon the applicants’ previous service and experience” 178 W. Va. at 758, 364

S.E.2d at 549.



                  The Bays Court found that the PCSC’s “90/10” regulation violated West

Virginia Code § 8-14-17 and held:

                                              9
                     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 the exclusion of others. Accordingly, regulations
              of a police civil service commission which conflict with the
              statute on this point are void.

Syl. pt. 2, 178 W. Va. 756, 364 S.E.2d 547 (emphasis added).



              Petitioners argue that the regulation in the case sub judice is analogous to the

one in Bays. In particular, Petitioners contend that, just as the “90/10” regulation in Bays,

awarding points for education exceeds the authority of a municipality and directly conflicts

with the provisions of the Police Civil Service Act. Because the Legislature failed to define

the term “experience” in the statute, Petitioners take the narrow view that “experience”

means only “seniority” pursuant Bays. 178 W. Va. 756 at 760, 364 S.E.2d 547 at 551.



              In challenging the Commission’s consideration of education credentials as a

component of “experience,” Petitioners further contend that there is no rational basis or

legal precedent in the State to support such an assertion. To support their argument,

Petitioners once again rely on Bays.         According to Petitioners, the definition of

“experience” propounded by the Commission and the circuit court is in direct contradiction

to the definition put forth in Bays. The Bays Court noted that the Police Civil Service Act

                                             10
“requires promotions under the Police Civil Service 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.” Bays, 178 W. Va. at 760, 364 S.E.2d at 551. Because

of this, Petitioners go on to argue that the Bays Court’s use of “i.e.” is of particular

importance because “i.e.” means that is or in other words. On the contrary, “e.g.” would

imply example given or for example. Thus, in the opinion of Petitioners, the use of “i.e.”

signals that the Court unequivocally meant to state that “experience” means seniority, and

nothing else.     Because of this, Petitioners contend that any other interpretation of

“experience” would be in direct contradiction with the Act, and without a proper basis.

                We disagree. Instead, we agree with the position of the Commission, and

its reliance on this Court’s holding in the post-Bays case, Morgan v. City of Wheeling, 205

W. Va. 34, 516 S.E.2d 48 (1999). In Morgan, the appellant police officer sought review

of a decision from the Circuit Court of Ohio County that declared West Virginia Code § 8-

5-11 permitted municipalities to establish            residency requirements for municipal

employees. The Morgan Court determined that the residency requirement issue was

related to the legitimate government purposes for which it was enacted.

                       The provisions of the police civil service act, W. Va.
                Code §§ 8-14-6 [to] 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. . . . The police civil service act, rather, excludes
                the enactment of only those measures which are inconsistent
                with the express provisions of the act.




                                               11
Syl. pt. 2, in part, Morgan, 205 W. Va. 34, 516 S.E.2d 48 (emphasis added). The Morgan

Court then clarified its prior holding in Bays by stating:

                      We disagree with the appellant that the provisions of the
              police civil service act exclude all other selection requirements
              for police officers. At first glance, the language quoted by the
              appellant from decisions of this Court and the act itself appears
              to support the appellant’s position. Closer scrutiny reveals,
              however, that this is not so. This fact is best understood by
              looking at the purpose of the police civil service act. The
              design of the act is to set forth a system for the appointment,
              promotion, reduction, removal and reinstatement of police
              officers which best ensures that these decisions are made
              according to the comparative merit and fitness of police
              officers and not according to personal or political whim. This
              design has the dual result of protecting the job security of those
              police officers who are best qualified while also guaranteeing
              that the public is served by police officers of the highest merit.
              Accordingly, this Court’s characterization of the act as
              complete and all-inclusive means that the act prescribes the
              sole provisions for appointing police officers according to
              merit and fitness. In this regard, the act stands alone. It
              provides all that is necessary for the appointment and
              promotion of the fittest applicants.

Morgan, 205 W. Va. at 39-40, 516 S.E.2d at 53-54 (emphasis in original).



              Here, we do not find that the Commission’s awarding of points for education

is the equivalent to a “screening device” as in Bays. Rather, we find that the awarding of

points for education is a discretionary factor developed by the Commission pursuant to the

authority bestowed upon it by the Police Civil Service Act. Under the Act, municipalities

are given authority to promulgate rules and regulations as long as they are not inconsistent

with the express provisions of the Act. We find little guidance in the statute or the case

law that would expressly require police departments to base promotions solely upon the

                                             12
results of a written exam and the quantity of “experience” without giving any consideration

to the quality of the officer’s “experience.” Rather, the consideration of education when

awarding points for “experience” encourages promotions “according to merit and fitness,”

and is consistent with the purposes of the Police Civil Service Act.



              Additionally, we reject Petitioners’ argument that there is no rational basis

for considering education under the rubric of “experience.” As the circuit court explained,

              there is a rational basis for considering an officer’s education
              level as a component of “experience” as set forth in the Act. . . .
              [O]fficers 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. . . . [H]igher education is a legitimate factor in
              determining the best candidates for promotion to positions
              where the officer will train and supervise other officers.



              The purpose of awarding points for an individual’s education credentials is

to ensure that our State’s police officers are individuals of the highest caliber. Higher

education is not a requirement or a “screening device” devised to eliminate or prevent

candidates from promotions, but rather, higher education is one element of a carefully

planned multi-point system used to promote officers. The Commission is not considering

an individual’s education to the exclusion of seniority, but in tandem as a balance and

complement to the other elements of the rubric. After careful consideration, we find there

is a rational basis for considering an officer’s education and that said consideration under


                                              13
“experience” is not inconsistent or in conflict with the provisions of the Police Civil Service

Act.

              As such, we find that the Berkeley County Circuit Court did not commit

reversible error when it found that the Martinsburg Police Commission’s consideration of

higher education as a component of “experience” under the Police Civil Service Act was

consistent with the Act’s purpose of ensuring meritorious promotions. Having found the

circuit court did not err in upholding the Commission’s decision, the Petitioners’ request

for a writ of mandamus and an award of attorney’s fees is denied as moot.



                                             IV.

                                      CONCLUSION

              For the reasons set forth above, we affirm the October 3, 2017 order of the

Circuit Court of Berkeley County denying Petitioners’ appeal and petition for writ of

mandamus and affirming the final order issued by the Martinsburg Police Civil Service

Commission dated February 1, 2018.


                                                                                   Affirmed.




                                             14
