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Montgomery v. West Virginia State Police6/17/2004
The events surrounding the basis for Appellant's discharge, which are essentially undisputed, were summarized by the administrative hearing examiner as follows:
At approximately 7:05 A.M. on Thursday, October 29, 1998, a telephone report was made to the WVSP headquarters that a vehicle was parked behind WVSP headquarters in an odd fashion. The presence of the vehicle was reported to Major (now Lt. Colonel) James S. Powers, who found he could see the cruiser through his office window. He left his office on foot to inspect the vehicle.
That inspection by Major Powers revealed that there was a cruiser, stipulated by the parties to be the white Ford Crown Victoria unmarked cruiser assigned to the Grievant [Appellant], parked with the headlights on, with its engine running, with the driver's side door open, and parked in an informal manner with three of the four wheels off the pavement in the grass. That inspection also revealed that the Grievant was present in the vehicle, sprawled back toward the passenger side door and his feet hanging out the driver[']s side, attired in civilian clothes, apparently asleep or passed out, and unresponsive to Major Powers['] attempt to communicate with him. Major Powers was suspicious that the Grievant was likely intoxicated.
After observing Appellant, Major Powers went in search of Mr. Montgomery's supervisor, Sergeant Rick Theis. Upon locating Sgt. Theis, he informed him of the situation and further indicated he presumed that Appellant was intoxicated. When both Major Powers and Sgt. Theis inquired of Appellant whether he had been drinking, Mr. Montgomery "responded that he had been[,] but that he was okay." Appellant was escorted by Major Powers and Sgt. Theis to the South Charleston detachment building where a valid intoxilyzer test was administered to Mr. Montgomery. The results of this test indicated a blood alcohol level of .169%. *fn1
Approximately an hour and half later, the decision was made to take Appellant into custody and administer a custodial intoxilyzer test as part of a criminal arrest. The arresting officer, Sergeant Seacrist, noted that Appellant "appeared to be drunk, that an odor of alcoholic beverage was on his breath, and that his eyes were bloodshot." The results of the second intoxilyzer test indicated a blood alcohol limit of .157%. Appellant was then charged with the criminal offense of operating a vehicle while under the influence of alcohol in violation of West Virginia Code § 17C-5-2(d) (1996) (Repl. Vol. 2000). After being found guilty by the magistrate court of the criminal offense of DUI, Appellant took an appeal to the circuit court. By order entered on February 3, 2000, the circuit court found Appellant not guilty of driving under the influence. *fn2
The administrative proceeding involving Appellant's discharge began with the issuance of a "Superintendent's Notice of Intent to Discipline" on January 18, 1999, through which the State Police recommended that Appellant be discharged based on two separate grounds. The first charge identified in the notice was "conduct unbecoming a member of the West Virginia State Police," which cited Appellant's arrest for the crime of driving while under the influence of alcohol and using a State Police vehicle. The second charge relied upon to pursue administrative action against Appellant was "engaging in criminal conduct on or off the job" by "operat[ing] a motor vehicle while under the influence of alcohol, in violation of W.Va. Code § 17C-5-2 et seq." Based on both of the charges set forth in the Superintendent's Notice of Intent to Discipline, Appellant was discharged from the State Police on February 16, 1999.
On May 17, 2000, an administrative hearing was
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