Davis, J., concurring:
In this proceeding, the majority has concluded that the Mayor of Beckley has
the exclusive right to determine whether a vacancy exists in the Beckley Police Department.
The majority has also determined that the Policemen's Civil Service Commission (hereinafter
referred to as “the Commission”) has jurisdiction to investigate a complaint involving a
purported vacancy in the Beckley Police Department. I fully concur with both findings by
the majority and the disposition of this case. I have chosen to write separately to emphasize
some matters that I find important to the resolution of the case.
In Syllabus point 3 of State ex rel. City of Huntington v. Lombardo, 149 W. Va.
671, 143 S.E.2d 535 (1965), this Court held, in part, that “[a] police civil service commission
. . . has only such jurisdiction and powers as are conferred upon it by statute. It has no
inherent jurisdiction or powers.” See Syl. pt. 1, Bays v. Police Civil Serv. Comm'n, City of
Charleston, 178 W. Va. 756, 364 S.E.2d 547 (1987). Under the statutes related to the
jurisdiction and powers of the Commission, there is no express or implied authority to
declare a vacancy in a police department. See W. Va. Code § 8-14-6 et seq. In fact W. Va.
Code § 8-14-15 expressly holds that a municipality's “appointing officer shall notify the
policemen's civil service commission of any vacancy in a position which he desires to fill[.]”
The majority has correctly pointed out that, in most instances, the mayor of a municipality
has exclusive authority to declare a vacancy in a police department.
Although the Commission does not have authority to declare a vacancy, it does
have jurisdiction to hold an investigation to determine whether the failure to declare a
vacancy was “made in good faith, not motivated by any political or other improper
objective.” State ex rel. Musick v. Londeree, 145 W. Va. 369, 377, 115 S.E.2d 96, 100
(1960). See e.g., W. Va. Code § 8-14-18 (“No discrimination shall be exercised ... against,
or in favor of, an applicant, eligible, or member of such a paid police department because of
his political or religious opinions or affiliations.”). It must be noted, however, that the
Commission's investigative authority is not a license “to conduct fishing expeditions[.]”
West Virginia Advocates for the Developmentally Disabled v. Casey, 178 W. Va. 682, 685,
364 S.E.2d 8, 11 (1987). Such an investigation must be narrow and confined to the relevant
evidence addressing the single issue of whether the failure to declare a vacancy was made
consistently with the requirements set forth in Musick.