InRe: Reitter
Annotate this Case
September 1992 Term
___________
No. 21174
___________
IN RE: PETITION TO REMOVE HARRY REITTER,
LARRY T. MAIN, PAT BUTTO, JR., AND
ROBERT PAYSEN, AS MEMBERS OF THE
BROOKE COUNTY SOLID WASTE AUTHORITY
LARRY T. MAIN, AS MEMBER OF THE BROOKE
COUNTY SOLID WASTE AUTHORITY,
Appellant
SILVIO PAESANI, ET AL.,
Appellees
___________________________________________________
Appeal from the Circuit Court of Brooke County
Honorable John T. Madden, Callie Tsapis
and Daniel B. Douglass, Judges
Civil Action No. 91-C-236-JS
REVERSED, IN PART;
AFFIRMED, IN PART
___________________________________________________
Submitted: September 8, 1992
Filed: November 13, 1992
Paul T.Tucker
Jeffrey A. Holmstrand
Rhonda L. Wade
Bachmann, Hess, Bachmann & Garden
Wheeling, West Virginia
Attorneys for the Appellant
Mark B. Chernenko
William E. Watson & Associates
Wellsburg, West Virginia
Frank Cuomo, Jr.
Wellsburg, West Virginia
Attorneys for the Appellees
CHIEF JUSTICE McHUGH delivered the Opinion of the Court.
SYLLABUS BY THE COURT
Under W. Va. Code, 20-9-3 [1991], members of a solid waste authority shall not receive compensation for their services thereon, except for actual expenses incurred in the discharge of their duties. Therefore, an employer of a member of a solid waste authority may not be reimbursed for the wages and benefits paid to that board member while he or she is performing duties for the solid waste authority during his or her scheduled hours of employment with the employer.
McHugh, Chief Justice:
The respondents, Larry T. Main, Pat Butto, Jr., Robert
Paysen and Harry Reitter, seek review of the order of a three-judge
panel removing Mr. Main as a member of the Brooke County Solid
Waste Authority for official misconduct, and granting the other
respondents' motion for summary judgment insofar as they were not
found guilty of official misconduct.See footnote 1 Upon review of the record
before us, we conclude that the order should be reversed, in part,
and affirmed, in part.
I
The respondents were appointed members of the Brooke
County Solid Waste Authority (hereinafter "BCSWA"). One of the
petitioners, Silvio Paesani, was also an appointed member of the BCSWA.
At a meeting of the BCSWA held in the spring of 1991,
respondent Main, then chairman of the BCSWA, submitted a letter to
the members of the BCSWA from his employer, the Brooke County
Health Department (hereinafter "health department"). In that
letter, the administrator of the health department, John W.
Bertram, sought reimbursement for the wages and benefits paid to
respondent Main while he was performing duties for the BCSWA during
his scheduled office hours at the health department.See footnote 2 The majority
of the members of the BCSWA voted to reimburse the health
department in compliance with Mr. Bertram's request,See footnote 3 while
petitioner Paesani voted against paying the health department with
BCSWA funds and asserted that there was no provision authorizing
such a reimbursement. On May 27, 1991, the BCSWA issued a check to
the health department in the amount of $1,643.50.
Thereafter, the petitioners filed a petition pursuant to
W. Va. Code, 6-6-7(a) [1985],See footnote 4 in which they assert that W. Va.
Code, 20-9-3 [1991]See footnote 5 does not allow members of the BCSWA to receive
compensation for their services, and sought to have the respondents
removed as members of the BCSWA on the grounds that the approval
and issuance of the check to the health department for
reimbursement of wages paid to respondent Main constituted official
misconduct and malfeasance in office.
Pursuant to W. Va. Code, 6-6-7(c) [1985], the impaneling
of a three-judge court consisting of Judge Callie Tsapis, Judge of
the First Judicial Circuit, Judge Daniel B. Douglass, Judge of the
Fourth Judicial Circuit, and Judge John T. Madden, Judge of the
Second Judicial Circuit, was ordered by this Court.
Both parties ultimately filed motions for summary
judgment, and the parties appeared for argument before the three-judge panel on October 31, 1991. The three-judge panel
subsequently granted the petitioners' motion for summary judgment
with respect to the removal of respondent Main on the grounds of
official misconduct, but denied the petitioners' motion for summary
judgment with respect to the other respondents. The three-judge
panel further granted the respondents' motion for summary judgment
with respect to respondent Reitter, respondent Butto and respondent
Paysen, holding that these members "simply made a mistake in a
discretionary vote on the reimbursement check in issue[.]"
The respondents appeal the decision of the three-judge
panel, asserting that respondent Main was not guilty of official
misconduct sufficient to warrant his removal from office, that
there was insufficient evidence as a matter of law to support his
removal, and that genuine issues of material fact existed which
precluded summary judgment. The respondents seek to have the order
of the three-judge panel vacated, and to have respondent Main
reinstated.See footnote 6
II
We shall first address the issue of whether the BCSWA was
authorized to reimburse the health department for wages and
benefits paid to respondent Main while he was performing his duties
for the BCSWA during his scheduled work hours at the health
department. The petitioners contend that W. Va. Code, 20-9-3
[1991] prohibits a member of a solid waste authority board of
directors from receiving reimbursement for duties he or she
performs as a member of the authority. The particular language of
W. Va. Code, 20-9-3 [1991] raised by the petitioners is the
following provision regarding compensation of the board members of
solid waste authorities: "The members of the board shall receive
no compensation for their service thereon but shall be reimbursed
for their actual expenses incurred in the discharge of their
duties."
The language of W. Va. Code, 20-9-3 [1991] clearly
prohibits a board member of a solid waste authority from receiving
compensation for the services he or she performs in the discharge
of his or her duties as a board member. In the case before us,
however, the solid waste authority board reimbursed a public
agency, which was the employer of the chairman of the BCSWA, for
services the chairman performed for the BCSWA during his scheduled
work hours for the public agency. Although respondent Main did not
receive the reimbursement directly, the public agency for which he
worked benefited from the receipt of reimbursement for the wages
and benefits it paid to him while he was performing work for the
BCSWA. In essence, what took place was the shifting of public
funds from one public agency to another. Even though, in the
present case, respondent Main is a public employee of a public
agency, the BCSWA should not have reimbursed that public agency.
Thus, we conclude that, under W. Va. Code, 20-9-3 [1991], members
of a solid waste authority shall not receive compensation for their
services thereon, except for actual expenses incurred in the
discharge of their duties. Therefore, an employer of a member of
a solid waste authority may not be reimbursed for the wages and
benefits paid to that board member while he or she is performing
duties for the solid waste authority during his or her scheduled
hours of employment with the employer.
III
Next we must address whether reimbursing the health
department for wages and benefits received by respondent Main while
he was performing services for the BCSWA established grounds for
removing him from the BCSWA for official misconduct under article
six of chapter six of the West Virginia Code, specifically W. Va.
Code, 6-6-7(a) [1985].
W. Va. Code, 6-6-1 [1931] defines the term "official
misconduct" as including "the willful waste of public funds by any
officer or officers[.]" See Wysong v. Walden, 120 W. Va. 122, 52 S.E.2d 392 (1938). Moreover, misconduct in office was defined by
this Court in syllabus point 2 of Kesling v. Moore, 102 W. Va. 251,
135 S.E. 246 (1926): "Misconduct in office is any unlawful
behavior by a public officer in relation to the duties of his
office, wilful in character."
We also recognized, however, in syllabus point 2 of Smith
v. Godby, 154 W. Va. 190, 174 S.E.2d 165 (1970), that "[t]he remedy
for the removal from office of a public officer is a drastic remedy
and the statutory provision prescribing the grounds for removal is
given strict construction." Moreover, W. Va. Code, 6-6-7 [1985]
requires that, in order to remove a public officer from office, the
charges against the public officer must be established by
satisfactory proof. Smith v. Godby, 154 W. Va. at 199, 174 S.E.2d
at 172. "'To warrant removal of an official pursuant to Code 1931,
6-6-7, clear and convincing evidence must be adduced to meet the
statutory requirement of satisfactory proof.' Syl. pt. 9, Evans v.
Hutchinson, 158 W. Va. 359, 214 S.E.2d 453 (1975)." Syl. pt. 2,
George v. Godby, 174 W. Va. 313, 325 S.E.2d 102 (1984).
Finally, the standard of review of a trial court's
findings was reaffirmed by this Court in syllabus point 1 of George
v. Godby, supra:
'When the finding of a trial court in a
case tried by it in lieu of a jury is against
the preponderance of the evidence, is not
supported by the evidence, or is plainly
wrong, such finding will be reversed and set
aside by this Court upon appellate review.'
Syl. pt. 4, Smith v. Godby, 154 W. Va. 190,
174 S.E.2d 165 (1970).
The record before us indicates that respondent Main
submitted to the board, at one of the BCSWA's meetings, a letter
from his employer seeking reimbursement for wages and benefits paid
to respondent Main while he was performing services for the BCSWA
during his scheduled work hours for the health department.
Respondent Main, as chairman of the BCSWA, did not vote on whether
to authorize the reimbursement. However, three of the four other
board members believed the reimbursement was appropriate.
In determining that respondent Main should be removed
from the BCSWA for official misconduct based upon the reimbursement
to the health department,See footnote 7 the three-judge panel found that the
other members who actually approved the reimbursement "simply made
a mistake in a discretionary vote on the reimbursement check . . .
which hindsight, research, and legal opinion indicates was wrong,
but only after checking an Ethics Commission RulingSee footnote 8 which they may
have misinterpreted[.]" While the record supports the finding that
the other board members were mistaken in their interpretation of an
advisory opinion of the West Virginia Ethics Commission, there is
no clear and convincing evidence of any unlawful behavior by
respondent Main in the performance of his duties which was willful
in character.See footnote 9
As we pointed out earlier, removal from office is a
drastic remedy and statutory provisions prescribing the grounds for
removal must be strictly construed. Although the BCSWA should not
have reimbursed the health department, we do not find under the
particular facts of this case clear and convincing evidence
indicating that respondent Main was guilty of unlawful behavior in
the performance of his duties which was willful in character.See footnote 10
Therefore, we conclude that the three-judge panel's finding that
respondent Main was guilty of official misconduct should be
reversed.
We would like to emphasize, however, our concern with the
appointment of public employees to agencies such as the BCSWA. The
case before us is a good example of the problems which arise when
a public employee of a public agency is appointed to simultaneously
serve another public agency. Here, a public employee was
performing services for one public agency, the BCSWA, while he was
being paid to work for another public agency, the health
department. There is nothing in the record to indicate that
respondent Main's duties at the health department were related to
his responsibilities at the BCSWA. Yet, in order to reimburse the
health department for the work respondent Main was performing for
the BCSWA while he was scheduled to work for the health department,
the members of the BCSWA and the administrator of the health
department shifted public funds from one agency to another. Funds
for public agencies are limited. One public agency may suffer at
the expense of another public agency if a public employee is
working for both. Obviously, this controversy would have been
avoided if respondent Main, as a public employee, was not appointed
to serve on the board of another public agency.
IV
Thus, for the reasons set forth herein, we conclude that
the finding of the three-judge panel that respondent Main was
guilty of official misconduct should be reversed.See footnote 11 The panel's
finding that the other respondent members of the BCSWA were not
guilty of official misconduct should be affirmed.See footnote 12
Reversed, in part;
affirmed, in part.
Footnote: 1 Although the three-judge panel granted the motion for
summary judgment to the extent that respondent Reitter, respondent
Butto and respondent Paysen were not guilty of official misconduct,
it denied the motion in all other respects.
Footnote: 2 The bill also included such expenses as photocopying
costs.
Footnote: 3 As chairman of the BCSWA, Mr. Main did not take part in
the vote.
Footnote: 4 W. Va. Code, 6-6-7(a) [1985] provides:
(a) Any person holding any county, school
district or municipal office, including the
office of member of a board of education and
the office of magistrate, the term or tenure
of which office is fixed by law, whether the
office be elective or appointive, except
judges of the circuit courts, may be removed
from such office in the manner provided in
this section for official misconduct,
malfeasance in office, incompetence, neglect
of duty or gross immorality or for any of the
causes or on any of the grounds provided by
any other statute.
Footnote: 5 W. Va. Code, 20-9-3(b) [1991] provides in relevant part:
"The members of the board shall receive no compensation for their
services thereon but shall be reimbursed for their actual expenses
incurred in the discharge of their duties."
Footnote: 6 The reinstatement of respondent Main is a moot issue
because the term for which he was to serve has expired.
Footnote: 7 The three-judge panel found that respondent Main
indirectly benefited from the payment to the health department.
Footnote: 8 The BCSWA had requested an advisory opinion of the
Ethics Commission as to whether a public employee of the health
department, who is also chairman of the BCSWA, could receive a
salary for serving as the director of the BCSWA. The Ethics
Commission stated that it would not be a violation of the Ethics
Act, specifically, W. Va. Code, 6B-2-5(b)(1), as amended, for the
BCSWA to consider employing its chairman as director of the BCSWA.
The Ethics Commission further stated, however, that the public
employee could not serve as director and chairman of the BCSWA
simultaneously.
Footnote: 9 The standard of proof found by the three-judge panel was
"clear and convincing preponderance" of the evidence.
Footnote: 10 The petitioners maintain that the facts of this case are
"strikingly similar" to Summers County Citizens League, Inc. v.
Tassos, 179 W. Va. 261, 367 S.E.2d 209 (1988). However, in that
case, we were concerned with the pecuniary interests of certain
board of education members in contracts of the board. We held that
"a county officer is 'pecuniarily interested, directly or
indirectly, in the proceeds of any contract or service,' where the
county officer is an employee of a private entity which is the
other party to the contract with the county, whether or not the
county officer is also a shareholder, director or officer of such
private entity." 179 W. Va. at 270, 367 S.E.2d at 218.
Footnote: 11 Insofar as we have found that respondent Main was not
guilty of official misconduct based on the facts stipulated before
the three-judge panel, it is not necessary to remand this case for
further proceedings.
Footnote: 12 Respondent Reitter, respondent Butto and respondent
Paysen assert that the order of the three-judge panel, while not
finding them guilty of official misconduct, leaves them open to
further proceedings. We do not agree. The order of the panel
finding that they were not guilty of official misconduct exonerates
them in this particular matter.
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