SER Dept. of Health & Human Res. v. Hess
Annotate this CaseJanuary 1993 Term
_________
NO. 21278
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WEST VIRGINIA DEPARTMENT OF
HEALTH AND HUMAN RESOURCES,
Appellant
V.
WARREN HESS, JOHN MELLINGER AND VICKI BRITNER,
Appellees
__________________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Paul Zakaib, Judge
Civil Action No. 91-AA-193
REVERSED AND REMANDED
____________________________________________________________
Submitted: January 19, 1993
Filed: March 16, 1993
Darrell V. McGraw, Jr.
Attorney General
Charlene A. Vaughan
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellant
James M. Haviland
Crandall, Pyles & Haviland
Charleston, West Virginia
Attorney for the Appellees
JUSTICE MILLER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. W. Va. Code, 29-6A-7, which allows an appeal to the
circuit court within thirty days of receipt of the hearing
examiner's decision, must be read in pari materia with W. Va. Code,
29-6A-2(c), which defines "days" as "working days exclusive of
Saturday, Sunday or official holidays."
2. "'Statutes which relate to the same subject matter
should be read and applied together so that the Legislature's
intention can be gathered from the whole of the enactments.'
Syllabus Point 3, Smith v. State Workmen's Compensation
Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975)." Syllabus
Point 3, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992).
3. W. Va. Code, 59-1-15 (1923), creates a procedure for
the payment of a filing fee by a State agency. Where the fee is
owed by the State, the circuit clerk is required to certify to the
auditor the amount of the filing fee due.
4. W. Va. Code, 29-6A-3(j), requires a grievance
evaluator to determine if the evidence being offered presents a new
grievance. If a new grievance is found to exist, the evaluator can
decide to hear the evidence or rule that the grievant must file a
new grievance, or the parties may consent to such evidence.
5. The term "grievance evaluator" is defined in W. Va. Code, 29-6A-2(j), to mean an "individual authorized to render a decision on a grievance under procedural levels one, two and three as set out in" W. Va. Code 29-6A-4. Thus, the final level of the grievance procedure where alteration of the substance of a grievance under W. Va. Code, 29-6A-3(j), can occur is at Level III.
Miller, Justice:
The West Virginia Department of Health and Human
Resources (Department) appeals a final order of the Circuit Court
of Kanawha County, dated March 14, 1992, dismissing its appeal from
an administrative decision of the West Virginia Education and State
Employees Grievance Board (Board). The circuit court dismissed the
case because: (1) the Department failed to appeal the
administrative decision within the time frame prescribed by W. Va.
Code, 29-6A-7, and (2) the Department failed to pay the circuit
court's filing fee "in advance," as required by W. Va. Code, 59-1-11 (1990). We find that the circuit court erred. Moreover,
because the Department did not have a full and fair opportunity to
rebut the ground on which the grievance was sustained, we reverse
and remand the case for an evidentiary hearing on whether the
Department discriminated against the appellees by showing
"favoritism" to another employee of the Department.See footnote 1
I.
The appellees, Warren Hess, John Mellinger, and Vicki
Britner, are all employed by the Department as probation officers
and are classified under the civil service system as Social Service
Workers III (SSW III).See footnote 2 In May of 1990, the appellees filed
separate grievances, all of which alleged that they perform the
same type of work as probation officers employed by the West
Virginia Supreme Court of Appeals and that they should, therefore,
receive a comparable salary.See footnote 3
At the Level III grievance hearing,See footnote 4 the appellees raised
for the first time the additional allegation that the Department
showed favoritism "toward its probation officer, Michael
McLaughlin, who was being paid $6,000 more per year though his
tenure as a probation officer had been shorter than any of the
appellees." The Commissioner of the Department ruled at the Level
III hearing that the appellees were not entitled to pay comparable
to that of the probation officers employed by the West Virginia
Supreme Court of Appeals. This decision did not address the issue
of whether the Department had practiced "favoritism" in violation
of W. Va. Code, 29-6A-2(h).See footnote 5
The parties agreed to have the Level IV hearing examiner
render a decision based upon the record of the Level III hearing.
The hearing examiner, like the Commissioner at the Level III
hearing, ruled that the appellees were not entitled to pay
comparable to that of probation officers employed by the West
Virginia Supreme Court of Appeals. Although the hearing examiner
recognized that the issue of favoritism had not been raised in any
of the original grievances, she felt that the issue was properly
before her pursuant to W. Va. Code, 29-6A-3(j).
The hearing examiner determined that the appellees had
made a prima facie case of favoritism. Moreover, because the
Department had not articulated any justification for the
differences between Mr. McLaughlin's salary and that of the
appellees, the hearing examiner ruled that it had failed to rebut
the presumption of favoritism. Accordingly, the hearing examiner
ordered the Department to "equalize the salaries of grievants and
Mr. McLaughlin so as to erase any illegal inequality."
The Department then appealed the administrative decision
to the Circuit Court of Kanawha County.See footnote 6 In its appeal, the
Department argued that it was not on notice that favoritism was an
issue in the case. Thus, for the first time and at its first
opportunity, the Department articulated the reasons why Mr.
McLaughlin's salary was higher than that of the three appellees.See footnote 7
In response, the appellees filed a motion to dismiss the appeal on
two grounds. The first was based upon the Department's failure to
file its appeal with the circuit court within thirty days of
receipt of the hearing examiner's decision as required by W. Va.
Code, 29-6A-7. The second ground asserted that the Department had
failed to pay the filing fee "in advance" as required by W. Va.
Code, 59-1-11 (1990).
On March 4, 1992, the circuit court issued an order
granting the appellees' motion to dismiss and directing the
Department to comply with the Board's decision. On May 14, 1992,
the circuit court issued another order clarifying the decision of
the hearing examiner. The circuit court said that the hearing
examiner in her June 13, 1991, order meant to require the
Department to raise the appellees' salaries to that of Mr.
McLaughlin. This conclusion was based upon the language of the
hearing examiner's order that the Department needed to "equalize
the salaries of grievants and Mr. McLaughlin so as to erase any
illegal inequality." The Department appeals both of these orders.
II.
TIMELY APPEAL
Pursuant to W. Va. Code, 29-6A-7, either party may appeal
the decision of a hearing examiner to the circuit court "within
thirty days of receipt of the hearing examiner's decision." In
this case, the hearing examiner's decision was filed on June 13,
1991, and was received by the Department on June 14, 1991. The
Department filed its petition for appeal on July 16, 1991. Because
the Department did not file its petition until thirty-two calendar
days after receipt of the hearing examiner's decision, the
appellees argue that the appeal was untimely.
We note initially that Article 6A of Chapter 29 deals
exclusively with the grievance procedure for state employees. It
contains a definitional section, whereby under W. Va. Code, 29-6A-2(c), "days" are defined as "working days exclusive of Saturday,
Sunday or official holidays." We believe that W. Va. Code, 29-6A-7, which allows an appeal to the circuit court "within thirty days
of receipt of the hearing examiner's decision," must be read in
pari materia with W. Va. Code, 29-6A-2(c), which defines "days" as
"working days exclusive of Saturday, Sunday or official holidays."
This accords with our general rule contained in Syllabus Point 3 of
Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992):
"'Statutes which relate to the same
subject matter should be read and applied
together so that the Legislature's intention
can be gathered from the whole of the
enactments.' Syllabus Point 3, Smith v. State
Workmen's Compensation Commissioner, 159
W. Va. 108, 219 S.E.2d 361 (1975)."
Thus, although thirty-two calendar days elapsed between the
Department's receipt of the hearing examiner's decision and the
filing of its appeal, only twenty-one working days had elapsed
between those dates. Consequently, the Department filed its appeal
within the time limit prescribed in W. Va. Code, 29-6A-7.
III.
FILING FEE
As an alternate ground, the trial court dismissed the
Department's appeal because it failed to pay the filing fee "in
advance" as required by W. Va. Code, 59-1-11 (1990). This
provision states:
"The clerk of a circuit court shall
charge and collect for services rendered as
such clerk the following fees, and such fees
shall be paid in advance by the parties for
whom such services are to be rendered:
"For instituting any civil action
under the rules of civil procedure, any
statutory summary proceeding, any
extraordinary remedy, the docketing of civil
appeals, or any other action, cause, suit or
proceeding, seventy dollars[.]" (Emphasis
added).
The appellees argue that the trial court's ruling was
correct because the word "shall" in the statute creates a mandatory
obligation that the fee be paid in advance. Moreover, the
appellees claim that there is no provision that exempts the State
from paying the filing fee. The Department counters by contending
that such an interpretation places State agencies in an untenable
situation because of the prohibition found in W. Va. Code, 12-3-10
(1923).
Under W. Va. Code, 12-3-10 (1923), it is "unlawful for
any state officer to issue his requisition on the state auditor in
payment of any claim unless an itemized account is filed in the
office of the officer issuing the requisition." Because the
circuit clerk will not file the appeal without the accompanying fee
and the State Auditor will not pay for the service rendered unless
he receives an invoice, the State argues, in essence, that it is
precluded from filing an appeal.
Obviously, the legislature did not intend such a result
and this case is the first we know of in which the State has found
itself trapped on a filing fee issue. Unfortunately, both the
trial court and the parties overlook W. Va. Code, 59-1-15 (1923),
which directly prescribes the proper procedure. It states, in
part: "There shall be paid out of the State treasury to clerks and
sheriffs for services rendered the State in a civil case such fees
as would be chargeable for the like service of an individual, after
such fees are duly certified to the auditor." (Emphasis added).
Thus, W. Va. Code, 59-1-15 (1923), creates a procedure
for the payment of a filing fee by a State agency. Where the fee
is owed by the State, the circuit clerk is required to certify to
the auditor the amount of the filing fee due.See footnote 8 Under this
procedure, when a State agency wishes to file an administrative
appeal or other civil action, the circuit clerk should immediately
provide the agency with a certificate that it can present to the
Auditor for payment. Once payment is received, the circuit clerk
can file the appeal. In situations where the appeal period is very
short, such as appeals from administrative decisions, the clerk
should file the appeal upon its receipt, certify to the Auditor the
amount of the filing fee due, and then process the appeal once
payment is received.
Because of the confusion surrounding the proper procedure
to be followed, and because none of the parties were prejudiced by
the State's delays in paying the filing fee, we find that the trial
court erred in dismissing the Department's appeal.
IV.
GRIEVANCE ISSUE
In her decision, dated June 13, 1991, the Level IV
hearing examiner concluded that the appellants had "made a prima
facie showing that another SSW-III employed by [the Department],
Mike McLaughlin, has been the recipient of favoritism, thereby
raising a presumption thereof, which was not rebutted."
Accordingly, the hearing examiner ordered the Department "to
equalize the salaries of grievants and Mr. McLaughlin so as to
erase any illegal inequality."
The hearing examiner addressed the issue of favoritism
even though the issue had not been raised by the grievants in their
original statements. Specifically, in footnote 11 of her decision,
the hearing examiner acknowledged: "While this contention was not
made in any of the original statements of grievance, it was clearly
raised at the Level III hearing, where no objection thereto was
made, and it was again addressed in Grievants' proposals."
The hearing examiner stated that the Department had "not
articulated any reason whatsoever as to why Mr. McLaughlin's salary
is so much higher than [the appellants']; the record is a complete
blank." Once again, the hearing examiner did concede that the
Department's failure to present any evidence on the issue of
favoritism might have been attributable to the fact that "the issue
was not raised until Level III" and that the Department "may not
have had the opportunity to defend against the charge[s][.]"
Notwithstanding these reservations, the hearing examiner
determined that she had authority to rule on the issue pursuant to
W. Va. Code, 29-6A-3(j), which relates to hearing procedures used
before a grievance evaluator where the evidence substantially
alters the original grievance.See footnote 9 W. Va. Code, 29-6A-3(j), requires
a grievance evaluator to determine if the evidence being offered
presents a new grievance. If a new grievance is found to exist,
the evaluator can "decide to hear the evidence or rule that the
grievant must file a new grievance," or "the parties may consent to
such evidence[.]"
The critical term is "grievance evaluator," which is
defined in W. Va. Code, 29-6A-2(j), to mean an "individual
authorized to render a decision on a grievance under procedural
levels one, two and three as set out in section four [29-6A-4]."
Thus, the final level of the grievance procedure where alteration
of the substance of a grievance under W. Va. Code, 29-6A-3(j), can
occur is at Level III.See footnote 10 See Parsons v. West Virginia Bureau of
Employment Programs, ___ W. Va. ___, ___ S.E.2d ___ (No. 21348
2/25/93).
Here, the grievance theory upon which relief was awarded
at Level IV was based upon a claim of favoritism or disparate pay
levels. Yet, this issue was not developed at the Level III
hearing, as required by W. Va. Code, 29-6A-3(j). We have reviewed
the Level III hearing and can find nothing in the resulting
decision that discusses the presentation of new evidence nor any
decision to incorporate the new issue of favoritism into the
grievance. Moreover, although Michael McLaughlin's salary is
compared to the three appellees' income in the findings of fact,
the Level III evaluator did not reach a conclusion of law on the
favoritism issue.
Accordingly, it was improper for the Level IV hearing
examiner to rule on it. The error was compounded when the
Department attempted to rebut this allegation in its petition for
appeal to the circuit court. Rather than address the appeal on the
merits, the circuit court dismissed the case without giving the
Department an opportunity to defend its actions.
V.
For the reasons stated herein, we reverse the trial
court's March 11, 1992 order and remand the case for further
proceedings consistent with this opinion.
Reversed and remanded.
Footnote: 1The Department further assigns as error the trial court's clarification of the hearing examiner's order dated June 13, 1991. Because we are remanding the case for an evidentiary hearing, we need not address this issue. Footnote: 2Mr. Hess is employed in Berkeley County, Ms. Mellinger in Jackson County, and Ms. Britner in Braxton County. Footnote: 3Ms. Mellinger and Ms. Britner filed their grievances on May 15, 1990, and Mr. Hess on May 22, 1990. The appellees consolidated their actions at the Level III grievance hearing. Footnote: 4The Level III hearing is held before the "chief administrator of the grievant's employing department, board, commission or agency." W. Va. Code, 29-6A-4(c). Footnote: 5W. Va. Code, 29-6A-2(h), defines "favoritism" as "unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of another or other employees." We do not find that the term "favoritism" is meant to supplant the concept of "equal pay for equal work" in W. Va.
Code, 29-6-10 (1992). See American Federation of State, County
and Municipal Employees v. Civil Service Comm'n, 181 W. Va. 8,
380 S.E.2d 43 (1989).
Footnote: 6The parties made a joint motion in the Circuit Courts of
Berkeley, Braxton, and Jackson Counties to remove all three
actions to the Circuit Court of Kanawha County.
Footnote: 7In its appeal, the Department explained that Mr. McLaughlin
had been the chief of police of the Martinsburg Police Department
for twenty years before joining the Department in 1987 as
director of the Martinsburg Juvenile Detention Center. In 1989,
he took a voluntary demotion to assume the position of juvenile
probation officer, requiring him to move to a different
classification and pay grade.
Under 10 W. Va. C.S.R. § 143-1-6.6 (effective May 16,
1991), wherein the Administrative Rules and Regulations of the
West Virginia Civil Service Commission are stated, the current
pay rate of "[a]n employee who is demoted . . . may remain the
same if his pay is within the pay range of the new
classification[.]" The Department asserted that because Mr.
McLaughlin's salary was within the pay range provided for
probation officers, it remained the same when he was functionally
demoted to the classification of juvenile probation officer.
Footnote: 8The mechanics of the State's filing fee payment are spelled
out in the 1993 Practice and Procedure Manual for Circuit Clerk
Officers. In Section 3.3 on page 20 of this Manual, circuit
clerks are instructed as follows: "If a state agency wishes to
file a suit, the clerk should certify to the auditor the filing
fees that are due. When a check is drawn, the case may be
filed."
Footnote: 9The relevant portion of W. Va. Code, 29-6A-3(j), states:
"Once a grievance has been filed,
supportive or corroborative evidence may be
presented at any conference or hearing
conducted pursuant to the provisions of this
article. Whether evidence substantially
alters the original grievance and renders it
a different grievance is within the
discretion of the grievance evaluator at the
level wherein the new evidence is presented.
If the grievance evaluator rules that the
evidence renders it a different grievance,
the party offering the evidence may withdraw
same, the parties may consent to such
evidence, or the grievance evaluator may
decide to hear the evidence or rule that the
grievant must file a new grievance."
Footnote: 10We note that under W. Va. Code, 29-6A-3(k), a change in
the relief sought by a grievant may be granted at Level IV.
However, in this case, it is clear that in this case, there was
not merely a change in relief sought at Level IV.
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