Wood v. Public Employees Retirement
Annotate this CaseJanuary 1994 Term
__________
No. 21694
__________
NORMAN E. WOOD, M.D.,
Petitioner Below, Appellee,
v.
WEST VIRGINIA PUBLIC EMPLOYEES
RETIREMENT SYSTEM, AN AGENCY
OF THE STATE OF WEST VIRGINIA,
Respondent Below, Appellant
________________________________________________
Appeal from the Circuit Court of Marshall County
Honorable John Madden, Circuit Judge
Civil Action No. 92-C-226 M
REVERSED
_________________________________________________
Submitted: May 3, 1994
Filed: July 8, 1994
G. Charles Hughes
Moundsville, West Virginia
Attorney for the Appellee
Mary Blaine McLaughlin
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellant
JUSTICE WORKMAN delivered the Opinion of the Court.
Syllabus
1. "'A writ of mandamus will not issue unless three
elements coexist--(1) a clear legal right in the petitioner to
the relief sought; (2) a legal duty on the part of respondent to
do the thing which the petitioner seeks to compel; and (3) the
absence of another adequate remedy.' Syllabus Point 2, State ex
rel. Kucera v. City of Wheeling, 153 W. Va. 538, 170 S.E.2d 367
(1969)." Syl. Pt. 3, Halstead v. Dials, 182 W. Va. 695, 391 S.E.2d 385 (1990).
2. The mere submission of an affidavit in response to a
request from the West Virginia Public Employees Retirement Board
seeking independent evidence of a public employee's employment,
where credit for retirement purposes is in question, does not
alone constitute credible evidence of employment sufficient to
grant a public employee credit for the period in question.
Workman, Justice:
The West Virginia Public Employees Retirement System
("PERS") appeals from the September 3, 1992, order of the Circuit
Court of Marshall County, directing it to grant the Appellee, Dr.
Norman E. Wood, contributing service credit for the period of
June 1, 1968, through December 31, 1972. After reviewing and
considering the record submitted in conjunction with applicable
law, we conclude that the circuit court's ruling was in error,
and accordingly, we reverse.
In June 1972, Dr. Wood submitted an application for
employment as a full-time physician at the West Virginia
Penitentiary in Moundsville ("penitentiary") to fill a vacancy
created by the retirement of the previous physician,See footnote 1 with whom
he had been associated. While the record is somewhat unclear as
to the actual date on which Dr. Wood became employed as a full-
time prison doctor, Gertrude Campbell, a penitentiary payroll
division employee, stated by affidavit that he first became
employed as a ninety-day exempt employee on July 1, 1972, and was
placed on an original payroll register on December 1, 1972.
Dr. Wood filed a grievance with the West Virginia Education
and State Grievance Board ("Board") on October 17, 1989, based on his belief that the time credited him had been miscalculated to
his detriment.See footnote 2 See W. Va. Code §§ 29-6A-1 to -11 (1992). While
Dr. Wood stated in his grievance, that "[m]y employment at the WV
Penitentiary began in December, 1966," the record reflects that
the only time period in dispute is June 1, 1968, through December
31, 1972.
The stated reason for the denial of Dr. Wood's level I
grievance on November 11, 1989, was the inability to locate
documents or records sufficient to verify the years of employment
in dispute. His level II appeal resulted in a similar denial. A
level III hearing was begun and adjourned on March 9, 1990, for
continuation, but was never completed. Pursuant to the request
of the grievance hearing examiner,See footnote 3 Dr. Wood submitted three affidavits on 0ctober 3, 1990, for the purpose of corroborating
his employment claim. The affidavits submitted were executed by
Ira M. Coiner, former penitentiary warden, Dudley E. Beck, former
purchasing agent at the penitentiary, and Edward Coster, former
penitentiary correctional officer.
On May 8, 1992, Dr. Wood filed a petition seeking a writ of
mandamus with the circuit court, seeking to compel PERS to credit
him with four years of service for retirement purposes. By order
entered on September 3, 1992, the circuit court ruled that Dr.
Wood had met his burden of establishing his employment during the
questioned period, and awarded the writ. PERS appeals from the
circuit court's issuance of the writ, compelling it to award Dr.
Wood credit for the period of June 1, 1968, through December 31,
1972.
The position of PERS is that the circuit court wrongly
concluded that Dr. Wood had met his burden of establishing his
right to the relief sought. Specifically, PERS asserts that the
total lack of credible documentation regarding the questioned
period of employment, combined with Dr. Wood's admission that he
made application for the position as prison doctor in July 1972,
clearly establish that he could not have been an employee of the West Virginia Division of Corrections ("corrections") prior to
July 1, 1972.
Dr. Wood argues that as a public employee, he was required
to participate in the public employees retirement program. See
W. Va. Code § 5-10-17 (1994).See footnote 4 The provision defining those
persons who qualify as public employees states as follows:
'Employee' means any person who serves
regularly as an officer or employee, full
time, on a salary basis, whose tenure is not
restricted as to temporary or provisional
appointment, in the service of, and whose
compensation is payable, in whole or in part,
by any political subdivision, or an officer
or employee whose compensation is calculated
on a daily basis and paid monthly or on
completion of assignment, including
technicians and other personnel employed by
the West Virginia national guard whose
compensation, in whole or in part, is paid by
the federal government: Provided, That
members of the state Legislature, the clerk
of the House of Delegates, the clerk of the
state Senate, employees of the state
Legislature whose term of employment is
otherwise classified as temporary and who are
employed to perform services required by the
Legislature for its regular sessions or
during the interim between regular sessions
and who have been or are so employed during
regular sessions or during the interim
between regular sessions for eight or more
years, members of the legislative body of any political subdivision and judges of the state
court of claims shall be considered to be
employees, anything contained herein to the
contrary notwithstanding. In any case of
doubt as to who is an employee within the
meaning of this article the board of trustees
shall decide the question[.]
W. Va Code § 5-10-2(6) (1994). Dr. Wood reasons that because all
public employees are required to participate in the public
employees retirement program and because he maintains that he
qualifies, by definition, as an employee, therefore, he must
have been employed by the prison during the relevant time
periods. We find this reasoning to be rather circuitous,
especially since the critical issue is whether he in fact was an
employee of the prison during the disputed time period.
The Board disputes Dr. Wood's contention that there is no
evidence that Dr. Wood's position is incorrect. The record
includes a letter, dated December 4, 1972, from Dudley E. Beck,
as the penitentiary business manager who was also one of Dr.
Wood's three affiants, to Ira L. Dadisman, Jr., as personnel
director of the penitentiary, which states, in part:
The Institution is picking up Dr. Norman
F. Wood from Requisition #88. Dr. Wood is a
man of considerable experience, first in
Medical and Surgical procedures and is always
on call. Dr. Wood has acted as standby
physician for Dr. Ashworth, who retired on
July 1, 1972.
During the past four years Dr. Wood
aided Dr. Ashworth at the Institutions [sic]
hospital, standing sick call and during
medical emergencys [sic] therefore, I
respectfully request that we be allowed to start Dr. Wood at the third step being $1120
per month. In considering this, please bear
in mind that he is a professional man with
high standing in the community. (emphasis
supplied)
This document appears to support the Board's position that, prior
to July 1972, any treatment of prisoners by Dr. Wood was done
under private agreement between Drs. Ashworth and Wood and not
pursuant to contractual arrangement between Dr. Wood and the
penitentiary.
Each of the three affidavits submitted by Dr. Wood in
response to the hearing examiner's request is a form "affidavit
for verification of prior service" which merely states that the
affiant is acquainted with Dr. Wood, that the affiant was
employed by corrections from June 1, 1968, to December 31, 1972,
except for Mr. Beck,See footnote 5 and that Dr. Wood "worked for the said
public employer during the above[-] mentioned exact employment
dates." Importantly, not one of the affiants was employed in any
payroll or records capacity with either corrections or PERS.
Moreover, the quoted language from the affidavit does not
actually contain an averment that Dr. Woods was a full-time
penitentiary employee, merely that he performed work for the
penitentiary. The Board does not appear to dispute that Dr. Wood
was on the penitentiary premises during the questioned period,
periodically providing medical services to prisoners. What the Board does dispute, on the basis of no documentation of his
employment with either corrections or PERS prior to December
1972, is that Dr. Woods was an employee of the penitentiary.See footnote 6 We
further note that not one of the affiants was ever presented for
questioning regarding the information stated in the affidavits.
The circuit court apparently succumbed to the circuitous
reasoning of Dr. Wood that because he treated inmates during the
questioned period and because all public employees are required
to contribute to the public employees retirement system, he was
therefore a public employee. This reasoning is flawed for
several reasons. First, the fact that he provided medical care
to prisoners during the questioned time period does not rule out
the possibility of an arrangement between Drs. Ashworth and Wood.
In fact, the only public record concerning Dr. Wood's work for the state during the disputed period is the December 4, 1972,
letter written by Mr. Beck and it references the existence of
just such a backup or "standby" arrangement. Second, the
affidavit testimony submitted on behalf of Dr. Wood is certainly
subject to scrutiny. Because not one of the affiants stated
anything other than a conclusory statement regarding Dr. Wood
having "worked for" the penitentiary during the questioned period
and because not one of them worked in a capacity which would
arguably permit them routine access to employment records, the
affidavit testimony alone does not constitute the required
credible testimony necessary to establish Dr. Wood's employment.
Finally, the evidence submitted by the Board which demonstrated
that Dr. Wood first became a permanent employee for both PERS and
penitentiary payroll purposes on December 1, 1972, is evidence
which directly refutes the claims made by Dr. Wood.
As we stated in Halstead v. Dials, 182 W. Va. 695, 391 S.E.2d 385 (1990),
'A writ of mandamus will not issue
unless three elements coexist--(1) a clear
legal right in the petitioner to the relief
sought; (2) a legal duty on the part of
respondent to do the thing which the
petitioner seeks to compel; and (3) the
absence of another adequate remedy.'
Syllabus Point 2, State ex rel. Kucera v.
City of Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969).
182 W. Va. at 696, 391 S.E.2d at 386, syl. pt. 3. In this case,
Dr. Wood has not demonstrated a clear right to the relief he seeks. The mere submission of an affidavit in response to a
request from the Board seeking independent evidence of a public
employee's employment, where credit for retirement purposes is in
question, does not alone constitute credible evidence of
employment sufficient to grant a public employee credit for the
period in question. In fact, the Board should carefully
scrutinize all such affidavit testimony given its charge of
fiduciary responsibility to oversee the PERS funds. See Dadisman
v. Moore, 181 W. Va. 779, 384 S.E.2d 816 (1988); see generally W.
Va. Code §§ 5-10-1 to -54 (1994).
Under the facts of this case, as presented, we find that Dr.
Wood did not meet his burden of establishing a clear right to the
relief sought. See Syl. Pt. 3, Halstead, 182 W. Va. at 696, 391 S.E.2d at 386. Specifically, Dr. Wood failed to prove that he
qualified as an "employee" under the definition of West Virginia
Code §5-10-2(6) during the questioned time period. Accordingly,
he was not entitled to credit for that time period by PERS.
Based on the foregoing, we hereby reverse the decision of
the Circuit Court of Marshall County.
Reversed.
Footnote: 1The individual previously holding the position as prison
doctor, Dr. Ashworth, retired on July 1, 1972.
Footnote: 2He first became aware of the alleged error on or about
October 13, 1989, when he received a statement identifying the
length of his accumulated service for retirement purposes.
Footnote: 3By memorandum, dated December 14, 198[9], the hearing
examiner advised Dr. Wood:
The West Virginia Public Employees
Retirement System has tried to verify your
prior employment with a former employer and
have been advised by them that their records
are insufficient to supply the information we
need.
According to the Rules and Regulations
of the Board of Trustees of the Public
Employees Retirment [sic] System, if the
participating employer is unable to verify
your prior employment, you must secure two
affidavits of credible persons who worked
with you during the period you were employed
or had personal knowledge of such employment.
We are herewith enclosing two form affidavits
and suggest that you have these completed . .
. .
Footnote: 4West Virginia Code § 5-10-17(a) provides, in pertinent
part, that "[a]ll employees, as defined in section two [§ 5-10-2]
of this article, who are in the employ of a political subdivision
the day preceding the date it becomes a participating public
employer and who continue in the employ of the said participating
public employer on and after the said date shall become members
of the retirement system; and all persons who become employees of
a participating public employer on or after the said date shall
thereupon become members of the system . . . ."
Footnote: 5Dudley Beck stated in his affidavit that he was not
employed by corrections until June 15, 1969.
Footnote: 6The affidavit of Gertrude Campbell, a penitentiary payroll
employee, avers that:
I know Dr. Norman Wood was on the
premises of the West Virginia Penitentiary,
taking care of inmate patients for a period
of time (approximately four years) before he
became an employee of the West Virginia
Penitentiary, Department of Corrections (fka
Department of Public Institutions).
Dr. Wood was first employed by the West
Virginia Penitentiary as a 90 day exempt
employee on 7-1-72 and was appointed from an
original register on 12-1-72. I have no
knowledge of how he was compensated for his
time before this date, however, speculation
at that time was that he was being paid by
Dr. Harold Ashworth. Dr. Ashworth was the
Physician at that time and the only physician
on the payroll.
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