State ex rel. Crosier v. Callaghan

• Decision Date: 17 May 1977
• Docket Number: No. 13853,13853
• Citation: 236 S.E.2d 321,160 W.Va. 353
• Court: West Virginia Supreme Court
• Parties: , 23 Wage & Hour Cas. (BNA) 354, 82 Lab.Cas. P 55,105 STATE ex rel. Gerald L. CROSIER et al., Relators, v. David C. CALLAGHAN, Director, Dept. of Natural Resources of West Virginia, Respondents.

Page 321

236 S.E.2d 321

160 W.Va. 353, 23 Wage & Hour Cas. (BNA) 354,

82 Lab.Cas. P 55,105

STATE ex rel. Gerald L. CROSIER et al., Relators, v. David C. CALLAGHAN, Director, Dept. of Natural Resources of West Virginia, Respondents.

No. 13853.

Supreme Court of Appeals of West Virginia.

May 17, 1977.

Syllabus by the Court

1. The West Virginia wage and hour law, W.Va.Code 21-5C, includes all state employees except those specifically excluded by its terms. Public officers are not among those excluded by the definitions in the Act and may be covered.

2. Conservation officers employed by the Department of Natural Resources of the State are employees entitled to the protection and benefits of the state wage and hour law, W.Va.Code 21-5C.

James M. Sprouse, Charleston, for relators.

Chauncey H. Browning, Jr., Atty. Gen., Cletus B. Hanley, Deputy Atty. Gen., Gerald R. Lacy, Asst. Atty. Gen., Charleston, for respondents.

HARSHBARGER, Justice:

Gerald L. Crosier is employed by the West Virginia Department of Natural Resources as a conservation officer. He and one hundred fourteen conservation officers bring this mandamus action to compel the director of the department to pay them for the hours worked in excess of 42 hours per week.

Overtime compensation is governed by the West Virginia wage and hour law, W.Va.Code § 21-5C-1 et seq. It provides that all employees covered by the Act, including state employees, shall be paid for hours they work exceeding 42 hours per week, at time-and-a-half.

The definition of "employee" set out in Code § 21-5C-1(f) is:

(f) "Employee" includes any individual employed by an employer but shall not include: (1) Any individual employed by the United States; (2) any individual engaged in the activities of an educational, charitable, religious, fraternal or nonprofit organization where the employer-employee relationship does not in fact exist, or where the services rendered to such organizations are on a voluntary basis; (3) newsboys, shoeshine boys, golf caddies, pin boys and pin chasers in bowling lanes; (4) traveling salesmen and outside salesmen; (5) services performed by an individual in the employ of his parent, son, daughter or spouse; (6) any individual employed in a bona fide professional, executive or administrative capacity; (7) any person whose employment is for the purpose of on-the-job training; (8) any person having a physical or mental handicap so severe as to prevent his employment or employment training in any training or employment facility other than a nonprofit sheltered workshop; (9) any individual employed in a boys or girls summer camp; (10) any person sixty-two years of age or over who receives old-age or survivors benefits from the social security administration; (11) any individual employed in agriculture as the word agriculture is defined in the Fair Labor Standards Act of 1938, as amended; (12) any individual employed as a fire fighter by the State or agency thereof; (13) ushers in theaters; (14) any individual employed on a part-time basis who is a student in any recognized school or college; (15) any individual employed by a local or interurban motorbus carrier; (16) so far as the maximum hours and overtime compensation provisions of this article are concerned, any salesman, partsman or mechanic primarily engaged in selling or servicing automobiles, trailers, trucks, farm implements, or aircraft if employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles to ultimate purchasers; (17) any employee with respect to whom the United States department of transportation has statutory authority to establish qualifications and maximum hours of service.

There is no lack of specificity in this list of excluded occupations with the exception of those denoted "professional, executive or administrative."

One would therefore conclude that if the Legislature intended to exclude conservation officers (who were not professional, executive or administrative employees) from the ambit of the law, it would have listed them along with employees of the United States, newsboys, shoeshine boys, golf caddies, pin boys and pin chasers, traveling salesmen and outside salesmen, on-the-job trainees, sheltered workshop workers, summer camp employees, social security recipients, agriculture workers, state firemen, theatre ushers, college students, local or interurban bus employees, partsmen or mechanics selling or servicing motor vehicles, farm implements or aircraft; or people working in U.S. department of transportation-controlled occupations. Expressio unis est exclusio alterius.

However, this Court by its decision in State ex rel. Giles v. Bonar, 155 W.Va. 421, 184 S.E.2d 639 (1971), speaking through Judge Calhoun, held that there are workers not covered by the wage and hour law in addition to those specifically excluded by its terms. The Court held that people who were "officers" were not covered, that state policemen ". . . are public officers as distinguished from mere employees," and that if one were a public officer one could not be an employee. It cited State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970) as establishing these criteria for determining officialdom:

1. Is the position created by law?

2. Is the position designated an office?

3. Are the qualifications of the appointee prescribed by law?

4. Are duties, tenure, salary, bond and oath prescribed or required?

5. Has one occupying the position been constituted a representative of the sovereign?

The Court in Giles avoided the wage and hour law simply by styling everyone who by any stretch satisfied the criteria, an officer; and then by saying officers cannot be employees and therefore are not affected by the wage and hour law.

Although the decision quoted the Act, and emphasized the administrative, professional, and executive exclusion, the holding did not turn upon a finding that state policemen were executives, administrators or professionals.

In Carson, one Luther Carson was "Director of Office Services" of the West Virginia State Road Commission and was indicted for violating W.Va.Code § 61-5-5 which prohibits an executive or ministerial officer of the State from receiving, demanding or accepting a bribe. The Court prohibited his trial because it determined he was not an executive or ministerial officer of the State.

The Court majority analyzed our Constitution and statutes, and decided that officers referred to in the bribery law were only those whose offices were created by the Constitution or by statute. It found no Constitutional or statutory provision establishing a "Director of Office Services." And it reasoned that ". . . it is clear that the legislature intended thereafter that when an office was 'created by law' and filled by appointment by the Governor with the advice and consent of the Senate that such officer should be subject to the bribery provision of that section. 154 W.Va. at 411, 175 S.E.2d at 491.

The Court appeared to be saying that people who hold offices as distinguished from jobs were those intended to be covered by the bribery statute. It further acknowledged that "No very satisfactory and comprehensive distinction between an 'officer' and an 'employee' appears in the decisions of our supreme court or in the decisions of other courts. Each case must be determined largely on its own merits." 154 W.Va. at 410, 175 S.E.2d at 490.

The dissent by Judge Calhoun recognized that the term "public officer" is vague, at best, and must be interpreted within the context of each statute in which it is employed. Citing 67 C.J.S. Officers § 2, he noted:

When the term is used in a statute its meaning must be determined by a construction, not only of the particular section in which it is used, but by the statute as a whole and by other statutes of which the particular one forms a part as being in pari materia; and, also, constitutional provisions should be looked to as aids in deciding the question. Furthermore, the wording of particular statutes may be such that the same position may be held to be an office for one purpose and not for another. (Emphasis added.) 154 W.Va. at 421, 175 S.E.2d at 496.

It is interesting to observe that Judge Calhoun, writing for the Court in Giles in 1971, stated that if one were a public officer one could not be an employee; but his dissent in Carson in 1970 noted that one might be an officer for one purpose and not for another.

We believe he was nearly correct in Carson; and to the extent that Giles categorically denies wage and hour protections to any employee who is clothed with some official character or responsibility, we overrule that holding.

We find nothing in the wage and hour law that excludes "officers" as such, unless they also happen to be employed within one of the categories enumerated.

Therefore, we must look to the law to find if these officers are excluded by its terms or by the regulations promulgated by its authority. Of the excluded categories, only those styled "professional, administrative or executive" could possibly apply.

The West Virginia Minimum Wage and Maximum Hours Standards Regulations (February 1, 1977), define the terms in question:

301-6 PROFESSIONAL, ADMINISTRATIVE or EXECUTIVE EMPLOYEE

Any individual employed in a bona fide professional, executive or administrative capacity shall be recorded as exempt if he fulfills the duties of such capacities as defined thusly:

(a) A professional employee is an individual whose primary duty consists of the performance of work:

(1) Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual or physical processes, or

(2) Original and creative in character in a recognized field of...