Billings v. Civil Service Commission, 13007

• Decision Date: 02 February 1971
• Docket Number: No. 13007,13007
• Citation: 178 S.E.2d 801,154 W.Va. 688
• Court: West Virginia Supreme Court
• Parties: Mary Ann BILLINGS v. CIVIL SERVICE COMMISSION of West Virginia and John R. Barber, Acting Alcohol Beverage Control Commissioner.

Page 801

178 S.E.2d 801

154 W.Va. 688

Mary Ann BILLINGS v. CIVIL SERVICE COMMISSION of West Virginia and John R.

Barber, Acting Alcohol Beverage Control Commissioner.

No. 13007.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 14, 1971.

Decided Feb. 2, 1971.

Syllabus by the Court

A final order of the Civil Service Commission based upon a finding of fact will not be reversed by this Court upon appeal unless it is clearly wrong.

Burton & Burton, Walter W. Burton, Princeton, for appellant.

Chauncey H. Browning, Jr., Atty. Gen., Dennis R. Vaughan, Jr., Asst. Atty. Gen., Charleston, for appellees.

BROWNING, Judge:

This case is a statutory appeal from a final order of the Civil Service Commission of the State of West Virginia dated August 10, 1970.

The appellant, Mary Ann Billings, was employed by the West Virginia Alcohol Beverage Control Commissioner as a clerk, having begun her employment on September 23, 1963. On September 12, 1969, appellant took a leave of absence for pregnancy and was absent for four weeks. When she returned to work, her division director informed her that 'she would have to train someone else and she would be termination and that the reason for this termination was political.' Claiming that political discrimination became 'so bad,' she did not return to work after October 30, 1969. She was never given any reasons in writing for her 'termination,' the Commissioner taking the position that she resigned rather than having been discharged. Appellant testified that at the time she did not believe she was covered by the Civil Service System and thus did not appeal her 'dismissal' within the thirty-day statutory period.

Prior to all of this, but during appellant's employment, Governor Hulett C. Smith, by executive order dated January 11, 1969, placed Alcohol Beverage Control Commissioner employees under the West Virginia Civil Service System. On July 14, 1969, Governor Arch A. Moore, Jr., by executive order, attempted to remove those employees from the protection of the system. On March 30, 1970, this Court, in State ex rel. Karnes v. Dadisman, W.Va., 172 S.E.2d 561 (1970), held Governor Moore's executive order to be void for reasons set forth in that opinion. On June 30, 1970, this Court, in State ex rel. Clark v. Dadisman, W.Va., 175 S.E.2d 422 (1970), held, Inter alia, that 'terminated' employees were entitled to reinstatement and back pay since they were never legally discharged (not having been given reasons in writing for their discharges).

On July 8, 1970, the appellant herein filed for an appeal with the Civil Service Commission and was granted a hearing to be held on August 10, 1970. On that date, the hearing was held, and the commission entered the order herein complained of. This, in part, was the commission's holding:

The appeal was not timely and properly made in accordance with, and in compliance with the Statutes of the State of West Virginia, Rules and Regulations of the Civil Service Commission of West Virginia and the decisions of the Supreme Court of Appeals of West Virginia. However, the Commission did hear evidence as to the merits of the case, and it was determined that the employee was not, in fact, discharged, but did, in fact, resign her position as Clerk V with the Alcohol Beverage Control Commission and, therefore, was not appealing from a discharge.

IV. DECISION

1. Appeal was untimely.

2. The employee resigned and was not discharged. Appeal denied.

We granted an appeal in this case on October 19, 1970, and, upon appellant's motion to reverse, filed December 12, 1970, briefs of counsel and oral argument on January 13, 1971, the case was submitted for decision.

It will be noted that the decision of the commission was based upon two points, the first being that the appeal was untimely. There is pending in this Court for decision the case of Harris v. Civil Service Commission and sixteen other cases 178 S.E.2d 842, all of which by agreement of counsel were consolidated for decision, in which the sole issue is whether there was a timely appeal to the commission. That question will be dealt with extensively in the opinion of the Court when it is handed down, and, in view of the position of the Court upon the second finding of the commission, we do not consider it necessary to discuss the issue of timely filing. In other words, the sole issue we are passing upon in this case is whether or not the employee was 'discharged.' Of course, if any employee under civil service resigns or 'abandons' a position under such circumstances that those terms become synonymous, the commission is without authority to reinstate that employee unless the severance of the employee from his or her position was under such circumstances that it violated Code, Chapter 29, Article 6, as amended, the subject of which is civil service, and the Rules and Regulations of the Civil Service Commission. Although not raised in brief or argument by counsel for either of the parties in this case, we deem it necessary to determine what weight, if any, should be given to a finding of fact by the Civil Service Commission.

Code, 29--6--13, as amended, empowers the commission to take evidence and to pass upon that evidence affirming or reversing the decision of the employing authority,

In this regard, compare West Virginia's certainly in the position of an administrative agency whose finding of fact will not be reversed by this Court unless clearly wrong.

In this regard, comparve West Virginia's Administrative Procedures Act, Chapter 29A, and in particular Article 5, Section 4:

(g) The (circuit) court may (upon review) affirm the order or decision of the agency or remand the case for further proceedings. It shall reverse, vacate, or modify the order or decision of the agency if the substantial rights of the petitioner * * * have been prejudiced because the administrative findings, inferences, conclusions, decision or order are:

(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record * * * (Emphasis added.)

And, as stated in Guine v. Civil Service Commission, 149 W.Va. 461, 141 S.E.2d 364 (1965):

The principle is well established by the decisions of this Court that an order of an administrative body based upon a finding of facts which is contrary to the evidence, or is not supported by the evidence, or is based upon a mistake of law, will be reversed and set aside by this Court upon review.

Conversely, this Court has recognized that an order of the Public Service Commission 'based upon evidence to support it is not subject to judicial interference upon review by this Court.' Atlantic Greyhound Corp. v. Public Service Commission, 132 W.Va. 650, 54 S.E.2d 169 (1949). See also, United Fuel Gas Co. v. Public Service Commission, 143 W.Va. 33, 99 S.E.2d 1 (1957); Walk v. State Compensation Commissioner, 134 W.Va. 223, 58 S.E.2d 791 (1950); Town of Harrisville v. Public Service Commission, 103 W.Va. 526, 138 S.E. 99 (1927); City of Huntington v. Public Service Commission, 101 W.Va. 378, 133 S.E. 144 (1926); Pittsburgh & West Virginia Gas Co. v. Public Service Commission, 101 W.Va. 63, 132 S.E. 497 (1926). Upon this authority, we now hold specifically that this Court will not reverse a finding of fact by the Civil Service Commission unless it is contrary to the evidence or is based upon a mistake of law. In other words, the finding must be clearly wrong to warrant our 'judicial interference.'

In appraising the evidence in this case, we must consider the situation that prevailed at the time the appellant ceased to be an employee of the Alcohol Beverage Control Commissioner. The present Governor...