Conner v. Civil Service Com'n

• Decision Date: 12 June 1985
• Docket Number: No. 16439,16439
• Citation: 331 S.E.2d 858,175 W.Va. 127
• Parties: George E. CONNER v. CIVIL SERVICE COMMISSION for the State of West Virginia, et al.
• Court: West Virginia Supreme Court

Page 858

331 S.E.2d 858

175 W.Va. 127

George E. CONNER v. CIVIL SERVICE COMMISSION for the State of West Virginia, et al.

No. 16439.

Supreme Court of Appeals of West Virginia.

June 12, 1985.

Syllabus by the Court

"Upon judicial review of contested case, circuit court may affirm order or decision of agency or remand case for further proceedings, and shall reverse, vacate, or modify order or decision of agency if substantial rights or petitioner have been prejudiced because administrative findings, inferences, conclusions, decisions, or orders are in violation of constitutional or statutory provisions, or in excess of statutory authority or jurisdiction of agency, or made upon unlawful procedures, or affected by other error of law, or clearly wrong in view of reliable probative and substantial evidence on whole record, or are arbitrary or capricious or characterized by abuse or discretion or clearly unwarranted exercise of discretion." Syl. pt. 2, Shepherdstown Volunteer Fire Dept. v. Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983).

J. Bradley Russell, Asst. Gen., Charleston, for appellant.

Allen & Cline, Michael R. Cline, Charleston, for appellee.

PER CURIAM:

The appellant Civil Service Commission appeals from an order of the Circuit Court of Kanawha County which substantially increased the attorney fee award granted a covered employee who successfully challenged his discharge from $6,272.40, the amount awarded by the CSC, to $12,936.40. The CSC contends that the circuit court erred in departing from an attorney fee schedule duly promulgated by the CSC to govern the award of attorney fees to prevailing employees in CSC cases. We agree, and reverse the decision of the circuit court.

The appellee, George E. Conner, with the assistance of retained counsel, won reinstatement following discharge from his civil service position. Thereafter, the appellee submitted an attorney fee request for 205.4 hours at $85 per hour for a total of $17,836.40. Following its review of this request, the CSC reduced the number of hours compensable to 190.4 and applied its fee schedule of $40 per hour for in-court time and $30 per hour for non-court time for a total of $6,272.40.

The appellee appealed this award to the Circuit Court of Kanawha County, which increased the award as noted to $12,936.40, corresponding to an allowance of $75 per hour for in-court time and $65 per hour for non-court time. The circuit court justified this increase by finding that the appellee's attorney possessed exceptional skill in the administrative law area and exerted an extraordinary effort in his representation of the appellee.

The right of a civil service employee to reimbursement for legal expenses is contained in West Virginia code § 29-6-15 (1977 Replacement Vol.):

If the commission finds that the action complained of was taken by the appointing authority without good cause, the employee shall be reinstated to his former position or a position of like status and pay, without loss of pay for the period of his suspension and awarded his reasonable and necessary attorneys' fees expended therein, such fees to be paid by the appointing authority....

We have previously recognized the importance of providing for reasonable attorney fees in this context. In Orndorff v. West Virginia Department of Health, 165 W.Va. 1, 267 S.E.2d 430, 432 (1980), we said:

One obvious purpose of a provision for reasonable attorney fees is to provide a measure of restitution to a civil service employee who has been wrongfully discharged or suspended and, as a result, forced to hire an attorney to seek redress. Equally apparent is another goal, to provide an inducement to the employee who has been wrongfully discharged to challenge the action since, if successful, he is relieved of the burden of paying reasonable attorney fees.

It should be noted, however, this section provides, not just for attorney fees, but for "reasonable" attorney fees. Obviously, the determination of what is "reasonable" in a particular case is not without difficulty. Therefore, the CSC has promulgated a fee schedule in order to provide both certainty and continuity for attorney fee reimbursement. The Commission draws upon its experience in this area of administrative law and procedure in making this determination. It is acutely aware of the skill and expertise required for participation in this sector of administrative practice. Appellee suggested that the CSC did not comply with proper rule making procedures in setting the fee schedule; however, a careful reading of the record did not disclose any specific noncompliance. Appellee merely set forth the...