Drennan v. Department of Health

• Decision Date: 05 June 1979
• Docket Number: No. 14299,14299
• Citation: 163 W.Va. 185,255 S.E.2d 548
• Court: West Virginia Supreme Court
• Parties: Barbara Sue DRENNEN v. DEPARTMENT OF HEALTH, Willard Erwin, et al., etc., and George L. Pickett, Director, West Virginia Department of Health.

Page 548

255 S.E.2d 548

163 W.Va. 185

Barbara Sue DRENNEN v. DEPARTMENT OF HEALTH, Willard Erwin, et al., etc., and George L. Pickett, Director, West Virginia

Department of Health.

No. 14299.

Supreme Court of Appeals of West Virginia.

June 5, 1979.

Syllabus by the Court

1. The civil service system was established for the salutary purpose of affording to those seeking employment in the classified service equal opportunity of employment, with protection from favoritism, undue interference, political or otherwise, or discrimination and an act contrary to such purpose cannot be countenanced.

2. "A final order of the Civil Service Commission, based upon findings not supported by the evidence, upon findings contrary to the evidence, or upon a mistake of law, will be reversed and set aside by this Court upon review." Guine v. Civil Service Commission of West Virginia et al., 149 W.Va. 461, 141 S.E.2d 364 (1965).

Keith H. Gordon, Summersville, for appellant.

Chauncey H. Browning, Atty. Gen., Gregory W. Bailey, Asst. Atty. Gen., Charleston, for appellees.

CAPLAN, Chief Justice:

This is an appeal by Barbara Sue Drennen from a ruling by a majority of the Civil Service Commission, wherein it was held that "while a memorandum from former gubernatorial assistant, Jack Pauley, could be interpreted as an effort at political influence in favor of Cheryl Gregory, the actual hiring decision of Cheryl Gregory instead of Barbara Sue Drennen was based upon merit." We disagree with such ruling and reverse.

Barbara Sue Drennen, a life-time resident of Nicholas County and a recent graduate in accounting from West Virginia Institute of Technology, expressed an interest in obtaining an accountant position with the State Department of Health. Being informed that it would be necessary to take and pass a civil service test for the position and be certified as eligible on the Civil Service Register, she passed such test and was so certified on the register. An interview was then arranged for November 3, 1977 with Mr. Dave Burkett, the project director for the Early Childhood Development Project, a division of the Department of Health. Although the Director of the Department is the appointing authority, the recommendation of the project director, under whose supervision the employee will serve, is generally followed.

Mr. Burkett interviewed Ms. Drennen on November 3, 1977 and immediately arranged for a further interview for her in Charleston, stating in his testimony that she was "my top choice as far as people that I had interviewed". He further testified that he "would not have made the referral (to the Charleston office) unless I wanted her employed by us." Shortly after the interview on November 3, 1977, Mr. Burkett received a call from Dr. Jack Basman, Director of Maternal and Child Health in the Department of Health. He read a memorandum from Jack L. Pauley of the Governor's Office to Mr. Burkett. The memorandum, in full, follows:

OFFICE OF THE GOVERNOR

Memorandum

TO: Paul Crabtree

FROM: Jack L. Pauley (J.L.P. handwritten initials)

DATE: November 2, 1977

Your assistance in the following matter would be very much appreciated.

Larry Tucker, delegate from Summersville, called today to ask that we help Cheryl Gregory get an accounting position at the Early Childhood Clinic in Summersville, where such vacancy does exist.

Mr. Dave Burkett at the clinic has already interviewed people whose names were on the register Cheryl plans to take the test as soon as possible. Larry wants Dr. Basman of your department to call Dave Burkett and ask that he hold off on the hiring until he receives Cheryl's scores.

The request originated from Boyd Dotson, delegate from Webster County. Cheryl is reportedly very much qualified for the position.

As the result of the above memorandum the interview scheduled in Charleston for Ms. Drennen was cancelled; no appointment was made to fill the vacant position of Accountant I until Cheryl Gregory was permitted to take the civil service test and was certified on the register as being eligible for the position; Cheryl Gregory was hired for the subject position; and, Ms. Drennen was notified that the vacancy in the sought after position no longer existed.

The question thus raised is whether the factual situation related above, with particular reference to the memorandum from the Governor's Office and what transpired thereafter, constitutes a violation of our civil service law.

W.Va.Code, 1931, 29-6-20(c), as amended, reads as follows:

No person shall use or promise to use, directly or indirectly, any official authority or influence, whether possessed or anticipated, to secure or attempt to secure for any person an appointment or advantage in appointment to a position in the classified service, or an increase in pay or other advantage in employment in any such position, for the purpose of influencing the vote or political action of any person, or for any consideration.

Article XVI, Rules and Regulations of the West Virginia Civil Service System provides:

Section 1. Prohibition of Discrimination.

1. No person shall be favored or discriminated against with respect to employment in the classified service because of his political or religious opinions or affiliations, race, national origin, Or other nonmerit factors. This prohibition shall apply to recruitment, examination, Appointment, training, promotion, demotion, dismissal, and any other personnel action. A person who alleges such discrimination shall have the right of appeal to the Commission in accordance with the provisions of Article XII of these rules.

2. Political Activities Prohibited.

1. No person shall seek or attempt to use any Political endorsement in connection with any appointment in the classified service.

2. No person shall use or promise to use, directly or indirectly, any official authority or influence, whether possessed or anticipated, to secure or attempt to secure for any person An appointment or advantage in appointment to a position in the classified service, or an increase in pay or other advantage in employment in any such position; for the purpose of influencing the vote or political action of any such person, or for any consideration. (Emphasis supplied)

From the above quoted provisions, we feel that the salutary purpose of the civil service system is to afford to those seeking employment in the classified service equal opportunity of employment, with protection from favoritism or discrimination. The appellant here, Ms. Drennen, complains that favoritism was accorded Mrs. Gregory by reason of political influence and interference. This alleged favoritism appeared in the action taken by the Department of Health pursuant to a memorandum from the "Office of the Governor", suggesting that "we help Cheryl Gregory get an accounting position at the Early...