Snider v. West Virginia Dept. of Commerce

• Decision Date: 17 February 1994
• Docket Number: No. 21696,21696
• Citation: 190 W.Va. 642,441 S.E.2d 363
• Parties: James SNIDER, Plaintiff Below, Appellee, v. WEST VIRGINIA DEPARTMENT OF COMMERCE, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

Page 363

441 S.E.2d 363

190 W.Va. 642

James SNIDER, Plaintiff Below, Appellee, v. WEST VIRGINIA DEPARTMENT OF COMMERCE, Defendant Below, Appellant.

No. 21696.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 11, 1994.

Decided Feb. 17, 1994.

Syllabus by the Court

"The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syllabus Point 1, Smith v. State Workmen's Compensation Commission, 159 W.Va. 108, 219 S.E.2d 361 (1975).

R. Vance Golden, III, Parkersburg, for appellee.

Darrell V. McGraw, Jr., Atty. Gen., William H. Hill, III, Asst. Atty. Gen., Charleston, for appellant.

PER CURIAM:

This dispute concerns the civil service pay rate of James Snider, an employee of the West Virginia Department of Commerce (hereinafter the Department) at Blennerhassett Historical Park (hereinafter the Park). Effective July 1, 1989, Mr. Snider, an unclassified employee of the Park's Commission with an annual salary of $24,816.00, was transferred to the Department as Building Maintenance Supervisor II, a classified position with an annual salary of $17,316.00. Mr. Snider argues that his transfer to classified service should not drastically reduce his salary because W.Va.Code 29-8-2 [1990], the transfer statute, provides that a transferred employee shall not be "severed, removed or terminated from such employment prior to his entry into the classified service...." The Department maintains that W.Va.Code 29-8-2 [1990] does not require that a transferred employee be paid the same salary that the Park paid before its transfer to the Department and that Mr. Snider's annual salary of $17,316.00 is comparable to similar positions in the Department's Division of Tourism and Parks. Because we find that the diminution of Mr. Snider's salary as a result of his transfer is so great that it constitutes a termination of employment prohibited by W.Va.Code 29-8-2 [1990], we affirm the decision of the circuit court.

On March 15, 1980, Mr. Snider was hired as Director of Operations by the Blennerhassett Park Commission (hereinafter the Commission). In 1980 Mr. Snider was an unclassified state employee with an annual salary of approximately $19,400.00. The Commission, an independent state agency, was established by W.Va.Code 29-8-1 [1975] et seq. to develop Blennerhassett island. In 1989, W.Va.Code 29-8-1 [1989] et seq., was amended to make the Commission advisory and the Commission's employees were transferred to the Department of Commerce.

Currently, the Park consists of: (1) a building in the City of Parkersburg containing a museum, theater, administrative offices and storage space; (2) a five-hundred acre island in the Ohio River about two miles from the City containing a restored mansion, several buildings and various public recreational facilities; and (3) a docking facility and storage yard for the ferry boats used to access the island. A separate public dock near the confluence of the Little Kanawha and Ohio Rivers is used to access the island. The Park employs 10 full-time workers, as many as 16 additional part-time seasonal workers and 50 seasonal volunteers.

Under the Commission, Mr. Snider supervised and performed the Park's maintenance, assisted in the Park's development and construction, maintained and repaired the ferry boats, piloted the ferry boats, and trained other employees. Mr. Snider testified that substantial skill and experience was necessary to maintain and operate the ferries and that approximately half of his time is devoted to operating and maintaining the ferries. Mr. Snider also testified that at various times he supervised at least nine other workers. In its brief, the Department alleges that Mr. Snider does not supervise any other workers. During the summer tourist season, Mr. Snider testified he works between 40 to 70 hours per week. During the off-season, the emphasis of Mr. Snider's work shifts to maintenance and construction. Except for the removal of the Park's planning and construction to the Department's central office, Mr. Snider's job after his transfer remains unchanged.

Effective July 1, 1989, the Commission's employees were transferred from unclassified to classified state employees. W.Va.Code 29-8-2 [1990]. ¹ By letter dated July 6, 1989, the Division of Personnel (hereinafter Personnel) recommended that Mr. Snider be classified as Building Maintenance Supervisor II with an annual salary of $24,816.00, which included the July 1, 1989 state workers' pay raise. However, the Department declined to adopt Personnel's salary recommendation and proposed to pay Mr. Snider an annual salary of $17,316.00. ² Objecting to the reduction in his salary, Mr. Snider filed a grievance that was eventually heard by the West Virginia Education and State Employees Grievance Board (hereinafter the Board). The Board found that after the probationary period, Building Maintenance Supervisor IIs' salaries statewide range from $15,576 to $30,660 with an average salary of $19,650. ³ In contrast, the Department's salary range for Building Maintenance Supervisor IIs is from $15,576 to $19,920 with an average salary of $17,802. ⁴

Mr. Snider maintains that his duties are unique because he must pilot and maintain the island's access boats. However, the Department asserts that the needs of the various state parks determine the responsibilities of the employees classified by the Department as a Building Maintenance Supervisor II and that these responsibilities, although not identical, are similar. ⁵

After the Board decided that Mr. Snider's position should be classified as a Building Maintenance Supervisor II with an annual salary of $17,316, Mr. Snider appealed to the circuit court. The circuit court found "no authority, statutory or otherwise, for reduction in salary for classified state employees" and restored his salary with appropriate back pay. ⁶ Alleging that Mr. Snider's reduction in salary occurred before he became a classified employee, the Department appealed to this Court.

I

In 1989, the Legislature transferred the Commission's employees to the Department by amending W.Va.Code 29-8-2 [1990] to provide, in pertinent part:

All employee positions in the former Blennerhassett historical park commission are hereby transferred to the division of commerce and shall be included in the classified service of the civil service system pursuant to article six [ § 29-6-1 et seq.], chapter twenty-nine of this code. Any person included in the classified service by the provisions of this section who is employed in any of such positions as of the effective date of this amendment [Acts 1989, c. 20: July 1, 1989; Acts 1990, c. 33: June 7, 1990] and reenactment shall not be required to take and pass qualifying or competitive examinations upon or as a condition to being added to the classified service: Provided, That no person included in the classified service by the provisions of this section who is employed in any of such positions as of the effective date of this section [Acts 1975, c. 112, March 7, 1975; Acts 1989, c. 20, July 1, 1989; Acts 1990, c. 33: June 7, 1990], shall be thereafter severed, removed or terminated from such employment prior to his entry into the classified service except for cause as if such person had been in the classified service when severed, removed or terminated. (Emphasis added.)

According to the statute, the Commission's employees should be transferred to the Department and except for cause, should not be "severed, removed or terminated." However, W.Va.Code 29-8-2 [1990] does not provide a clear directive concerning the transferred employees' salaries. "A statute that is ambiguous must be construed before it can be applied." Syllabus Point 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992). As we stated in Syllabus Point 2, Farley, id.:

"The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syllabus Point 1, Smith v. State Workmen's Compensation Commission, 159 W.Va. 108, 219 S.E.2d 361 (1975).

Although there is a paucity of legislative history available to assist in statutory interpretation, Lowell D. Basford, Assistant Director of the Division of Personnel, provided some insight into the meaning of W.Va.Code 29-8-2 [1990]. Mr. Basford testified that, at the request of George E. Farley, the Chairman of the Finance Committee in 1989, he proposed the transfer statute's language that was eventually adopted by the Legislature. At the same time, pursuant to Mr. Farley's request for salary information for the budget bill, Mr. Basford prepared a tentative salary schedule for the transferred employees, indicating the transferred employees would retain their salaries. Mr. Basford acknowledged that he represented to Mr. Farley that under the proposed legislation the transferred employees' new salaries would be "either the same or above their old salaries." ⁷

In M'Culloch v. Maryland, 4 Wheat. 316, 327, 17 U.S. 316, 327, 4 L.Ed. 579, 582 (1819), Chief Justice John Marshall stated, "An unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation." In this case, the Department maintains that the lower classified salary is consistent with other similar positions within its Department. However, by drastically reducing Mr. Snider's salary, the Department in effect gave Mr. Snider a Hobson's choice either to take the reduced salary or to find a new job. The Legislature in the transfer statute foreclosed the Department from severing, removing or terminating the transferred employees.

We find that the Department does not have...