State ex rel. Clark v. Dadisman

• Decision Date: 30 June 1970
• Docket Number: Nos. 12965--12967,s. 12965--12967
• Citation: 154 W.Va. 340,175 S.E.2d 422
• Parties: STATE ex rel. Linzey CLARK v. Ira L. DADISMAN, Jr., etc., et al. STATE ex rel. James TEAL v. Ira L. DADISMAN, Jr., etc., et al. STATE ex rel. Milton S. WOOLWINE, Jr. v. Ira L. DADISMAN, Jr., etc., et al.
• Court: West Virginia Supreme Court

Page 422

175 S.E.2d 422

154 W.Va. 340

STATE ex rel. Linzey CLARK v. Ira L. DADISMAN, Jr., etc., et al.

STATE ex rel. James TEAL v. Ira L. DADISMAN, Jr., etc., et al.

STATE ex rel. Milton S. WOOLWINE, Jr. v. Ira L. DADISMAN, Jr., etc., et al.

Nos. 12965--12967.

Supreme Court of Appeals of West Virginia.

Submitted June 9, 1970.

Decided June 30, 1970.

Syllabus by the Court

1. If a state employee who is properly covered by the civil service system in accordance with provisions of Article 6, Chapter 29, Code, 1931, as amended, and in accordance with the rules and regulations promulgated pursuant to the provisions of Code, 1931, 29--6--8, as amended, is summarily dismissed from his position of employment without having been given a proper notice in writing stating specific reasons for such dismissal, and where it appears that the dismissal apparently was made by a superior pursuant to a mistaken belief that the employee was not covered by the civil service system, the dismissed employee is entitled to be reinstated to his former position, or a position of like status and pay, without loss of pay during the period from the date of his dismissal until the date he is reinstated.

2. 'Mandamus lies to require the discharge by a public officer of a nondiscretionary duty.' Point 3 Syllabus, State ex rel. Greenbrier County Airport Authority v. Hanna, 151 W.Va. 479 (153 S.E.2d 284).

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

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

CALHOUN, Judge:

This case involves three separate proceedings in mandamus instituted in this Court by which the three relators seek, generally speaking, to require the Director of Personnel and the members of the Civil Service Commission of West Virginia to restore the relators to the positions of employment which they severally held with the West Virginia Alcohol Beverage Control Commissioner and from which positions of employment they have been discharged. Because the three mandamus proceedings involve similar factual situations and substantially identical legal questions, by agreement of counsel and consent of this Court, they have been combined for argument, submission and decision.

The combined cases have been submitted for decision on the three several mandamus petitions with attached exhibits, upon a demurrer to the petition filed in behalf of the respondents in each case and upon briefs and oral argument of counsel. The questions presented for decision are questions of law, the pertinent facts being undisputed.

These cases have their background in State ex rel. Karnes v. Dadisman, W.Va., 172 S.E.2d 561. In that case, the Court held that an executive order issued on January 11, 1969, by Honorable Hulett C. Smith, who was then Governor of West Virginia, placing certain employees of the West Virginia Alcohol Beverage Control Commissioner under coverage of civil service, was valid and was not rendered invalid by a subsequent executive order issued on July 14, 1967, by Honorable Arch A. Moore, Jr., the succeeding and present Governor of West Virginia. The effect of the Court's decision in the Karnes case was to hold that the designated employees of the West Virginia Alcohol Beverage Control Commissioner continued without interruption to have the benefits of civil service coverage, in accordance with the laws of this state, from the effective date of the executive order entered by Governor Hulett C. Smith.

It is the contention of counsel for the respondents that the relators, after having been discharged, have failed properly to comply with the provisions of a statute and of a civil service rule which deal, in part, with the procedure for reinstatement by the Civil Service Commission of employees, covered by civil service, who have been improperly discharged from their positions of employment.

Code, 1931, 29--6--13, as amended, contains the following provisions:

'Any employee in the classified service who is dismissed or demoted * * *, may, Within thirty days after such dismissal, * * * appeal to the commission for review thereof. * * *. 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. * * *. Any final action or decision taken or made hereunder shall be subject to review by the supreme court of appeals, if appeal is made within sixty days of the action or decision complained of.' (Italics supplied.)

Article XII, Section 4, Subsection 1 of the West Virginia Civil Service System Rules and Regulations contains the following provision which is similar in import to the provisions of the statute quoted immediately above:

'A permanent employee who is dismissed, * * * Shall have the right to appeal to the Commission not later than 30 days after the effective date of the dismissal, * * *. Such appeal shall be in writing and shall be transmitted to the Director who shall arrange a formal hearing before the Commission within 30 days after receipt of the appeal. * * *. Both the employee and the Personnel Officer of the agency involved shall be notified reasonably in advance of the time and place of the hearing. The employee and an agency official designated by the appointing authority shall have the right to present witnesses and give evidence before the Commission. * * *.' (Italics supplied.)

We are of the opinion that the provisions of the statute and civil service rule quoted immediately above are not decisive of these cases and that they do not preclude the relators from the relief they seek in these proceedings. It is our view that such provisions are intended to apply, primarily at least, to an employee whose employment has been terminated for cause pursuant to the civil service laws, rules and regulations.

In each case the relator charges that the Civil Service Commission, by action reflected by minutes of a meeting of that body held on August 4, 1969, officially declared the validity and efficacy of the executive order issued on July 14, 1969, by Honorable Arch A. Moore, Jr., Governor; that the Civil Service Commission still refuses to recognize that the relator is entitled to the benefits of civil service coverage; that the Alcohol Beverage Control Commissioner did not state in writing any reason for discharging the relator from his position of employment, though it is alleged that the relator was discharged on the basis of an assumption that the executive order issued by Governor Moore removed the relator from the category of employees covered by civil service laws, rules and regulations; and upon the assumption that, therefore, it was lawful and proper to discharge the relator without regard to the provisions of the laws, rules and regulations relating to the civil service system.

It is not disputed that each of the three relators, pursuant to the executive order issued by Governor Smith, was covered by civil service protection afforded to state employees in accordance with the provisions of Article 6, Chapter 29, Code, 1931, as amended, and the rules and regulations of the Civil Service Commission promulgated pursuant to pertinent statutes.

Linzey Clark was employed as a stock handler in the receiving department of the Alcohol Beverage Control Commissioner. On or about October 1, 1969, he was notified of the termination of his employment, to be effective on October 16, 1969, and that he was not covered by civil service. He undertook to appeal to the Civil Service Commission on April 2, 1970.

James Teal was employed as an auditor for the Alcohol Beverage Control Commissioner. On or about July 1, 1969, he was notified of the termination of his employment, to be effective July 15, 1969, and that he was not covered by civil service. He undertook to appeal to the Civil Service Commission on April 1, 1970.

Milton S. Woolwine, Jr., was employed as a cashier for the Alcohol Beverage Control Commissioner. On August 1, 1969, he was notified of the termination of his employment to be effective August 22, 1969, and that he was not covered by civil service. He undertook to appeal to the Civil Service Commission on April 1, 1970.

We deem it pertinent to observe that, in each of the three cases, the employment was terminated after the date of the issuance of the executive order by Governor Moore and before the date of the decision of the Karnes case in which this Court held that Governor Moore's executive order was ineffectual in its purpose to supersede or to nullify the executive order previously issued by Governor Smith. In these circumstances, the Alcohol Beverage Control Commissioner obviously was motivated by an honest but mistaken belief that it was not necessary for him to comply with the laws, rules and regulations pertaining to civil service when he terminated the several positions of employment of the three relators in these mandamus proceedings.

It is undisputed that none of the three relators applied for an appeal to or a hearing by the Civil Service Commission within thirty days from the date of the termination of his employment, though each proceeded with reasonable promptness to apply for such an appeal or a hearing after the date of the decision of the Karnes case. It is obvious, we believe, that until the date of the decision of the Karnes case, both the Alcohol Beverage...