State ex rel. Lambert v. Cortellessi

• Decision Date: 03 November 1989
• Docket Number: Nos. 18958,18907,s. 18958
• Citation: 386 S.E.2d 640,182 W.Va. 142
• Parties: STATE of West Virginia ex rel. Paul LAMBERT, Clerk of the Circuit Court of McDowell County, West Virginia v. George M. CORTELLESSI, President, Jerry K. Horne, Commissioner, and Robert D. Lewis, Commissioner, of the County Commission of McDowell County, West Virginia. STATE of West Virginia ex rel. Sarah N. HALL, Prosecuting Attorney of McDowell County, West Virginia v. George M. CORTELLESSI, President and Commissioner of the County Commission of McDowell County, West Virginia, Jerry K. Horne and Robert D. Lewis, Commissioners of the County Commission of McDowell County, West Virginia. Robert E. PASLEY, Duly Elected Clerk of the County Commission of Wayne County v. Pearl E. BOOTH, Don W. Bias and Billy J. Wellman, as Duly Elected Members of the County Commission of Wayne County, and the County Commission of Wayne County, a Statutory Corporation.
• Court: West Virginia Supreme Court

Page 640

386 S.E.2d 640

182 W.Va. 142

STATE of West Virginia ex rel. Paul LAMBERT, Clerk of the

Circuit Court of McDowell County, West Virginia v. George M. CORTELLESSI, President, Jerry K. Horne, Commissioner, and Robert D. Lewis, Commissioner,

of the County Commission of McDowell

County, West Virginia.

STATE of West Virginia ex rel. Sarah N. HALL, Prosecuting Attorney of McDowell County, West Virginia v. George M. CORTELLESSI, President and Commissioner of the

County Commission of McDowell County, West Virginia, Jerry

K. Horne and Robert D. Lewis, Commissioners of the County

Commission of McDowell County, West Virginia.

Robert E. PASLEY, Duly Elected Clerk of the County

Commission of Wayne County v. Pearl E. BOOTH, Don W. Bias and Billy J. Wellman, as Duly

Elected Members of the County Commission of Wayne

County, and the County Commission of

Wayne County, a Statutory Corporation.

Nos. 18958, 18907.

Supreme Court of Appeals of West Virginia.

Nov. 3, 1989.

Syllabus by the Court

1. Mandamus lies to compel a county commission to "give due consideration to the duties, responsibilities and work required of the assistants, deputies and employees" of a county officer, as required by W.Va.Code, 7-7-7, as amended, where the county commission has arbitrarily fixed the overall budget of a county officer without having consulted with the county officer as to the amount of funds which is "reasonable and proper" for the performance of the statutory duties of his or her office.

2. "Mandamus is a proper remedy to compel tribunals and officers exercising discretionary and judicial powers to act, when they refuse so to do, in violation of their duty, but it is never employed to prescribe in what manner they shall act, or to correct errors they have made." Syl. pt. 1, State ex rel. Buxton v. O'Brien, 97 W.Va. 343, 125 S.E. 154 (1924).

3. The county commission is expressly granted the power to administer the fiscal affairs of the county by W.Va. Const. art. IX, § 11, and pursuant thereto, the legislature, in W.Va.Code, 7-7-7, as amended, has included the circuit clerk as a county officer whose budget is fixed by the county commission.

4. "Delay alone does not constitute laches; it is delay which places another at a disadvantage." Syl. pt. 3, Carter v. Carter, 107 W.Va. 394, 148 S.E. 378 (1929).

5. Where a county commission arbitrarily fixes a county officer's budget without complying with the provisions of W.Va.Code, 7-7-7, as amended, the county commission is responsible for the county officer's reasonable attorney's fees incurred in a mandamus proceeding to compel compliance with that statute.

Robert L. Godbey, Huntington, for Pearl E. Booth, Don W. Bias, and Billy J. Wellman.

John F. Cyrus, Lockwood, Egnor, Gardner & Cyrus, Huntington, for Robert E. Pasley.

Ben White, II, Princeton, for George M. Cortellessi, Jerry Horne, and Robert Lewis.

Rudolph J. Murensky, II, Murensky and Murensky, Welch, for Paul Lambert, Clerk of Circuit Court, Sarah N. Hall, Pros. Atty.

McHUGH, Justice:

These consolidated appeals raise the issue of when mandamus lies to control a county commission in the exercise of its discretion in fixing the total amount of money to be expended by county officers for staff compensation. By order dated March 24, 1989, this Court summarized our holdings in these appeals to provide prompt guidance to the parties on the budgetary matters involved. We set forth in this opinion in greater detail the reasons for our holdings announced previously, during the 1988-89 fiscal year. Stated succinctly, the rulings of the circuit courts adverse to the county commissions are affirmed, except the ruling in the circuit clerk's case requiring the chief judge of the circuit court to participate in determining the circuit clerk's budgets in the future is reversed, and except the rulings setting the particular amounts of the revised budgets of the circuit clerk and of the prosecuting attorney are reversed and the case involving those two offices is remanded with directions. Upon a petition for rehearing, this Court has decided to modify its March 24, 1989 order with respect to the recovery of reasonable attorneys' fees by the circuit clerk and the county clerk. The Court now holds that the awards of reasonable attorneys' fees are also affirmed.

I.

A. McDowell County--Circuit Clerk

The Clerk of the Circuit Court of McDowell County ("the circuit clerk") requested $90,203 for compensation for the employees of his office for the fiscal year 1988-89, ending June 30, 1989. ¹ The County Commission of McDowell County ("the county commission") appropriated $70,722.00 for compensation for the employees of the circuit clerk's office for the 1988-89 fiscal year. This amount was fifteen percent less than the amount ($83,203.00) appropriated for such compensation for the 1987-88 fiscal year and was about thirty-two percent less than the amount ($104,003.00) appropriated for such compensation for the 1986-87 fiscal year. For the fiscal year 1988-89, the county commission reduced the budget appropriations for all elected county officials, other than the county commission, by about fifteen percent of the 1987-88 amounts. The county commission reduced its own budget for staff compensation for 1988-89 by less than one-half of one percent of the 1987-88 amount. These budget reductions were made in the context of substantial reductions in available funds caused by a dwindling tax base in the county over the past several years. ²

The county commission did not consult with the circuit clerk prior to fixing the budget in order to ascertain the workload and operating needs of the circuit clerk's office. The number of case filings for the first six months of the calendar year 1988 was greater than the filings for the first six months of calendar years 1986 and 1987. The circuit clerk's staff consists of six full-time and no part-time employees.

The county commission appropriated funds for the 1988-89 fiscal year for such items as (1) contingent liabilities based upon pending lawsuits ($87,000.00) ³ and (2) solid waste disposal, originally a nonbudget item ($6,000.00).

B. McDowell County--Prosecuting Attorney

The Prosecuting Attorney of McDowell County ("the prosecuting attorney") requested $166,000.00 for compensation for the employees of that office for the fiscal year 1988-89, ending June 30, 1989. The county commission appropriated $71,400.00 for compensation for the employees of the prosecuting attorney's office for the 1988-89 fiscal year. This amount was slightly in excess of fifteen percent less than the amount ($84,130.00) appropriated for such compensation for the 1987-88 fiscal year and was about twenty-two percent less than the amount ($91,639.00) appropriated for such compensation for the 1986-87 fiscal year. As stated previously, for the fiscal year 1988-89, the county commission reduced the budget appropriations for all elected county officials, other than the county commission, by about fifteen percent of the 1987-88 amounts. As earlier stated, the county commission reduced its own budget for staff compensation for 1988-89 by less than one-half of one percent of the 1987-88 amount. These budget reductions were made in the context of a depressed economy in the county during the past several years.

The county commission did not consult with the prosecuting attorney prior to fixing the budget in order to ascertain the workload and operating needs of the prosecuting attorney's office. The workload and duties of that office for the year in question have been greater than for the corresponding part of the preceding year. The prosecuting attorney's staff usually consists of at least two "part-time" assistant prosecutors--attorneys who are permitted to engage also in the private practice of law--and three legal secretaries.

As stated in the discussion of the circuit clerk's office, the county commission appropriated funds for the fiscal year 1988-89 for items other than the operation of the county offices required by the State Constitution, such as for contingent liabilities based upon pending lawsuits against the county.

C. Wayne County--Clerk of County Commission

The Clerk of the County Commission of Wayne County ("the county clerk") requested $92,976.00 for compensation for the employees of his office for the fiscal year 1988-89, ending June 30, 1989, the same amount as appropriated for 1987-88. The County Commission of Wayne County ("the county commission") appropriated $87,576.00 for compensation for the employees of the county clerk's office for the 1988-89 fiscal year. The $5,400.00 difference between the amount requested by the county clerk, which was the same amount as appropriated for 1987-88, and the amount appropriated by the county commission for 1988-89 represents the difference between the salary ($15,000.00) of a retired employee, the senior deputy clerk with twenty-three years of experience, and the salary ($9,600.00) of the specific employee hired, at "entry level" salary, to perform some, but not all, of the retired employee's duties. The remainder of the retired employee's duties were reassigned to and performed by other employees in the county clerk's office, with an adjustment by the county clerk increasing the total salaries of those employees by the $5,400.00 amount.

The $5,400.00 reduction from the preceding year's budget amount was not part of any across-the-board reduction of all budget requests submitted by the county's constitutional officers; the county commission did not cut the budget request of any of the other such officers because the county commission, based upon recent experience, was expecting a revenue surplus over current expenses. There has been no shortage of funds available to the county commission during the year in question.

The county commission did not consult with the county clerk prior to fixing the budget in order to ascertain the workload and operating needs of the...