State ex rel. Warner v. Jefferson County Com'n
| Decision Date | 13 December 1996 |
| Docket Number | No. 23106,23106 |
| Citation | 198 W.Va. 667,482 S.E.2d 652 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia ex rel. Larry WARNER, Appellant, v. The JEFFERSON COUNTY COMMISSION, Appellee. |
4. As a matter of law, the county commission has a duty and responsibility of financially subsidizing the functions of a county solid waste authority if for no other reason than the interrelationship between these two public agencies dedicated to a common goal of collecting and disposing of the county's solid waste. A part of this financial subsidy is that the payment of general administrative expenses can include reasonable legal fees and expenses. W. Va.Code 22C-4-7(b) (1994).
5. Because a county commission has, at the very least, the implied power to pay the legal fees and expenses of a duly appointed member of the board of directors of the county solid waste authority as general administrative expenses within W. Va.Code 22C-4-7(b) (1994), then providing that the board member satisfies the remaining three-prong test of Powers v. Goodwin, 170 W.Va. 151, 291 S.E.2d 466 (1982), there is a clear legal duty on the part of a county commission to pay the board member's reasonable legal fees and expenses.
Leonard Knee, Bowles Rice McDavid Graff & Love, Charleston, for Appellant.
Herschel H. Rose, III, Rose & Atkinson, Charleston, for Appellee.
1
Larry Warner, the petitioner below and the appellant here, was a duly appointed member of the board of directors of the Jefferson County Solid Waste Authority (hereinafter "JCSWA"), who was indicted and subsequently acquitted of alleged criminal violations associated with the operation of the Jefferson County Landfill. In his successful defense of a multiple count indictment returned against him, he incurred legal fees and expenses of $95,345.56. The appellant filed a writ of mandamus in the Circuit Court of Jefferson County seeking to compel the Jefferson County Commission (hereinafter "County Commission") to pay these fees and
[198 W.Va. 669] expenses. The Circuit Court of Jefferson County denied the writ concluding that the County Commission had no legal duty to pay these fees and expenses. This appeal followed. Because we find that the circuit court erroneously concluded that the County Commission had no legal duty to pay these fees and expenses, we reverse and remand for further proceedings.
Our discussion begins with an analysis of West Virginia's statutory scheme establishing a comprehensive system for the collection and disposal of solid waste and the role of the county commissions in that scheme.
Beginning in 1955, the legislature delegated to each of the county commissions the responsibility for the effective and efficient collection and disposal of solid waste. As an adjunct to that delegation of responsibility, the legislature empowered the county commissions to create and establish county solid waste authorities to perform the tasks necessary for the effective and efficient collection and disposal of solid waste. W. Va.Code 7-16-1 to 7-16-8 (1977) ().
In 1988, the legislature determined that the more effective and efficient manner to address the collection and disposal of solid waste could be accomplished not through the county commissions directly, but by county solid waste authorities working in conjunction with the county commissions. 2 W.Va.Code 22C-4-1 et seq. 3
The three sections of legislation critical to the resolution of this appeal are: W. Va.Code 22C-4-3(b) (); W. Va.Code 22C-4-7(b) (); and W. Va.Code 22C-4-3(a) and -5 (relating to the transfer of the county commission's ownership, operation and maintenance of landfills to the county solid waste authorities).
We know from this record that the Jefferson County Commission owned and operated the county landfill prior to 1989, and in compliance with W. Va.Code 22C-4-3, that ownership was transferred from the County Commission to the JCSWA sometime in 1989.
Although the legislature established this comprehensive solid waste management system operating through the county solid waste authorities, it did not remove county commissions from an active participation in the operation and management of the authorities. For example, a county solid waste authority consists of five members of a board of directors and two of those five members are selected by the county commission. W. Va.Code 22C-4-3 (1994). 4 Additionally, the county commission is responsible for the payment of expenses necessary to the operation of the county solid waste authority, including secretarial and clerical assistance, office supplies and general administrative expenses. W. Va.Code 22C-4-7 (1994).
It is against this backdrop that we analyze the appellant's request for payment of legal fees and expenses.
The appellant was appointed by the Jefferson County Commission to the board of directors of the JCSWA in 1989, the year that the JCSWA began operating the Jefferson County Landfill (hereinafter "Landfill"). Eventually the appellant was elected chairman of the board of directors and he held that position until 1991, when he resigned. The appellant did not receive compensation for his services during his tenure as both member and chairman; however, the statute did allow for reimbursement of his actual expenses incurred during the discharge of his duties. 5
The Landfill was eventually closed by the Division of Environmental Protection, and in 1992, the JCSWA filed a Petition in Bankruptcy in the United States Bankruptcy Court for the Northern District of West Virginia. 6
On April 22, 1992, the appellant was indicted by the grand jury of Jefferson County upon a forty-nine count indictment charging violations relating to the method and manner by which the appellant was responsible for the operation and maintenance of the Landfill. 7 The charges included five counts of falsifying the books of account of the JCSWA under W. Va.Code 61-3-22 (1923); four counts of failing to collect solid waste assessment fees pursuant to W. Va.Code 20-5F-5a (1991)(repealed; amended and currently codified at W. Va.Code 22-15-11 (1994)) & 11-9-6 (1984); four counts of willful failure to maintain records or supply information as an officer of the JCSWA under W. Va.Code 20-5F-5a (1991) () & 11-9-8 (1984); four counts of filing a false or fraudulent return as an officer of JCSWA under W. Va.Code 20-5F-5a (1991)(repealed; amended and currently codified at W. Va.Code 22-15-11 (1994)) & 11-9-10 (1984); and twenty-eight counts of willful or negligent violation of the Solid Waste Management Act under W. Va.Code 20-5F-6 (1991) ().
According to the appellant's Petition for Writ of Mandamus filed in the circuit court, the root of all criminal charges was that the appellant allegedly failed to report and account properly for shredded tires used by the JCSWA. None of the charges alleged that the appellant personally profited in any way from these crimes. Rather, the appellant, in consultation with counsel, determined that the JCSWA could accept used tires, have the tires shredded and then use the tires to cover the landfill on a daily basis as a prophylactic measure to prevent problems such as odors, access to the solid waste by vermin and vectors, and the blowing of waste. 8 The JCSWA used these shredded tires without reporting the usage of the tires or paying the appropriate fees for their use. As a result, the grand jury charged that the Solid Waste Management Act was violated.
All charges in the indictment were presented to a petit jury on August 10, 1993. At the conclusion of the State's case, the trial court granted the defendant's motion for a judgment of acquittal pursuant to West Virginia Rule Criminal Procedure 29(a) as to some of the counts in the indictment because the evidence was insufficient to sustain a conviction. 9 At the conclusion of the defendant's case, the trial court granted a motion for judgment of acquittal pursuant to W. Va. R.Crim. Proc. 29(a) as to all of the remaining counts because the evidence was insufficient to sustain a conviction.
Following the entry of the Judgment of Acquittal, the appellant submitted an invoice to the County Commission in the amount of $95,345.56 representing legal fees and expenses incurred in the defense of his criminal prosecution. The County Commission refused to pay any portion of these legal fees and expenses, resulting in the appellant filing a writ of mandamus in the Circuit Court of Jefferson...
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