State ex rel. West Virginia Bd. of Ed. v. Miller

• Decision Date: 22 July 1969
• Docket Number: No. 12837,12837
• Citation: 168 S.E.2d 820,153 W.Va. 414
• Parties: STATE ex rel. The WEST VIRGINIA BOARD OF EDUCATION, a Corporation v. Jack L. MILLER, Commissioner of Finance and Administration, State of West Virginia.
• Court: West Virginia Supreme Court

Page 820

168 S.E.2d 820

153 W.Va. 414

STATE ex rel. The WEST VIRGINIA BOARD OF EDUCATION, a Corporation v. Jack L. MILLER, Commissioner of Finance and Administration State of West Virginia.

No. 12837.

Supreme Court of Appeals of West Virginia.

Submitted July 1, 1969.

Decided July 22, 1969.

Syllabus by the Court

'Mandamus lies to control the action of an administration officer in the exercise of his discretion when such action is arbitrary or capricious.' Syllabus, Beverly Grill, Inc. v. Crow, 133 W.Va. 214 (57 S.E.2d 244).

George E. Lantz, Asst. Atty. Gen., William F. Carroll, Asst. Atty. Gen., Charleston, for relator.

Jackson, Kelly, Holt & O'Farrell, John L. McClaugherty, Louis S. Southworth, II, Charleston, for respondent.

BERRY, Judge.

This proceeding in mandamus invoking the original jurisdiction of this Court was instituted by the petitioner, the West Virginia Board of Education, to require the respondent, Jack L. Miller, Commissioner of Finance and Administration, State of West Virginia, to consent to the amendment of petitioner's expenditure schedule for Marshall University, submitted to the respondent for the creation of a new position at Marshall University of 'Director of Finance', fixing the annual and monthly salary to be paid and named the appointee and classification of said position.

On May 26, 1969 a rule was issued by this Court directing the respondent to show cause why a peremptory writ of mandamus should not be awarded against him as prayed for by the petitioner. The matter was submitted for decision of this Court upon arguments and briefs on July 6, 1969.

This case grew out of a recommendation by the President of Marshall University to the petitioner that the position of Director of Finance of Marshall University be created, and that Joseph C. Peters be appointed to that position beginning March 25, 1969 at an annual salary of $18,504 and for $5008 for the remaining three and one-quarter months of the fiscal year. The petitioner approved the recommendation presented to it and the amended expenditure schedule in connection therewith was submitted to the respondent who refused to approve the amended schedule. The amended schedule proposed to transfer $5008 from the item of 'extra help', leaving a balance of $995 in the item, contained in the original expenditure schedule which had been duly submitted and approved by the then Director of Finance and Administration at the time of its submission. The proposed expenditure was within the appropriation made by the legislature for the fiscal year 1968--69.

It is the contention of the petitioner in its petition that under the laws made and provided for in such cases it had the right and duty to employ such personnel and fix the salary therefor within the limits of the appropriation provided for such institution by the legislature of West Virginia, and that it was a ministerial duty of the respondent to consent to such employment and salary fixed by it, as set out in the amended schedule submitted to him, and prayed for this Court to award the writ of mandamus in accordance with the allegations contained in its petition and 'otherwise as to your Honors may seem proper'.

The respondent filed a demurrer and an answer to the petition in which he takes the position that he has the duty to either consent or refuse to consent to the proposed amended schedule of expenditure submitted by the petitioner, and the question of whether he shall elect to consent or refuse to consent involves the exercise of discretion and not the performance of a ministerial duty, and therefore the exercise of such discretion can not be controlled by mandamus.

The reasons given by the respondent for his refusal to consent to the amended schedule of expenditure, which are contained in his answer, are that he compared the proposed salary for the proposed new position of Director of Finance with the salaries of other comparable positions in other state institutions of higher learning and that it was considerably higher in comparison therewith, as shown by an exhibit filed and made a part of his answer, and that the proposed salary was out of line with the salaries of comparable positions, and that in view of the lagging of state revenues the refusal to consent to the payment of the salary for the new position contained in the amended schedule was sound fiscal policy. He further stated that '* * * the respondent conferred with the Governor of the State of West Virginia concerning the proposed amendment of such expenditure schedule in light of the Governor's Executive Order No. 69--1, (sic) issued on January 16, 1969, which in effect ordered a job freeze on all new positions unless the position and salary therefor were approved by the Governor, * * *'. However, it was also stated that 'The Governor advised the respondent that he was in full accord with the respondent's decision to refuse to consent to the proposed amendment of the expenditure schedule in question, but he advised the respondent that so far as the Executive Order was concerned he had no objection to the respondent approving a proposed amendment of the expenditure schedule in question creating the position and establishing the salary at $15,000 per annum.'

The exhibit attached to the answer comparing salaries indicates that business managers and comptrollers of state colleges are paid around $13,000 and that the only two positions involving salaries in which finances are specifically listed after the position are the Vice Presidents of West Virginia University and Marshall University who are paid $27,500 and $19,284 respectively.

It is not disputed that the petitioner had (until July 1, 1969 at which time it was replaced by the Board of Regents) absolute authority to determine the higher educational policies of the state, which includes Marshall University involved in this proceeding. Code, 18--2--5, as amended. The powers given to the petitioner in connection with the matter involved herein are clearly set out in Code, 18--2--13, as amended, and the pertinent provisions read as follows: 'The state board shall have general control, supervision and management of the business and educational affairs of Marshall College, (now Marshall University. See Code, 18--2--13(d), as amended) * * *. The state board shall employ the president or principal, and the professors, teachers and other employees of each of the state educational institutions under its control and management, and shall fix the yearly or monthly salary to be paid to each person so employed.' (emphasis supplied)

It should be noted that Code, 5A--2--34, as amended, provides that the respondent, with the approval of the Governor, shall classify the offices and employments in the state government and its agencies, and shall establish uniform salaries and wage scales within each class except those institutions under the control of the State Board of Education.

The statute directly involved in a decision of this case is Code, 5A--2--15, as amended, which reads as follows:

'The commissioner shall examine the expenditure schedule of each spending unit, and if he finds that it conforms to the appropriations made by the legislature, the requirements of this article, and is in accordance with sound fiscal policy, he shall approve the schedule.

'The expenditure of the appropriations made to a spending unit shall be only in accordance with the approved expenditure unless the schedule is amended with the consent of the commissioner, or unless appropriations are reduced in accordance with the provisions of sections twenty-two to twenty-five ( §§ 5A--2--22 to 5A--2--25), inclusive, of this article.'

It will be noted that the first paragraph of this section makes it mandatory for the Commissioner of Finance and Administration to approve the original expenditure schedule if it is within the appropriations made by the legislature for the spending unit, the requirements of law pertaining thereto, and is in accordance with sound fiscal policy. The second paragraph requires that the expenditure of the appropriations made by the legislature to a spending unit shall be in accordance with the approval of the expenditures in the first paragraph, unless the schedule is amended with the consent of the Commissioner, or unless the appropriations are reduced as provided in Code, 5A--2--22...