Walker v. West Virginia Ethics Com'n
| Decision Date | 15 July 1997 |
| Docket Number | 23890,Nos. 23881,s. 23881 |
| Citation | 201 W.Va. 108,492 S.E.2d 167 |
| Parties | Joseph Larry WALKER, Petitioner Below, Appellee v. WEST VIRGINIA ETHICS COMMISSION, Respondent Below, Appellant. Joseph Larry WALKER, Petitioner Below, Appellant v. WEST VIRGINIA ETHICS COMMISSION, Respondent Below, Appellee. |
| Court | West Virginia Supreme Court |
2. In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
3. Although an express grant of powers to an administrative agency will be determined to include such other powers as are necessarily or reasonably incident to the powers granted, the agency's powers should not be extended by implication beyond what may be necessary for their just and reasonable execution.
4. The West Virginia Ethics Commission has the authority to remand cases to a hearing examiner for further proceedings in accordance with the Commission's directives, regardless of whether such authority has been specified in the statutes establishing the powers and duties of the Commission.
5. " Syllabus point 3, Francis O. Day Company, Inc. v. Director, Division of Environmental Protection, 191 W.Va. 134, 443 S.E.2d 602 (1994).
John D. Wooton, Wooton Law Firm, Beckley, for Appellant, Joseph Larry Walker.
Robert J. Lamont, West Virginia Ethics Commission, Charleston, for Appellant, West Virginia Ethics Commission.
In this administrative appeal, the West Virginia Ethics Commission, 1 appeals a memorandum opinion, issued May 17, 1996, and a final order, entered June 14, 1996, by the Circuit Court of Raleigh County, which ordered, in part, the dismissal, for procedural reasons, of Count 5 of the Commission's statement of charges against Joseph Larry Walker. Count 5 concerned Walker's knowing approval of a subordinate's falsified travel expense form. Additionally, Walker appeals from that part of the circuit court's final order affirming the Commission's prior finding that Walker had committed the ethics violations alleged in Count 3 of the Commission's statement of charges, which charged Walker with the falsification of a travel expense form. As both appeals relate to the same administrative proceedings and involve the same parties, we have consolidated these two appeals for purposes of rendering a decision therein. Upon a review of the record and the parties' arguments, and for the reasons stated below, we affirm in part and reverse in part the decision of the Circuit Court of Raleigh County and remand this case for further proceedings consistent with this opinion.
In 1992, Joseph Larry Walker [hereinafter "Walker"], was employed as a District Supervisor with the West Virginia Division of Rehabilitation Pursuant to the Ethics Act, alleged ethics violations are brought to the Commission's attention by way of verified complaint. 6 Upon receiving a verified complaint, the Commission assigns an investigative panel to review the allegations. 7 If the Panel finds probable cause exists to believe the named employee committed the alleged ethics violations, the Commission issues a statement of charges and a notice of hearing informing the employee of the specific instances of alleged unethical behavior and scheduling a hearing for the taking of evidence therein. 8 Following a hearing before a hearing examiner or hearing board, the entire record and a recommended decision are tendered to the Commission which then enters a final decision. 9
[201 W.Va. 111] Services [hereinafter "DRS"] 2 and was headquartered in the Beckley district office. As a result of this employment, Walker was classified as a public employee 3 whose conduct was governed by the West Virginia Governmental Ethics Act, W. Va.Code § 6B-1-1, et seq. [hereinafter "the Ethics Act"]. 4 The state agency charged with the enforcement of the Ethics Act is the West Virginia Ethics Commission [hereinafter "the Commission"]. 5
The events forming the basis of the instant appeal occurred in late fall, 1992, and mid-spring, 1993. Three employees who worked with Walker in the Beckley DRS district office filed a verified complaint with the Ethics Commission on March 31, 1993. Verified complaint No. 93-06 alleged:
This complaint charges Joseph Larry Walker and Thomas E. Hurley, 10 employees of the Division of Rehabilitation Services, Beckley District Office, with using their positions for personal gain.
Mr. Hurley, while on salary, routinely files false itineraries and charges the Agency mileage for trips he does not make. Mr. Walker approves Mr. Hurley's itineraries and expense accounts and certainly is aware of Mr. Hurley's indiscretions. Mr. Walker also is guilty of falsifying his itineraries and expense accounts.
This is a critical time for our Agency. We have exhausted our funds for case services to disabled individuals, yet these men continue to falsify expense accounts for non-existent travel and work not performed.
By letter dated April 6, 1993, the Commission notified Walker of the pending complaint and the designation of an investigative panel to assess these allegations. Following assignment of Investigative Panel "D" to review the charges and a finding by this Panel of probable cause to believe that Walker violated W. Va.Code § 6B-2-5(b)(1) (1992) (Repl.Vol.1993), 11 the Commission issued a statement of charges dated October 12, 1993. This statement charge[d] that Joseph L. Walker, a Supervisor in the Beckley branch office of the Division of Rehabilitation Services, did unlawfully, knowingly and intentionally use his office for private gain as hereinafter set forth.
On November 24, 1992, from approximately 1:24 p.m. until the end of his workday, Joseph L. Walker engaged in personal business unrelated to his duties for the Division of Rehabilitation Services. He did not take annual leave or leave without compensation for this time.
On November 25, 1992, from approximately 2:23 p.m. until the end of his workday, Joseph L. Walker engaged in personal business unrelated to his duties for the Division of Rehabilitation Services. He did not take annual leave or leave without compensation for this time.
On or about December 1, 1992[sic] Joseph L. Walker submitted a Travel Expense Account Settlement form which claimed expenses for a trip allegedly taken from Beckley to Hinton on November 25, 1992. Mr. Walker subsequently accepted reimbursement for the mileage claimed on that day even though he did not make such a trip.
On or about April 6, 1993[sic] Joseph L. Walker took a trip from Beckley, WV to Princeton, WV that was related to his state employment. Rather than return to his office in Beckley, however, he exited from the West Virginia Turnpike at the Ghent exit ramp at approximately 12:15 p.m. He did not return to the Beckley office until approximately 4:00 p.m. that day and did not take annual leave or leave without compensation for the time between 12:15 p.m. and his return to the office.
On February 10, 1994, Thomas Hurley, who, along with Walker, was charged in the verified complaint with violating certain ethics provisions, entered a conciliation agreement with the Commission. As a result of Hurley's agreement, the Commission received supplemental information suggesting grounds for charging Walker with an additional count of unethical behavior. 12 Counsel The Commission, by order entered October 7, 1994, affirmed the hearing examiner's recommendation to dismiss Counts 1, 2, and 4 and dismissed the same. However, the Commission rejected the hearing examiner's recommended dismissal of Count 3 and, upon a review of the hearing testimony, concluded that Walker received reimbursement for a trip to Hinton, West Virginia, on November 25, 1992, which he did not make. In conclusion, the Commission found "the proposed decision of the Hearing Examiner to dismiss Count 3 is in error and should be remanded for further hearing."
[201 W.Va. 113] for the Commission moved for a continuance to permit Investigative Panel "D" to examine this information and determine the propriety of additional charges, but the hearing examiner denied the motion. As a result, a hearing was held on February 17, 1994, as previously scheduled, with respect to the four counts with which Walker was initially charged. After receiving testimony and other evidence, the hearing examiner granted Walker's motion for a directed verdict, pursuant to Rule 50 of the West Virginia Rules of Civil Procedure, and dismissed the four counts of the statement of charges. The hearing examiner tendered a recommended decision to the Commission, dated August 22, 1994, recommending dismissal of the statement of charges because "[t]he West Virginia Ethics Commission failed to prove beyond a reasonable doubt that Respondent, Joseph L. Walker, violated West Virginia Code § 6B-2-5[ (b)(1) ] and the allegations contained in the Statement...
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