NO. 21219 - BEL-O-MAR INTERSTATE PLANNING COMMISSION AND NORTHERN
PANHANDLE AREA AGENCY ON AGING; CENTRAL WEST VIRGINIA AREA AGENCY
ON AGING; MID-OHIO VALLEY REGIONAL COUNCIL AND REGION V AREA AGENCY
ON AGING; REGION VI PLANNING AND DEVELOPMENT COUNCIL AND REGION VI
AREA ON AGING; AND SOUTHEASTERN WEST VIRGINIA AREA ON AGING V. WEST
VIRGINIA COMMISSION ON AGING, A PUBLIC CORPORATION ESTABLISHED BY
Miller, Justice, dissenting:
The majority opinion implies that this reduction in
services to the elderly was a result of legislative action. This
was not the case. The record demonstrates that the executive
director of the West Virginia Commission on Aging (WVCOA) was
pressured into reducing the number of planning and service areas by
several legislators after the legislature adjourned and after the
Budget Digest was compiled.
The Budget Digest was the subject of our earlier case,
Common Cause of West Virginia v. Tomblin, 186 W. Va. 537, 413
S.E.2d 358 (1991), in which the petitioners, nonprofit
organizations, urged us to stop the practice of allowing a small
group of legislators to allocate budget funds to particular
projects or programs, not listed in the budget bill, without the
express approval of the full legislature. The evidence in Common
Cause reflected that this was being done through the Budget Digest,
authorized under W. Va. Code, 4-1-18 (1969),See footnote 1 after the legislature
adjourned. Specifically, in Common Cause the Budget Digest had
taken $11.5 million authorized in the budget bill and, after the
legislature adjourned, allocated it to a variety of local pork-barrel projects.
In what can only be termed a Pyrrhic victory for the
petitioners, the majority opinion in Common Cause recognized that
"the Legislative Budget Digest prepared by the Conferees Committee
on the Budget does not have the force and effect of law," but went
on to state that the Budget Digest "is a legitimate part of the
ongoing dialogue between the legislative branch and executive
branch concerning the allocation of state funds[.]" Syllabus Point
2, in part, Common Cause, supra. In Syllabus Point 5 of Common
Cause, the majority sanctioned the use of the Budget Digest so long
as some minimal record was made during the legislative session that
could justify the subsequent alterations made in the Budget
Digest.See footnote 2
In my dissent in Common Cause, I pointed out that by permitting the Conferees Committee to allocate funds through the Budget Digest after the legislature had adjourned, the majority had effectively usurped the legislative power, which under Article VI, Section 1 of our Constitution, is "vested in a senate and a house of delegates." The majority's holding in Common Cause was not only contrary to the Constitution, but it was also against the teachings of our prior cases,See footnote 3 particularly State ex rel. Barker v. Manchin, 167 W. Va. 155, 279 S.E.2d 622 (1981), wherein we struck down legislation that attempted to give a twelve-member legislative committee the entire authority to approve administrative rules and regulations. Our reasoning in Barker was later approved by the United States Supreme Court in Immigration & Naturalization Service v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983).
It is against this backdrop that today's appeal rests.
The issue in this case is the validity of WVCOA's decision to
reduce the number of area agencies on aging from nine to four. The
majority's approach focuses on the federal regulation, 45 C.F.R.
§ 1321.17, which requires a state plan for implementing the Older
Americans Act (state plan) to create planning and service areas if
they desire to obtain federal funds.See footnote 4 ___ W. Va. at ___, ___
S.E.2d at ___ (Majority op. at 6-7). The majority then reasons
that because the federal program for the elderly is not mandatory
upon the states, WVCOA can change or abolish such planning and
However, a review of other applicable federal regulations
points to an opposite conclusion where, as here, the state has
already applied for and accepted federal funds. First, it is quite
clear that while WVCOA is given primary responsibility under 45
C.F.R. § 1321.7(a) for implementing the state plan,See footnote 5 it is required
to designate area agencies to perform much of the actual work under
45 C.F.R. § 1321.7(b).See footnote 6 These are the agencies which are affected
in this case.
Once a state elects to participate in the federal funding
for older Americans, as this state has done, there are substantial
procedural requirements that must be met. 45 C.F.R. § 1321.17,
details the necessary informationSee footnote 7 that must be submitted by a
state to the applicable federal agency for approval. See 45 C.F.R.
§ 1321.21.See footnote 8
More importantly, 45 C.F.R. § 1321.35(a) outlines when the state agency can withdraw an area agency which has been approved under the state plan. Under this subsection, there are only four criteria that justify a withdrawal: (1) the area agency does not meet plan requirements; (2) the area plan or its amendment is not approved; (3) the area agency fails to comply with its area plan or with the Older Americans Act or state agency policies; or
(4) the agency's activities are inconsistent with its statutory
function.See footnote 9
There is nothing in the record to show that any of the
involved area agencies violated any of these provisions. In fact,
the director of WVCOA admitted this and indicated that the decision
to reduce the area agencies was solely a result of the suggestion
in the Budget Digest and his conversation with several members of
the Conferees Committee who prepared the Digest.
Even the majority acknowledges that "each of the
appellees [the area agencies] met the requirements of the Older
Americans Act." ___ W. Va. at ___, ___ S.E.2d at ___ (Majority op.
at 7). The majority sanctions the reduction in the number of area
agencies by saying that "[t]he usage of the words 'shall withdraw'
rather than the words 'may only withdraw' conveys the obvious
conclusion that the section does not limit a State agency to
withdrawing an area agency designation to only those circumstances
enunciated therein." ___ W. Va. at ___, ___ S.E.2d at ___
(Majority op. at 7-8). (Emphasis in original).
This conclusion flies in the face of our statutory
construction rule that ordinarily the word 'shall' is a mandatory
command. Syllabus Point 1, Nelson v. West Virginia Public
Employees Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982). In this
situation, the specific enumeration of four grounds for terminating
an area agency would foreclose the right to a general termination.
The majority states that the "WVCOA has absolute
discretion to reduce or enlarge the number of planning and service
areas. There is at present no law or procedure the WVCOA must
follow when making a reduction decision." ___ W. Va. at ___, ___
S.E.2d at ___ (Majority op. at 8). (Emphasis in original; footnote
omitted). This statement ignores the plain language of 45 C.F.R.
§ 1321.19, which relates to amendments to the state plan. Under
subsection (a)(2), the state plan is required to be amended where
there is a material change "in any law, organization, policy, or
State agency operation[.]" There is a further requirement of
reporting changes to the applicable federal agency under 45 C.F.R.
§ 1321.19(c).See footnote 10
Thus, it seems clear that once a state elects to accept
federal funds for the elderly, it may not later abolish area
agencies absent one of the causes contained in 45 C.F.R.
§ 1321.35.See footnote 11 None of these criteria were met. The state may also
have the right to alter or amend provisions of the state plan
relating to the establishment of area agencies subject to the
provisions of 45 C.F.R. § 1321.19 requiring federal approval. The
record shows that this was not done.
Once again, the majority has allowed a small group of legislators to revise the budget and dictate policy to a state agency.See footnote 12 I find this action to be contrary to our Constitution and to the principles of a democratic society. I, therefore, dissent.
Footnote: 1W. Va. Code, 4-1-18 (1969), states, in pertinent part: "[U]pon the passage of the budget bill . . . a digest or summary of the budget bill . . . as finally enacted by the Legislature . . . shall be prepared at the direction of and approved by members of the conferees committee on the budget[.]"
Footnote: 2Syllabus Point 5 of Common Cause states:
"In order for the Budget Digest to
conform to the requirement of W.Va. Code, 4-1-18 , which directs the Conferees
Committee on the Budget to prepare a 'digest
or summary' of the budget, the finance
committees, their chairmen, or the
subcommittee chairman must have memoranda of
the negotiations, compromises and agreements
or audio recordings of committee or
subcommittee meetings where votes were taken
or discussions had that substantiate the
material which is organized and memorialized
in the Budget Digest."
Footnote: 3See, e.g., Benedict v. Polan, 186 W. Va. 452, 413 S.E.2d 107 (1991); Dadisman v. Moore, 181 W. Va. 779, 384 S.E.2d 816 (1988); Jones v. Rockefeller, 172 W. Va. 30, 303 S.E.2d 668 (1983); O'Connor v. Margolin, 170 W. Va. 762, 296 S.E.2d 892 (1982).
Footnote: 4The relevant portion of 45 C.F.R. § 1321.17 is: "To receive a grant under this part, a State shall have an approved State plan as prescribed in section 307 of the Act. In addition to meeting the requirements of section 307, a State plan shall include: * * * (d) Identification of the geographic boundaries of each planning and service area and of area agencies on aging designated for each planning and service area, if appropriate."
Footnote: 545 C.F.R. § 1321.7(a), in relevant part, states: "The Older Americans Act intends that the State agency on aging shall be the leader relative to all aging issues on behalf of older persons in the State."
Footnote: 645 C.F.R. § 1321.7(b) states:
"The State agency shall designate
area agencies on aging for the purpose of
carrying out the mission described above for
the State agency at the sub-State level. The
State agency shall designate as its area
agencies on aging only those sub-state
agencies having the capacity and making the
commitment to fully carry out the mission
described for area agencies in § 1321.53
Footnote: 745 C.F.R. § 1321.17 contains some twenty-one subparts covering what a state plan must contain.
Footnote: 845 C.F.R. § 1321.21 states:
"Each State plan, or plan amendment
which requires approval of the Commissioner,
shall be signed by the Governor or the
Governor's designee and submitted to the
Commissioner to be considered for approval at
least 45 calendar days before the proposed
effective date of the plan or plan amendment."
Footnote: 945 C.F.R. § 1321.35(a) states:
"In carrying out section 305 of the
Act, the State agency shall withdraw the area
agency designation whenever it, after
reasonable notice and opportunity for a
hearing, finds that:
"(1) An area agency does not meet the requirements of this part;
"(2) An area plan or plan amendment is not approved;
"(3) There is substantial failure in the provisions or administration of an approved area plan to comply with any provision of the Act or of this part or policies and procedures established and published by the State agency on aging; or
"(4) Activities of the area agency are inconsistent with the statutory mission prescribed in the Act or in conflict with the requirement of the Act that it function only as an area agency on aging."
Footnote: 1045 C.F.R. § 1321.19 states:
"(a) A State shall amend the State
plan whenever necessary to reflect:
"(1) New or revised Federal statutes or regulations;
"(2) A material change in any law, organization, policy or State agency operation, or
"(3) Information required annually by sections 307(a)(23) and (29) of the Act.
"(b) Information required by paragraph (a)(3) of this section shall be submitted according to guidelines prescribed by the Commissioner.
"(c) If a State intends to amend provisions of its plan required under §§ 1321.17(a) or (f), it shall submit its proposed amendment to the Commissioner for approval. If the State changes any of the provisions of its plan required under § 1321.17(b) through (d), it shall amend the plan and notify the Commissioner. A State need only submit the amended portions of the plan."
Footnote: 11See note 9, supra.
Footnote: 12The final irony is that the executive director of the WVCOA acknowledged in his testimony before the trial court that an attempt had been made during the legislative session to consolidate the area agency districts. This consolidation effort failed in the House of Delegates. Yet, the desired result was accomplished through the Budget Digest!