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Henry M. Hills, III, Esq.
|Robert M. Nunley, Esq.
Employment Programs Litigation Unit
Charleston, West Virginia
Attorney for Division of Rehabilitative Services
|Darrell V. McGraw, Jr., Esq.
Donald L. Darling, Esq.
Senior Deputy Attorney General
Charleston, West Virginia
Attorneys for Division of Personnel
JUSTICE STARCHER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
In the instant case we hold that the default provisions of new language in the
state employee grievance law apply to conduct that occurred after the effective date of the
applicable statutory language.
The Level III hearing was held on June 5, 1998. Under the then-applicable provisions of W.Va. Code, 29-6A-4 , the grievance evaluator was required to make a decision within 5 days of the hearing. And under the then-applicable provisions of W.Va. Code, 29-6A-3(a) , the effect of the evaluator's failure to make a timely response was that the grievance was deemed denied and could proceed to the next level.
However, the parties agreed at the Level III hearing to extend the due date of the decision by the grievance evaluator to July 7, 1998.
On July 1, 1998, the following provision of W.Va. Code, 29-6A-3(a)(2)  became effective:
Any assertion by the employer that the filing of the grievance at level one was untimely shall be asserted by the employer on behalf of the employer at or before the level two hearing. The grievant prevails by default if a grievance evaluator required to respond to a grievance at any level fails to make a required response in the time limits See footnote 1required in this article, unless prevented from doing so directly as a result of sickness, injury, excusable neglect, unavoidable cause or fraud. Within five days of the receipt of a written notice of the default, the employer may request a hearing before a level four hearing examiner for the purpose of showing that the remedy received by the prevailing grievant is contrary to law or clearly wrong. In making a determination regarding the remedy, the hearing examiner shall presume the employee prevailed on the merits of the grievance and shall determine whether the remedy is contrary to law or clearly wrong in light of that presumption. If the examiner finds that the remedy is contrary to law, or clearly wrong, the examiner may modify the remedy to be granted to comply with the law and to make the grievant whole.
The record reflects that the grievance evaluator was aware that the default provisions embodied in the foregoing statute would be in effect on July 7, 1998, the agreed- upon decision due date.
The evaluator did not issue
a decision by July 7, 1998. On August 5, 1998, the appellants asserted in a
written notice to the appellees that the appellees had defaulted in the grievance,
because the grievance evaluator had not issued a timely decision. On August
11, 1998, the appellees requested a Level IV hearing on the grievance. In an
order dated November 19, 1998, a Level IV administrative law judge of the state
Employees Grievance Board denied the appellants' request to declare an employer
default, on the grounds that the statutory language was inapplicable. This decision
by the ALJ was appealed by the appellants to circuit court. By order dated October
12, 1999, the ALJ's ruling was upheld by the Circuit Court of Kanawha County.
The instant appeal followed.
(1999); and Hanlon v. Logan County Board of Education, 201 W.Va. 305,
496 S.E.2d 447 (1997).
We need not reiterate our discussions in those cases -- except to point out again the well-established principle of West Virginia law that:
. . . if statutory construction [of school and other public employee personnel laws] is necessary and warranted, such construction should go in the direction of expanding or preserving employee protection, and not in the direction of limiting that protection. School personnel regulations and laws are to be strictly construed in favor of the employee. Syllabus Point 1, Morgan v. Pizzino, 163 W.Va. 454, 256 S.E.2d 592 (1979). (emphasis added).
(Emphasis added.) Harmon v. Fayette County Board of Education, 205 W.Va. 125, 134 n.17, 516 S.E.2d 748, 757 n.7 (1999).
In the instant case, the ALJ and the circuit court adopted the appellees' argument that the newly-enacted default provisions of W.Va. Code, 29-6A-3(a)(2)  did not apply to the failure of the Level III grievance evaluator to issue a timely decision -- because, argued the appellees, such an application of the statute would be retroactive.
In adopting the appellees' position, the ALJ relied upon the case of Public Citizen, Inc. v. First National Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996).
In Public Citizen, we held that:
Under West Virginia law, a statute that diminishes substantive rights or augments substantive liabilities should not be applied retroactively to events completed before the effective date of the statute (or the date of enactment if no separate effective date is stated) unless the statute provides explicitly for retroactive application. To be specific, this means that, unless expressly stated otherwise by the statute, such a statute will not apply to pending cases or cases filed subsequently based upon facts completed before the statute's effective date. In contrast, remedial and procedural provisions are applied normally to pending cases despite the absence of a clear statement of legislative intent to do so. [FN 7] In these situations, the reliance interest that is the foundation of the interpretive principle limiting retroactive application is not engaged. But even here the procedural/substantive distinction is not talismanic. The test of the interpretive principle laid down by the United States Supreme Court in Landgraf is unitary. It is whether the the new provision attaches new legal consequences to events completed before its enactment. If a new procedural or remedial provision would, if applied in a pending case, attach a new legal consequence to a completed event, then it will not be applied in that case unless the Legislature has made clear its intention that it shall apply.
[FN 7] We have provided that the general rule of prospective application may be relaxed for procedural or remedial statutes, and in cases where an amended statute incorporates common law that existed before the amendment to the statute.
198 W.Va. at 334-335, 480 S.E.2d at 543-44 (citations omitted, emphasis added).
If we were to find that the full retroactivity analysis of Public Citizen applied to the facts of the instant case, we would have to address the question of whether, as a remedial and/or procedural statute, the default provision of W.Va. Code 29-6A-3(a)(2)  should be applied retroactively in some cases.See footnote 2 However, we do not need not to reach the retroactivity issue in the instant case. The appellants -- by asserting that a default by the appellees arose from the appellees' failure to make a grievance response that was due on July 7, 1998 -- did not seek to attach a new legal consequence to an event [that was] completed before W.Va. Code 29-6A-3(a)(2) 's effective date. Public Citizen, supra.
Rather, in the instant case, the appellants sought to invoke the statutory consequences of an event -- the employer's failure to issue a timely decision -- that occurred a week after the new statute's effective date.See footnote 3 The retroactivity analysis of Public Citizen is not required under the facts of the instant case, because the new statute was already in effect at the time of the appellees' conduct.
We hold, therefore, that the default provisions of W.Va. Code, 29-6A-3(a)(2)  apply to failures by grievance evaluators to make timely grievance responses where such failures occur after the effective date of the statute.
Based on the foregoing, the rulings of the ALJ and of the circuit court were erroneous. The ALJ should have granted the appellants' request to declare that the appellees were in default on the merits of the appellants' grievance, subject to the appellees' right to request review of the remedy to be awarded.See footnote 4