R. Vance Golden, III, Esq.
Parkersburg, West Virginia
Attorney for the Appellee
Darrell V. McGraw, Jr., Esq.
William H. Hill, III, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellant
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
"The primary object in construing a statute is to
ascertain and give effect to the intent of the Legislature."
Syllabus Point 1, Smith v. State Workmen's Compensation Commission,
159 W. Va. 108, 219 S.E.2d 361 (1975).
This dispute concerns the civil service pay rate of James
Snider, an employee of the West Virginia Department of Commerce
(hereinafter the Department) at Blennerhassett Historical Park
(hereinafter the Park). Effective July 1, 1989, Mr. Snider, an
unclassified employee of the Park's Commission with an annual
salary of $24,816.00, was transferred to the Department as Building
Maintenance Supervisor II, a classified position with an annual
salary of $17,316.00. Mr. Snider argues that his transfer to
classified service should not drastically reduce his salary because
W. Va. Code 29-8-2 , the transfer statute, provides that a
transferred employee shall not be "severed, removed or terminated
from such employment prior to his entry into the classified
service. . . ." The Department maintains that W. Va. Code 29-8-2
 does not require that a transferred employee be paid the
same salary that the Park paid before its transfer to the
Department and that Mr. Snider's annual salary of $17,316.00 is
comparable to similar positions in the Department's Division of
Tourism and Parks. Because we find that the diminution of Mr.
Snider's salary as a result of his transfer is so great that it
constitutes a termination of employment prohibited by W. Va. Code
29-8-2 , we affirm the decision of the circuit court.
On March 15, 1980, Mr. Snider was hired as Director of
Operations by the Blennerhassett Park Commission (hereinafter the
Commission). In 1980 Mr. Snider was an unclassified state employee
with an annual salary of approximately $19,400.00. The Commission,
an independent state agency, was established by W. Va. Code 29-8-1
 et seq. to develop Blennerhassett island. In 1989, W. Va.
Code 29-8-1  et seq., was amended to make the Commission
advisory and the Commission's employees were transferred to the
Department of Commerce.
Currently, the Park consists of: (1) a building in the
City of Parkersburg containing a museum, theater, administrative
offices and storage space; (2) a five-hundred acre island in the
Ohio River about two miles from the City containing a restored
mansion, several buildings and various public recreational
facilities; and (3) a docking facility and storage yard for the
ferry boats used to access the island. A separate public dock near
the confluence of the Little Kanawha and Ohio Rivers is used to
access the island. The Park employs 10 full-time workers, as many
as 16 additional part-time seasonal workers and 50 seasonal
Under the Commission, Mr. Snider supervised and performed
the Park's maintenance, assisted in the Park's development and
construction, maintained and repaired the ferry boats, piloted the ferry boats, and trained other employees. Mr. Snider testified
that substantial skill and experience was necessary to maintain and
operate the ferries and that approximately half of his time is
devoted to operating and maintaining the ferries. Mr. Snider also
testified that at various times he supervised at least nine other
workers. In its brief, the Department alleges that Mr. Snider does
not supervise any other workers. During the summer tourist season,
Mr. Snider testified he works between 40 to 70 hours per week.
During the off-season, the emphasis of Mr. Snider's work shifts to
maintenance and construction. Except for the removal of the Park's
planning and construction to the Department's central office, Mr.
Snider's job after his transfer remains unchanged.
Effective July 1, 1989, the Commission's employees were
transferred from unclassified to classified state employees.
W. Va. Code 29-8-2 .See footnote 1 By letter dated July 6, 1989, the
Division of Personnel (hereinafter Personnel) recommended that Mr.
Snider be classified as Building Maintenance Supervisor II with an
annual salary of $24,816.00, which included the July 1, 1989 state
workers' pay raise. However, the Department declined to adopt
Personnel's salary recommendation and proposed to pay Mr. Snider an annual salary of $17,316.00.See footnote 2 Objecting to the reduction in his
salary, Mr. Snider filed a grievance that was eventually heard by
the West Virginia Education and State Employees Grievance Board
(hereinafter the Board). The Board found that after the
probationary period, Building Maintenance Supervisor IIs' salaries
statewide range from $15,576 to $30,660 with an average salary of
$19,650.See footnote 3 In contrast, the Department's salary range for Building
Maintenance Supervisor IIs is from $15,576 to $19,920 with an
average salary of $17,802.See footnote 4
Mr. Snider maintains that his duties are unique because
he must pilot and maintain the island's access boats. However, the
Department asserts that the needs of the various state parks
determine the responsibilities of the employees classified by the
Department as a Building Maintenance Supervisor II and that these
responsibilities, although not identical, are similar.See footnote 5
After the Board decided that Mr. Snider's position should
be classified as a Building Maintenance Supervisor II with an
annual salary of $17,316, Mr. Snider appealed to the circuit court.
The circuit court found "no authority, statutory or otherwise, for
reduction in salary for classified state employees" and restored his salary with appropriate back pay.See footnote 6 Alleging that Mr. Snider's
reduction in salary occurred before he became a classified
employee, the Department appealed to this Court.
In 1989, the Legislature transferred the Commission's
employees to the Department by amending W. Va. Code 29-8-2 
to provide, in pertinent part:
All employee positions in the former Blennerhassett historical park commission are hereby transferred to the division of commerce and shall be included in the classified service of the civil service system pursuant to article six [§ 29-6-1 et seq.], chapter twenty-nine of this code. Any person included in the classified service by the provisions of this section who is employed in any of such positions as of the effective date of this amendment [Acts 1989, c. 20: July 1, 1989; Acts 1990, c. 33: June 7, 1990] and reenactment shall not be required to take and pass qualifying or competitive examinations upon or as a condition to being added to the classified service: Provided, That no person included in the classified service by the provisions of this section who is employed in any of such positions as of the effective date of this section [Acts 1975, c. 112, March 7, 1975; Acts 1989, c. 20, July 1, 1989; Acts 1990, c. 33: June 7, 1990], shall be thereafter severed, removed or terminated from such employment prior to his entry into the classified service except for cause as if such person had been in the classified service when severed, removed or terminated. (Emphasis added.)
According to the statute, the Commission's employees should be transferred to the Department and except for cause, should not be "severed, removed or terminated." However, W. Va. Code 29-8-2  does not provide a clear directive concerning the transferred employees' salaries. "A statute that is ambiguous must be construed before it can be applied." Syllabus Point 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992). As we stated in Syllabus Point 2, Farley, id.:
"The primary object in construing a statute
is to ascertain and give effect to the intent
of the Legislature." Syllabus Point 1, Smith
v. State Workmen's Compensation Commission,
159 W. Va. 108, 219 S.E.2d 361 (1975).
Although there is a paucity of legislative history available to assist in statutory interpretation, Lowell D. Basford, Assistant Director of the Division of Personnel, provided some insight into the meaning of W. Va. Code 29-8-2 . Mr. Basford testified that, at the request of George E. Farley, the Chairman of the Finance Committee in 1989, he proposed the transfer statute's language that was eventually adopted by the Legislature. At the same time, pursuant to Mr. Farley's request for salary information for the budget bill, Mr. Basford prepared a tentative salary schedule for the transferred employees, indicating the transferred employees would retain their salaries. Mr. Basford acknowledged that he represented to Mr. Farley that under the proposed legislation the transferred employees' new salaries would be "either the same or above their old salaries."See footnote 7
In M'Culloch v. Maryland, 4 Wheat. 316, 327, 17 U.S. 316,
___, 4 L.Ed. 579, ___ (1819), Chief Justice John Marshall stated,
"An unlimited power to tax involves, necessarily, a power to
destroy; because there is a limit beyond which no institution and
no property can bear taxation." In this case, the Department
maintains that the lower classified salary is consistent with other
similar positions within its Department. However, by drastically
reducing Mr. Snider's salary, the Department in effect gave Mr.
Snider a Hobson's choice either to take the reduced salary or to
find a new job. The Legislature in the transfer statute foreclosed
the Department from severing, removing or terminating the
We find that the Department does not have unlimited power
to change to transferred position because pursuant to W. Va. Code
29-8-2 , the Department is foreclosed from severing, removing
or terminating the transferred employees "except for cause as if
such person had been in the classified service." In this case, Mr.
Snider was transferred but his salary was decreased by 30% without
a corresponding 30% job reduction. We find that Mr. Snider's
reduction in pay was so great that it constitutes a termination of
his employment, which is prohibited by W. Va. Code 29-8-2 .
Although in this case, we find a 30% decrease in salary to be a
constructive firing, in other cases, a smaller salary reduction in
order to align the transferee's salary with an existing salary
schedule may be considered de minimis, especially considering the
greater job security, employment opportunities and other benefits
offered by classified service. Because Mr. Snider's salary is
mandated by a specific, narrow transfer statute, his salary does
not establish and cannot be used as a benchmark for other
Department employees who seek salary adjustments.
Although the Department argues that allowing Mr. Snider
to retain his salary will substantially increase the Department's
payroll, we find that this argument fails to consider the limited
scope of this opinion. First, we note that W. Va. Code 29-8-2
, affects only the employees transferred from the Commission
to the Department-- the record indicates only 10 persons were employed by the Commission. Second, pursuant to the Legislature's
directive in W. Va. Code 29-8-2 , a transferred employee's
salary, even if higher than other Department salaries, cannot be
the sole justification for increasing a non-transferred employee's
salary. Finally, we note that the classified service system is in
the process of a major review which should eliminate any lingering
job classification questions.
"A final order of the hearing examiner for the West
Virginia Educational Employees Grievance Board, made pursuant to
W.Va. Code, 18-29-1, et seq. (1985), and based upon findings of
fact should not be reversed unless clearly wrong." Syllabus Point
1, Randolph County Bd. of Ed. v. Scalia, 182 W. Va. 289, 387 S.E.2d
524 (1989). Based on the language of W. Va. Code 20-8-2 , we
find Board's hearing examiner was clearly wrong and that the
circuit court correctly reversed the Board's decision.
For the above stated reasons, the judgment of the Circuit
Court of Wood County is affirmed.
Footnote: 1 The 1990 amendments to W. Va. Code 29-8-2 did not alter the employee transfer provisions.
Footnote: 2 The Department originally classified Mr. Snider as a Building Maintenance Supervisor I with an annual salary of $14,500. However based on the West Virginia Education and State Employees Grievance Board's decision of May 31, 1990, Mr. Snider was classified as Building Maintenance Supervisor II with an annual salary of $17,316.00 effective July 1, 1989.
Apparently, in October 1993 as a result of a state-wide reclassification program, Mr. Snider was reclassified as a Building Maintenance Supervisor I. In oral argument, the parties indicated
that Mr. Snider intends to protest this reclassification.
Footnote: 3 Different exhibits specify slightly different salaries for a Building Maintenance Supervisor II. Lowell D. Basford, Assistant Director of Personnel, testified that salaries varied because of periodic adjustment reflecting the actual salaries.
Footnote: 4 The Department employs 6 other employees classified as Building Maintenance Supervisor II. Employee 1 has two years service, supervises three full-time employees and is paid $16,212. Employee 2 has fourteen years service, supervises five full-time employees and is paid $19,920. Employee 3 has less than one year service and twenty-five years experience outside the park, supervises twenty-four full-time employees and is paid $19,848. Employee 4 has nine years service, supervises five full-time employees and is paid $16,932. Except for salary and a 1990 employment date, no additional information is available on Employee 5, who is paid $15,576 and Employee 6, who is paid $18,324.
Footnote: 5 The Department's Building Maintenance Supervisor IIs are currently employed in the following parks: (1) Pipestem Resort State Park, consisting of 4,023 acres, includes a 113-room lodge, conference facilities, restaurant, indoor and outdoor pool, 30-room lower lodge, 25 deluxe cabins, 4 residences, golf course, golf course building and pro-shop, park office building, sewer and water distribution systems, maintenance shop, recreation building, stable, campground, and visitors' center; (2) Babcock State Park, consisting of 4,127 acres, includes a maintenance building, stable, trails, picnic shelters, toilet facilities, boat rental building, 19 acre lake and dam, sewer and water distribution systems and 2 sewer plants; (3) Canaan Valley Resort State Park, consisting of 6,015 acres, includes a maintenance building, a 250-room lodge, pool, tennis courts, 15 cabins, 34 camp sites, trails, golf course and building, and 6 residences; (4) Hawks Nest State Park, consisting of 243 acres, includes a 31-room lodge, conference rooms, restaurant, tramway, marina, gift shop overlook, sewage treatment plant, museum, picnic shelters, toilet facilities, trails, and boat launch; and (5) Blennerhassett Historical State Park, consisting of 500 acres, includes a museum, theater, office and storage area in one building as well as restored mansion, toilet facilities, one cabin, picnic shelters, several other buildings, two boats and dock facilities.
Footnote: 6 In the proceedings below, in addition to seeking to maintain his annual salary, Mr. Snider contended that the unique nature of his position required the creation of a new job classification. However, Mr. Snider's appeal to the Court only raised the question of his annual salary.
Footnote: 7 Mr. Basford's testimony is as follows:
Basford. . . . But, anyway, the nature of the request
was that they wanted to place the park within
the state park system. They wanted to place
the employees into the classified service. He
requested that I give him, on a moment's
notice I might add, the language necessary to
place employees under the classified service
and further to assure that they would not have
to take any kind of qualifying or
competitive examinations in order to become covered. So my memo.., I gave it verbatim and I think it appeared in the bill just as we had recommended. I also.., during the conversation, he said, "I also need..," in addition to the budget document, there is what's called a legislative digest and it is a document that accompanies a budget bill and it gives a further breakdown of how the dollars are to be spent and I believe, included in that, there is an actual listing of job titles and that sort of thing and what their pay rate would be. So he asked me, "can you give me an approximate similar title that we can use to put in the budget bill? We don't want to use their current..," because it had to be a title from the classified service. So, just based.., I said, "well, I don't know what these people do." And so he explained to me in the conversation what he thought their role was and he gave me their existing titles and he gave me their current salaries. So, from that, I tried to come up with a title that would be used simply for that purpose to put into that budget digest. I purposefully did not include a heading on the page which said, "position classifications, proposed allocations." I purposefully left that off because I did not want it to be.., not having position description forms, I wanted to be sure that it was not taken as the official allocation for those positions. It was for a very limited purpose.
Q. I understand. And your response to him then was you suggested this language to him to place in the bill, did you not?
Basford. That's correct.
Q. And it is my recollection that that is in fact
at least part of the language that does in fact appear in the bill?
Basford. I believe that's correct, yes.
Q. Okay. And you also represented to him that these employees with this legislation would not have.., all their new salaries are either the same or above their old salaries, are they not?
Basford. That's correct.
Q. Now did Mr. Farley ever question you specifically in regards to how salaries would be handled?
Basford. I don't recall that being part of.., it may have but I just don't recall at that point.
Q. I said there's nothing in this letter that indicates to him that the salaries are to be cut if
the bill is passed.
Basford. I believe.., yes, that's correct.