CHIEF JUSTICE BENJAMIN concurs, in part, and dissents, in part, and reserves the right to file a separate opinion.
2. Although we accord great deference to the findings of fact of the West Virginia Educational Employees Grievance Board, we review, de novo, questions of law. Syllabus Point 2, Maikotter v. University of W. Va. Bd. of Trs., 206 W.Va. 691, 527 S.E.2d 802 (1999).
3. Grievance rulings involve a combination of both deferential and plenary review. Since a reviewing court is obligated to give deference to factual findings rendered by an administrative law judge, a circuit court is not permitted to substitute its judgment for that of the hearing examiner with regard to factual determinations. Credibility determinations made by an administrative law judge are similarly entitled to deference. Plenary review is conducted as to the conclusions of law and application of law to the facts, which are reviewed de novo. Syllabus Point 1, Cahill v. Mercer County Board of Education, 208 W.Va. 177, 539 S.E.2d 437 (2000).
4. There is authority in equity to award to the prevailing litigant his or her
reasonable attorney's fees as 'costs,' without express statutory authorization, when the losing
party has acted in bad faith, vexatiously, wantonly or for oppressive reasons. Syllabus Point
3, Sally-Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986).Per Curiam:
This case is before this Court upon appeal of a final order of the Circuit Court of Calhoun County entered November 2, 2007. In that order, the circuit court reversed the decision of the West Virginia Education and State Employees Grievance Board (hereinafter, the Grievance Board) (See footnote 1) which upheld a four-day suspension of the appellee, Pamela Gainer, without pay, by the appellant, Martha Yeager Walker, Secretary of the West Virginia Department of Health and Human Resources (hereinafter, appellant or DHHR). The circuit court found that the Grievance Board's decision was clearly wrong in view of the reliable, probative, and substantial evidence on the whole record, and ordered the DHHR to pay the appellee lost wages and reasonable attorney's fees due to her suspension. In this appeal, the DHHR contends that the circuit court erred by reversing the decision of the Grievance Board, and awarding the appellee attorney's fees in the amount of $9,045.00. Based upon the parties' briefs and arguments in this proceeding, as well as the relevant statutory and case law, this Court finds that the circuit court did not commit reversible error and accordingly, affirms the decision below.
[The appellee's] concern about [C.S.] was corroborated by other [DHHR] workers from Harrison County, who also noticed that [C.S.] spent a lot of time in his playpen. Although she did not recall it when she testified on direct examination, adoption specialist Jennifer Hogue had a concern that [C.S.] spent too much time in his playpen and was otherwise confined to a small portion of the house, as shown by her case notes after her home visit on November 17, 2004.
The appellee contends that she chose to disclose the information to the guardian ad litem and counsel for H.T.'s foster mother, instead of the prosecuting attorney,
because they were the only lawyers in the case who were actually advocating the DHHR's
position, which was that C.S. and H.T. should not be placed together in S.B.'s home. The
appellee maintains that throughout the entire case, the prosecutor had demonstrated a history
of refusing to cooperate with the DHHR, as evidenced by his statement that, We'll just sit
back and let these foster parents duke it out. She also cited an eight-page report submitted
to the circuit court from the DHHR concerning issues surrounding the prosecuting attorney's
handling of the case. Thus, given the appellee's belief that the prosecutor was not doing his
job, she gave the information to the two attorneys whom she believed were aggressively
advocating the [DHHR's] position regarding the children's best interests.
Following the hearing regarding the custody of H.T., Ms. Hogue filed an internal complaint against the appellee for releasing her notes from C.S.'s confidential file. Subsequent to an investigation of the complaint, on July 10, 2006, the appellee was suspended for four days, without pay, for a breach of the confidentiality of social service case records, which according to the DHHR, violated several of its policies as well as the social workers' code of ethics. During a meeting between the appellee and a DHHR regional director, the appellee admitted that she disclosed the confidential information based on her belief that she needed to do so to protect the best interests of C.S. and H.T.
On July 17, 2006, the appellee initiated a grievance at Level II, protesting her suspension. Her grievance was denied at Level II on July 27, 2006, and on July 28, 2006, the appellee appealed that decision to Level III. Following a September 5, 2006, evidentiary hearing, the appellee's Level III appeal was also denied by order dated October 27, 2006. On October 31, 2006, she then appealed her grievance to Level IV, which brought the matter before an ALJ of the Grievance Board. On March 16, 2007, the ALJ upheld the appellee's suspension and concluded that the DHHR,
has proven by a preponderance of the evidence that [the
appellee] violated DHHR confidentiality policies and the Social
workers' Code of Ethics, and that a four-day suspension was
appropriate under the circumstances presented.
The ALJ also explained that while the appellee's heart was in the right place, she nonetheless broke the DHHR's policies on confidentiality.
On April 13, 2007, the appellee appealed the ALJ's decision to the Circuit Court of Calhoun County. On November 2, 2007, the circuit court reversed the ALJ, finding that the Level IV grievance decision [was] clearly wrong in view of the reliable, probative and substantial evidence on the whole record. The circuit court concluded that the DHHR deprived the appellee of due process of law by failing to provide her with several documents prior to the Level III hearing, but the appellee was, nevertheless, able to present evidence which placed her actions within the policy of the [DHHR] prohibiting the release of confidential information. In other words, the circuit court found that the appellee did not violate DHHR policy when she disclosed the confidential information. The circuit court then set aside the DHHR's disciplinary action against the appellee and ordered that the DHHR purge her personnel records of any reference to such disciplinary action. It further ordered that the DHHR was to pay the appellee the wages for the four days of missed work due to her suspension, as well as pay her reasonable attorney's fees and costs. This appeal followed.
(1) Is contrary to law or a lawfully adopted rule or written
policy of the employer;
(2) Exceeds the hearing examiner's statutory authority;
(3) Is the result of fraud or deceit;
(4) Is clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or
(5) Is arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
More specifically articulated by this Court is the directive that [a] final order of the hearing examiner for the West Virginia Education and State Employees Grievance Board, made pursuant to W.Va. Code, 29-6A-1, et seq., and based upon findings of fact, should not be reversed unless clearly wrong. Syllabus, Quinn v. West Virginia Northern Community College, 197 W.Va. 313, 475 S.E.2d 405 (1996).
This instruction is consistent with our observation that rulings upon questions of law are reviewed de novo. Quinn, 197 W.Va. at 316, 475 S.E.2d at 408 (citing Bolyard v. Kanawha County Bd. of Educ., 194 W.Va. 134, 136, 459 S.E.2d 411, 413 (1995)). Moreover, [a]lthough we accord great deference to the findings of fact of the West Virginia Educational Employees Grievance Board, we review, de novo, questions of law. Syllabus Point 2, Maikotter v. University of W. Va. Bd. of Trs., 206 W.Va. 691, 527 S.E.2d 802 (1999). See also Martin v. Randolph County Bd. of Educ., 195 W.Va. 297, 304, 465 S.E.2d 399, 406 (1995) (We review de novo the conclusions of law and application of law to the facts.). Because this Court reviews decisions of the circuit court under the same standard used by the circuit court in reviewing the decisions of an ALJ, it is clear that this Court employs a combination of deferential and plenary review. More particularly,
[g]rievance rulings involve a combination of both
deferential and plenary review. Since a reviewing court is
obligated to give deference to factual findings rendered by an
administrative law judge, a circuit court is not permitted to
substitute its judgment for that of the hearing examiner with
regard to factual determinations. Credibility determinations
made by an administrative law judge are similarly entitled to
deference. Plenary review is conducted as to the conclusions of
law and application of law to the facts, which are reviewed de
Syllabus Point 1, Cahill v. Mercer County Board of Education, 208 W.Va. 177, 539 S.E.2d 437 (2000).
Also at issue in this case is the circuit court's award of attorney's fees. This Court applies an abuse of discretion standard when reviewing a circuit court's award of such fees. See Beto v. Stewart, 213 W.Va. 355, 359, 582 S.E.2d 802, 806 (2003) (The decision to award or not to award attorney's fees rests in the sound discretion of the circuit court, and the exercise of that discretion will not be disturbed on appeal except in cases of abuse.).
Accordingly, we proceed with our examination of the assigned errors with these standards in mind.
It is undisputed by either party that the appellee, and/or other DHHR
employees, are justified in disclosure of sensitive information from the DHHR's pre-adoption
case records when it is necessary to prevent serious, foreseeable, and imminent harm to a
child. (See footnote 5) What the DHHR does dispute, however, is whether such a danger of serious,
foreseeable harm was present in this case.
Upon review of the record it is clear that there was a danger of serious, foreseeable harm present and therefore, the appellee was justified in disclosing the information in C.S.'s case file. In that regard, there was substantial evidence presented to the ALJ and to the circuit court demonstrating that S.B. could not give adequate attention to another child in her home. S.B. was a single mother, in her fifties, in remission from cancer, with five other children in her home, at least two of whom had special needs. Those conditions alone would not, in and of themselves, warrant such a conclusion; however, at about the same time as the placement hearing was held for H.T., there had been allegations that S.B. was unable to provide sufficient attention to the children already in her home, and that the DHHR's investigation unit was conducting an investigation of those allegations. Some of the allegations, made by a former foster child in S.B.'s home, were that S.B. had left children outside in the rain, refused to allow children to eat when they were hungry, was distracted from caring for the children because she was drinking beer with friends, and had left C.S. in a high chair and in his playpen for extended periods without any contact. (See footnote 6)
Moreover, we find equally important, the circuit court's November 2, 2007, order, wherein it outlined the following:
It is clear from the record that the appellee, as well as other DHHR employees,
expressed their strong concerns that even though C.S. was the only pre-school age child in
S.B.'s home, that he was not getting adequate attention. Thus, if C.S. were not receiving
adequate attention prior to the placement of an additional child in his home, it is reasonable
to conclude that adding a sixth child to S.B's home would have necessarily resulted in C.S.
receiving even less attention. It is further reasonable to conclude that H.T., who was
approximately one year and three months younger than C.S., would not have received
adequate attention in a home with six children. The circuit court, following a September 9,
2005, custody hearing, obviously agreed with such a conclusion as it held that placement of
H.T. with C.S. was not in the best interests of either child and that there was clear and
convincing evidence that . . . justifies separation of these siblings.
It is further clear that given the circumstances surrounding the September 9, 2005, hearing, the appellee released Ms. Hogue's notes because she believed she needed to act immediately in order to prevent harm to C.S. and H.T. Prior to the hearing, the circuit court had returned an order on August 8, 2005, allowing for placement of H.T. with S.B. Thereafter, on August 16, 2005, C.H. filed a Motion to Stay the Transfer of Physical Custody and/or Motion to Continue Placement of the Child [H.T.] with the Foster Mother [C.H.]. The circuit court then agreed to revisit its August 8, 2005, ruling, and scheduled the September 9, 2005, hearing. Thus, it was not until additional information was presented at the September 9, 2005, hearing, including Ms. Hogue's notes contradicting her direct testimony during that hearing, that the circuit court rescinded its earlier order, and found that placement of H.T. in S.B.'s home was not in the best interests of that child. Accordingly, the appellee believed that her inaction during the hearing would have placed vulnerable children at risk of harm.
The appellee contends, and this Court agrees, that the only person harmed by her disclosure of the underlying information, given the specific facts of this case, was Ms. Hogue, due to the fact that her direct testimony differed from her documented observations in S.B.'s home. Nonetheless, regardless of any potential embarrassment on behalf of Ms. Hogue, it is not the purpose of the DHHR's confidentiality policy to shield social workers from embarrassment at the expense of vulnerable children. The record below demonstrates that the appellee disclosed a very limited portion of a child's confidential records to protect that child, and the child's sibling, from imminent harm. Consequently, we believe that the appellee disclosed the information for proper reasons and that the circuit court correctly found that:
[t]he failure of the ALJ to recognize the potential harm to these children which concerned [the appellee,] lead the ALJ to arrive at the conclusion that [the appellee's] actions in revealing the confidential information was not within Department policy . . . the [ALJ's] decision in this matter is clearly wrong in view of the reliable, probative and substantial evidence on the whole record. [The appellee's] actions, in this instance, were entirely appropriate to prevent serious, foreseeable and imminent harm to [H.T.], certainly, and to [C.S.] as well.
In summary, it is clear from the record that the appellee acted appropriately and in compliance with the applicable confidentiality policy. She believed that her actions were necessary to prevent harm to the DHHR's clients, two vulnerable children in separate child abuse and neglect cases. It is further apparent from its order, that the circuit court reviewed the ALJ's application of law to the facts de novo, as it was required to do, and determined that the ALJ's conclusions of law and application of law to the facts were clearly wrong in view of the reliable, probative, and substantial evidence on the whole record. Accordingly, with regard to this issue, we affirm the circuit court's November 2, 2007, order, reversing the ALJ's March 16, 2007, decision. (See footnote 7)
The DHHR also assigns as error the circuit court's decision to award the appellee attorney's fees in the amount of $9,045.00, pursuant to W.Va. Code § 6C-2-6(b) (2007). W.Va. Code § 6C-2-6(b), provides:
(b) In the event a grievant or employer appeals an adverse
level three decision to the circuit court of Kanawha County, or
an adverse circuit court decision to the Supreme Court of
Appeals of West Virginia, and the grievant substantially prevails
upon the appeal, the grievant may recover from the employer
court costs and reasonable attorney's fees for the appeal to be set
by the court.
The DHHR argues that the circuit court should have applied W.Va. Code § 29-6A-10 (1998), which provides:
If an employee appeals to a circuit court an adverse decision of
a hearing examiner rendered in a grievance proceeding pursuant
to provisions of this article or is required to defend an appeal
and the person substantially prevails, the adverse party or parties
is liable to the employee, upon final judgment or order, for court
costs, and for reasonable attorney's fees, to be set by the court,
for representing the employee in all administrative hearings and
before the circuit court and the supreme court of appeals, and is
further liable to the employee for any court reporter's costs
incurred during any administrative hearings or court
proceedings: Provided, That in no event shall such attorney's
fees be awarded in excess of a total of one thousand five
hundred dollars for the administrative hearings and circuit court
proceedings nor an additional one thousand dollars for supreme
court proceedings: Provided, however, That the requirements of
this section shall not be construed to limit the employee's right
to recover reasonable attorney's fees in a mandamus proceeding
brought under section nine of this article.
The DHHR contends that the circuit court incorrectly applied a new section of the Code, W.Va. Code § 6C-2-1 et seq., which repealed § 29-6A-1, et. seq., effective July 1, 2007. (See footnote 8) The DHHR states that W.Va. Code § 6C-2-1 et seq., was promulgated by the West Virginia Legislature as a new grievance procedure for public employees, and that all grievances filed on or after July 1, 2007, follow the procedures set forth in the new statute, while grievances filed prior to July 1, 2007, follow the procedures found in the old statute. Since the appellee's grievance was filed prior to July 1, 2007, the DHHR maintains that an award of attorney's fees was governed by W.Va. Code § 29-6A-10.
The DHHR points out that the appellee filed her Level II grievance on July 17, 2006, challenging her four-day suspension without pay. Her grievance was denied at that level, and was then denied at Level III on October 27, 2006. That denial was appealed to
Level IV on October 31, 2006, and the ALJ issued its decision on March 16, 2007. The appellee then appealed the ALJ's decision to the circuit court on April 13, 2007. Thus, according to the DHHR, the appellee's grievance was already filed in the circuit court when the new statute became effective and, therefore, clearly falls under the old statute, which limits her recovery to a maximum of $1,500.00 in attorney's fees.
Conversely, the appellee maintains that the circuit court correctly awarded her attorney's fees incurred as a result of her successful prosecution of her grievance. In her brief before this Court, the appellee states that she substantially prevailed in her case, and, pursuant to W.Va. Code § 6C-2-6(b), there is no limit on the amount of attorney's fees that a circuit court may award to a successful grievant. The appellee conceded, however, during oral arguments before this Court, that this case would fall under the old statute, i.e., W.Va. Code § 29-6A-10. Nonetheless, she argues that under principles of equity, she is still entitled to her reasonable attorney's fees in the amount of $9,045.00, in spite of any potential statutory limitation.
Upon review, it is clear that the statute in effect at the time of the underlying grievance proceeding was W.Va. Code § 29-6A-10. See e.g. Dodd v. Potomac Riverside Farm, Inc., 222 W.Va. 299, 308 n. 1, 664 S.E.2d 184, 193 n. 1 (2008) (The parties agree that this statute, which was repealed in 2002, is applicable to the instant proceeding as it was in effect at the time the instant proceeding was initiated.). See also State ex rel. Clark v. Blue Cross Blue Shield of West Virginia, Inc., 203 W.Va. 690, 696 n. 12, 510 S.E.2d 764, 790 n.12 (1998); Griffith & Coe Advertising v. Farmers & Merchants Bank and Trust, 215 W.Va. 428, 431, 599 S.E.2d 851, 854 (2004); Hoover v. Moran, 222 W.Va. 112, 121 n. 7, 662 S.E.2d 711, 720 n. 7 (2008), State ex rel. Ins. Com'r of State of West Virginia v. Blue Cross and Blue Shield of West Virginia, Inc., 219 W.Va. 541, 557 n. 3, 638 S.E.2d 144, 160 n.3 (2006); and Beard v. Lim, 185 W.Va. 749, 754 n.7, 408 S.E.2d 772, 777 n. 7 (1991). Nonetheless, our review of this issue does not end there.
This Court has explained that, [l]itigants are normally responsible for paying their own attorney's fees unless court rule, statute or express contract provision provides otherwise. Syllabus Point 2, Sally-Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986). However, we have further held that, [t]here is authority in equity to award to the prevailing litigant his or her reasonable attorney's fees as 'costs,' without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons. Syllabus Point 3, Sally-Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986).
As previously discussed, the circuit court found that the DHHR deprived the appellee of due process by failing to provide her with numerous documents prior to the Level III hearing. The circuit court first noted that:
Apparently, this is the only instance in [the appellee's] 30 years
of employment with the [DHHR] that she has been the subject
of disciplinary action. While the monetary loss to [the appellee]
may be slight, the notation of a disciplinary action against her
would be permanently on her employment record and might
affect her ability to advance her career with the [DHHR].
The circuit court then explained:
The [DHHR] was in possession of several documents it intended
to and did submit into evidence at the Level III hearing. Among
those are a memorandum from Jennifer Hogue, which was
considered the complaint against [the appellee] (R-3), and which
set out in some detail the underlying facts alleged to support the
complaint; several e-mails (R-5 through R-7) and a report of
investigation (E-1), which set out in substantial detail the course
of the investigation and the findings of the investigator. Since
all of this information was disclosed at the Level III hearing, this
Court can see no justification for the [DHHR's] failure to make
this information available to [the appellee] and her counsel in
order that the grievant could properly prepare a response. This
concerns the Court.
The DHHR has never offered any explanation for its failure to provide the appellee with the documents outlined by the circuit court, except for a brief mention of the requested emails. The DHHR stated that it had attempted to locate, but could not find, all of the emails requested by the appellee, and then declared that the emails were not relevant to the appellee's case. We find the DHHR's response unacceptable and inadequate with regard to its failure to provide the appellee with documents that it had in its possession, resulting in a violation of her due process.
This Court is further troubled by the fact that the DHHR failed to recognize the appellee's actions, in releasing Ms. Hogue's notes, were taken strictly in the best interests of two vulnerable children who were under the DHHR's care. (See footnote 9) Even the ALJ noted that the appellee's heart was in the right place, in spite of its subsequent conclusion that rules are rules in denying the appellee's grievance. Moreover, as the circuit court recognized, the importance of the appellee's actions in releasing Ms. Hogue's notes were critically important to the decision to separate the siblings. The circuit court explained:
[t]he evidence utilized to refresh Ms. Hogue's memory caused
her testimony to be in agreement with that of [the appellee]
(Finding of Fact No. , Judge Evans' order 12-6-05). It is
clear that Judge Evans considered the information to be of
critical importance in his decision to separate the siblings, since
he had concluded at an earlier hearing that the [DHHR] had not
met its burden to prove by clear and convincing evidence that
the failure to unite [C.S.] and [H.T.] is in the best interest of
The appellee made a split-second decision during a hearing wherein a determination would immediately be made by a circuit court concerning the welfare of two children. She was faced with a prosecutor whom she, and other DHHR employees, believed was not advocating its interests, as well as testimony from a co-worker that was inconsistent with that individual's previously recorded notes. She could have sat silently while at least two children faced potential harm. Instead, she was forced to make a difficult and quick decision in the best interests of those children and, rather than being applauded for her efforts, she was punished with a four-day suspension, a loss of pay, and her first-ever blemish on a more than thirty-year record with the DHHR. Then, even while she attempted to fight her suspension, she was stonewalled at every turn as the DHHR withheld critical information from her. The withholding of such information, which the circuit court correctly found was a violation of the appellee's due process rights, necessarily prolonged this case leading to a significant increase in the appellee's attorney's fees.
Under these circumstances, the appellee should not have to bear the burden caused by the DHHR's failure to act in an expedient and appropriate manner throughout these proceedings. Accordingly, due to the clear violation of the appellee's due process rights, the DHHR acted in a vexatious manner, i.e., without reasonable or probable cause or excuse, (See footnote 10) in failing to provide the appellee with the documents she requested, and needed, to properly present her grievance. As we have further explained herein, the DHHR had those documents in its possession and has no offered no explanation for its failure to provide them to the appellee. Consequently, the circuit court's award of $9,045.00, plus interest, is not contrary to law. See Syllabus Point 3, Yokum, supra.