The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
TERRI J. PRICE,
Plaintiff,
v. Civil Action No. 2:16-cv-1529
REGION 4 PLANNING AND DEVELOPMENT
COUNCIL, and JOHN F. TUGGLE,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are the plaintiff’s Supplemental Motion for
Summary Judgment, filed December 5, 2018, Motion for Leave to
File Supplemental Motion for Summary Judgment, filed January 2,
2019, and the defendants’ Motion to Strike Plaintiff’s
Supplemental Motion for Summary Judgment, or in the Alternative,
Response in Opposition, filed December 19, 2018.
In her supplemental motion, Price moves for summary
judgment on her theory that Tuggle was never the Executive
Director of Region 4 Planning and Development Council (“Region
4”) because his appointment was not properly “ratified.” As a
result, Price asserts that Tuggle lacked authority to terminate
her employment, rendering her discharge invalid, and seeks
“immediate reinstatement” to her former position at Region 4.
Pl.’s Supp. Mot. Summ. J. at 7. Although the subject matter of
the plaintiff’s supplemental motion for summary judgment is not
alleged in her complaint, and although the motion is untimely,
the court will nevertheless address it to the extent that
follows. The factual background at issue is fully developed in
the companion order entered today in the above-styled civil
action.
West Virginia Code § 8-25-1 et seq. provides for the
creation of Regional Planning and Development Councils in West
Virginia, including defendant Region 4. Section 8-25-6(c)
specifically provides, in pertinent part, that each Council
“shall select . . . an executive committee which shall . . .
perform such administrative duties as are prescribed by the
regional council in its bylaws.” Section 8-25-6(d) states that
“[e]ach Regional Council shall establish personnel rules and
shall appoint a director” who is “empowered to appoint and
remove other employees in accordance with the regional council’s
personnel rules.”
The bylaws of Region 4 provide that the Executive
Committee “shall select and appoint a qualified person to serve
as the Executive Director of the Council” and that the
“appointment of the Executive Director shall be ratified by the
general membership at the next available Council meeting.” See
Article VIII, § 8:01, Pl.’s Supp. Mot. Summ. J. at Ex. B.
The meeting minutes (“Minutes”) of the Special
Executive Committee meeting held on September 4, 2013 show that
John Manchester, Chairman of the Region 4 Council and Executive
Committee member, was authorized by the Executive Committee to
hire defendant Tuggle as Executive Director, effective October
1, 2013. Pl.’s Supp. Mot. Summ. J. at Ex. E. The Minutes of
the Executive Committee meeting held on September 18, 2013
reflect that Tuggle was introduced as the person “recently
selected to precede [sic, succeed] W.D. [Smith] in his role as
Executive Director.” Id. at Ex. F. The “next available
meeting” after the Executive Committee authorized the hiring of
Tuggle was an October 16, 2013 “dinner celebration of the
retirement of . . . Smith.” Id. at 5-6.
Plaintiff is of the position that, “[i]n the case of
John Tuggle . . . the required appointment by the full council
membership never occurred.” Id. at 5. In support thereof, she
claims that “(i)f the minutes do not show a vote [by the general
membership] authorizing an action, then the Board [sic,
Executive Committee] necessarily has not taken any action at
all.” Id. at 6 (emphasis in original). Noting that the October
16, 2013 Minutes do not reflect “any motion having been made to
ratify the Executive Committee’s hiring of Mr. Tuggle, and do
not document any action confirming or appointing him as
Executive Director,” Price concludes that “Tuggle was never
properly appointed as the Executive Director.” Id. at 6.
Inasmuch as Tuggle is a “public official” who is “only
authorized to act within his or her statutory authority,”
plaintiff asserts that his defective appointment “deprived him
of any authority to act in any capacity,” which caused his
“purported termination” of Price to be void. Id. at 6-7
(emphasis in original).
On the other hand, the defendants maintain that Region
4 Council properly ratified Tuggle’s appointment, in that an
agreement, “such as the employment agreement the Executive
Committee made with [] Tuggle, can be ratified implicitly by
accepting benefits of an action with full knowledge of the
terms.” Defs.’ Mot. Strike 11 (citing Syl., Payne Realty Co. v.
Lindsey et al., 112 S.E. 306 (W. Va. 1922)). Alternatively,
they claim that Region 4 Council “explicitly and implicitly”
ratified Tuggle’s appointment at the October 16, 2013 dinner
meeting, inasmuch as the Agenda for that meeting reflects that
Region 4 Council was to remove Smith from “Region 4 Accounts,”
understood to be financial accounts, and replace him with
Tuggle. See id. at Ex. A.
Independently of the foregoing, defendants also find
Region 4 Council approval of the hiring of Tuggle in a
resolution issued by the Council on July 16, 2014, which states:
NOW THEREFORE BE IT RESOLVED, that Region 4 Planning
and Development Council hereby concurs with and
approves the actions, decisions, and performance of
the Executive Committee for Fiscal Year 2013/2014. I,
John Manchester the duly elected Chairman of the
Region 4 Planning and Development Council, do hereby
certify that at a meeting of the Region 4 Planning and
Development Council, duly and [sic] held pursuant to
the said organization's By-Laws, on the 16th day of
July, 2014 upon motion made, seconded, and adopted by
a vote of 14 to 0, this Resolution was adopted.
Id. at Ex. B (emphasis supplied). One of the actions taken by
the Executive Committee during the 2013/2014 Fiscal Year was to
hire Tuggle as Executive Director. The defendants contend that,
inasmuch as Region 4 adopted, by a vote, the actions, decisions,
and performance of the Executive Committee during the 2013/2014
Fiscal Year, which included the hiring of Tuggle, the “latest
possible date” that Tuggle’s appointment could be considered
defective is the date of this resolution, July 16, 2014 – six
months before Price’s discharge. Id. at 12.
For all of the reasons advanced by the defendants, the
court concludes that Tuggle’s appointment as Executive Director
was duly ratified by the Council.
Moreover, technical defects do not render acts of an
agency or its officials void, inasmuch as the acts of a de facto
officer, as to the public and third parties, are valid as if he
or she were a de jure officer. See Defs.’ Mot. Strike at 9
(citing Odom v. Partners for Payment Relief, DE III, LLC, 2015
WL 3676713, at *5 (W. Va. 2015)).
Under West Virginia law, the “acts of a de facto
officer, as to the public and third persons, are as valid as if
he were a de jure officer.” Syl. pt. 4, Stowers v. Blackburn,
90 S.E.2d 277 (W. Va. 1955). An individual is a de facto
officer “when he is in possession of an office and discharges
its functions under color of authority.” Id. at Syl. pt. 3.
In State ex rel. Hayden v. Wyoming County Correctional
Officer Civil Service Commission, 412 S.E.2d 237, 238 (1991),
the plaintiff, Hayden, argued that all actions taken by the
Civil Service Commission – particularly, the certification of a
list of potential candidates for a correctional officer position
- were void because the Civil Service Commission was not
properly constituted. The Civil Service Commission was
organized pursuant to the provisions of W. Va. Code § 7-14-B1 et
seq., which provided for the creation of a civil service system
for the selection of correctional officers in West Virginia
counties with a population of 25,000 or more. Id. at 239. One
duty of the Civil Service Commission was to determine the
eligibility of candidates for the position of correctional
officer. Id. Pursuant to W. Va. Code § 7-14B-3, no more than
three members of a commission could be of the same political
party.
When the sheriff of Wyoming County requested a list of
eligible candidates for an opening for a temporary correctional
officer position, the Civil Service Commission was inadvertently
composed of four Democrats and only one Republican.
Nevertheless, the Civil Service Commission certified a list of
eligible candidates for the opening, which did not include the
plaintiff. The plaintiff, of course, was not considered for
appointment as a result. Id. Claiming that the defect in the
political composition of the Civil Service Commission’s
membership rendered the creation of the list invalid, Hayden
filed a writ of mandamus seeking back pay, seniority rights, and
a new hearing. The circuit court held that, because the Civil
Service Commission did not comply with W. Va. Code § 7-14B-3,
its actions taken during the time at issue were invalid. Id.
It awarded the plaintiff with back pay from the date of the
appointment that he was not able to obtain, and ordered the
Civil Service Commission to place Hayden’s name on the list of
eligible candidates. Id.
Upon appellate review, the Supreme Court of Appeals
reversed the decision of the circuit court, and found that the
Civil Service Commission’s failure to comply with the West
Virginia Code did not render its acts void as a matter of law,
inasmuch as a “rather substantial body of law in West Virginia
indicat[es] that acts of de facto officers are valid so far as
the public and third persons are concerned.” Id. The court
cited the definition of de facto officer from Stowers v.
Blackburn, see supra, but more thoroughly explained the
definition as follows:
An officer de facto is one whose acts, though not
those of a lawful officer, the law, upon principles of
policy and justice, will hold valid, so far as they
involve the interests of the public and third persons,
where the duties of the officer were exercised; First,
without a known appointment or election, but under
such circumstances of reputation or acquiescence as
were calculated to induce people, without inquiry, to
submit to or to invoke his action, supposing him to be
the officer he assumed to be; second, under color of a
known and valid appointment or election, but where the
officer had failed to conform to some precedent
requirement or condition, as to take an oath, give a
bond, or the like; third, under color of a known
election or appointment, void because the officer was
not eligible, or because there was a want of power in
the electing or appointing body, or by reason of some
defect or irregularity in its exercise, such as
ineligibility, want of power, or defect being unknown
to the public; fourth, under color of an election or
appointment by or pursuant to a public
unconstitutional law, before the same is adjudged to
be such.
Id. at 240 (quoting Calley v. Blake, 29 S.E.2d 634 (W. Va.
1944)). Subsequently, the Supreme Court of Appeals noted that,
in recent cases, courts have stressed that in order to be
considered a de facto officer, the position the person occupies
must have a de jure existence. Id. It explained that in
Hayden, the Civil Service Commission clearly had a de jure
existence insofar as its organization was made pursuant to a
valid legislative enactment, but that its membership was
defective inasmuch as it failed to have the proper political
balance required by law. Id. Thus, the organization had a de
jure existence, while the appropriate individuals were not
occupying de jure positions within the organization. Id.
In conclusion, the court held that the members of the
Civil Service Commission were not de jure officers at the time
they certified the list of potential appointees because they did
not represent the correct political balance required by law, but
were functioning under the color of authority and occupying de
jure offices properly created under W. Va. Code § 7-14B-1 et
seq. Accordingly, the members were de facto officers under West
Virginia law and their actions were deemed to be valid.
Even if Tuggle was not a de jure Executive Director at
the time in question, he was, at the very least, a de facto
officer. Assuming, arguendo, that at the next available
meeting, a vote by the general membership to ratify his
appointment was required but not done, it appears that any such
failure was the result of an inadvertent oversight. Region 4
and its employees undoubtedly operated under the assumption that
his appointment was successfully ratified, as evidenced by
subsequent Minutes reflecting his replacement of Smith as
Executive Director.
Further, Tuggle’s position of Executive Director was
clearly one of de jure existence, as it was established in
accordance with both W. Va. Code § 8-25-6(d) and Region 4’s
bylaws. Insofar as the Executive Director is “empowered to
appoint and remove other employees in accordance with the
regional council’s personnel rules” pursuant to W. Va. Code § 8-
25-6(d), Tuggle was also functioning under the color of
authority when he fired Price. Thus, her termination was valid.
For the foregoing reasons, it is ORDERED that the
plaintiff’s motion for leave be, and hereby is, granted; that
the defendants’ motion to strike be, and hereby is, denied; and
that the plaintiff’s supplemental motion for summary judgment
be, and hereby is, denied.
The Clerk is requested to transmit this order to all
counsel of record and any unrepresented parties.
ENTER: April 25, 2019