The opinion
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2017 Term
_______________
FILED
No. 16-0324
May 30, 2017
_______________ released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
DWAYNE CALES,
Petitioner Below, Petitioner
v.
TOWN OF MEADOW BRIDGE: TIMOTHY KILLEN, MAYOR;
PATRICIA JONES, RECORDER; BONNIE HICKS, EULA MATLOCK,
AND JOSEPHINE KINCAID, COUNCIL MEMBERS,
Respondents Below, Respondents
____________________________________________________________
Appeal from the Circuit Court of Fayette County
The Honorable Paul M. Blake, Jr., Judge
Civil Action No. 15-C-260
AFFIRMED
____________________________________________________________
Submitted: April 19, 2017
Filed: May 30, 2017
Barry L. Bruce, Esq.
R. Grady Ford, Esq.
Barry L. Bruce and Associates, L.C.
The Ford Law Firm PLLC
Lewisburg, West Virginia
Lewisburg, West Virginia
Counsel for the Petitioner
Counsel for the Respondents
Timothy P. Stranko, Esq.
Charleston, West Virginia
Attorney for Amicus Curiae
West Virginia Municipal League, Inc.
JUSTICE WALKER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “A de novo standard of review applies to a circuit court’s decision to
grant or deny a writ of mandamus.” Syllabus Point 1, Harrison Cty. Comm’n v. Harrison
Cty. Assessor, 222 W. Va. 25, 658 S.E.2d 555 (2008).
2. “‘To invoke mandamus the relator must show (1) a clear right to the
relief sought; (2) a legal duty on the part of the respondent to do the thing relator seeks;
and (3) the absence of another adequate remedy.’ Syllabus point 2, Myers v. Barte, 167
W.Va. 194, 279 S.E.2d 406 (1981).” Syllabus Point 3, Harrison Cty. Comm’n v.
Harrison Cty. Assessor, 222 W. Va. 25, 658 S.E.2d 555 (2008).
3. “‘Where the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.’ Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415
(1995).” Syllabus Point 4, Harrison Cty. Comm’n v. Harrison Cty. Assessor, 222 W. Va.
25, 658 S.E.2d 555 (2008).
4. “Among the criteria to be considered in determining whether a
position is an office or a mere employment are whether the position was created by law;
whether the position was designated an office; whether the qualifications of the appointee
have been prescribed; whether the duties, tenure, salary, bond and oath have been
i
prescribed or required; and whether the one occupying the position has been constituted a
representative of the sovereign.” Syllabus Point 5, State ex rel. Carson v. Wood, 154 W.
Va. 397, 175 S.E.2d 482 (1970).
5. A municipal sanitary board member does not hold a municipal office
and thus is not a municipal officer protected by West Virginia Code § 6-6-7 (2015) in the
event of involuntary removal.
ii
WALKER, Justice:
Petitioner Dwayne Cales appeals the March 1, 2016 order of the Circuit
Court of Fayette County denying his petition for a writ of mandamus seeking
reinstatement to his position as a member of the Meadow Bridge Sanitary Board
(“Sanitary Board”). On appeal, Petitioner asserts that he was a municipal officer
protected by West Virginia Code § 6-6-7 in the event of involuntary removal.
Respondents assert that Petitioner was not a municipal officer for purposes of West
Virginia Code § 6-6-7 and that his removal by a majority vote of Respondent Meadow
Bridge Town Council (“Town Council”) was proper.1 Upon consideration of the parties’
briefs and arguments, the submitted record and pertinent authorities, we affirm the March
1, 2016 order of the Circuit Court of Fayette County.
I. FACTUAL AND PROCEDURAL BACKGROUND
In June 2015, Petitioner was appointed by the Town Council to serve his
third consecutive term as a member of the Sanitary Board. Subsequently, Sanitary Board
members voted in favor of him serving in the capacity of vice chairman of the Sanitary
Board.
1
We acknowledge the amicus curiae brief filed by the West Virginia Municipal
League in support of Respondents in this case.
1
At a special meeting on September 21, 2015, a majority of the Town
Council voted to remove Petitioner from the Sanitary Board pursuant to § 3-112 of the
Meadow Bridge Code of Ordinances (“Municipal Code”).2 On September 25, 2015,
Petitioner filed a “Petition for Writ of Mandamus Pursuant to West Virginia Code § 6-6-7
and § 16-13-18” against Respondents3 seeking reinstatement to his position as a member
of the Sanitary Board. Petitioner alleged that Respondents wrongfully removed him from
his position as vice chairman of the Sanitary Board “in violation of West Virginia Code §
16-13-184 as they had no authority to remove [him] from his position . . . and, pursuant to
2
Municipal Code § 3-112 provides, in pertinent part, that “[a]ll officers appointed
by the Council may be removed from office at the pleasure of the Council without any
cause being assigned or shown therefor, a majority of members of the Council
concurring in such removal[.]” (emphasis added).
3
Respondents are the Town of Meadow Bridge, Mayor Timothy Killen, Recorder
Patricia Jones, and Council Members Bonnie Hicks, Eula Matlock, and Josephine
Kincaid.
4
West Virginia Code § 16-13-18 addresses, among other things, the organization
of a sanitary board:
(a) The governing body shall provide by ordinance the
organization of the board, and that the custody,
administration, operation and maintenance of such works are
under the supervision and control of a sanitary board, created
under this section.
(b) The sanitary board shall be composed of either the
mayor of the municipality, or the city manager thereof, if the
municipality has a city manager form of government, and two
persons appointed by the governing body: Provided, That, in
the event of an acquisition or merger of an existing works, the
(continued . . .)
2
governing body may increase the membership to a maximum
of four members in addition to the mayor or city manager of
the municipality served by the board.
(c) During the construction period, one of the members
must be a registered professional engineer, except that if a
registered professional engineer is under contract for the
project, the membership of the board is not required to
include a registered professional engineer. The engineer
member of the board need not be a resident of the
municipality. After the construction of the plant for which no
registered professional engineer is under contract has been
completed, the engineer member may be succeeded by a
person not an engineer. No officer or employee of the
municipality, whether holding a paid or unpaid office, is
eligible for appointment to the sanitary board until at least
one year after the expiration of the term of his or her public
office. The appointees shall originally be appointed for terms
of two and three years respectively, and upon the expiration
of each term and each succeeding term, an appointment of a
successor shall be made in like manner for a term of three
years. Vacancies shall be filled for an unexpired term in the
same manner as the original appointment. Each member shall
give bond, if any, as required by ordinance. The mayor or city
manager shall act as chairman of the sanitary board, which
shall elect a vice chairman from its members and designate a
secretary and treasurer (but the secretary and the treasurer
may be one and the same) who need not be a member or
members of the sanitary board. The vice chairman, secretary
and treasurer shall hold office at the will of the sanitary
board.
(d) The members of the sanitary board are entitled to
receive compensation for their services, either as a salary or
as payments for meetings attended, as the governing body
determines, and are entitled to payment for their reasonable
expenses incurred in the performance of their duties. The
governing body shall fix the reasonable compensation of the
secretary and treasurer in its discretion, and shall fix the
(continued . . .)
3
West Virginia Code § 6-6-7, Respondents failed to follow the statutorily required
procedure for removal of a municipal officer.” (footnote added).
Respondents filed a motion to dismiss on October 23, 2015, asserting that
West Virginia Code § 6-6-7 is inapplicable to Petitioner because a vice chairman of the
Sanitary Board is not a “municipal officer” under West Virginia Code § 6-6-7(a), and is
therefore not afforded the extraordinary protections and safeguards included in that
statute.5 Respondents further asserted that Municipal Code § 3-112 gave them authority
amounts of bond to be given by the treasurer. All
compensation, together with the expenses previously referred
to in this section, shall be paid solely from funds provided
under the authority of this article. The sanitary board may
establish bylaws, rules and regulations for its own
governance.
W. Va. Code § 16-13-18 (2016). The role of a sanitary board is set forth in West
Virginia Code § 16-13-2, which provides in pertinent part as follows:
(a) The construction, acquisition, improvement,
equipment, custody, operation and maintenance of any works
for the collection, treatment or disposal of sewage and, in
addition, for the collection and control of stormwater and the
collection of revenues therefrom for the service rendered
thereby, shall be under the supervision and control of a
sanitary board appointed by the governing body as set forth in
section eighteen of this article.
W. Va. Code § 16-13-2 (2016).
5
At the time of Petitioner’s removal from office, West Virginia Code § 6-6-7
provided, in pertinent part:
(continued . . .)
4
(a) Any person holding any county, school district or
municipal office, including the office of a member of a board
of education and the office of magistrate, the term or tenure
of which office is fixed by law, whether the office be elective
or appointive, except judges of the circuit courts, may be
removed from such office in the manner provided in this
section for official misconduct, malfeasance in office,
incompetence, neglect of duty or gross immorality or for any
of the causes or on any of the grounds provided by any other
statute.
(b) Charges may be preferred:
....
(2) In the case of any municipal officer, by the
prosecuting attorney of the county wherein such municipality,
or the greater portion thereof, is located, any other elected
officer of the municipality, or by any number of persons other
than the prosecuting attorney or other municipal elective
officer of the municipality who are residents of the
municipality, which number shall be the lesser of twenty-five
or one percent of the total number of voters of the
municipality participating in the election at which the
governing body was chosen which election next preceded the
filing of the petition.
....
(c) The charges shall be reduced to writing in the form
of a petition duly verified by at least one of the persons
bringing the same, and shall be entered of record by the court,
or the judge thereof in vacation, and a summons shall
thereupon be issued by the clerk of such court, together with a
copy of the petition, requiring the officer or person named
therein to appear before the court, at the courthouse of the
county where such officer resides, and answer the charges on
a day to be named therein, which summons shall be served at
(continued . . .)
5
least twenty days before the return day thereof in the manner
by which a summons commencing a civil suit may be served.
The court, or judge thereof in vacation, or in the case
of any multi-judge circuit, the chief judge thereof, shall,
without delay forward a copy of the petition to the Supreme
Court of Appeals and shall ask for the impaneling or
convening of a three-judge court consisting of three circuit
judges of the state. The Chief Justice of the Supreme Court of
Appeals shall without delay designate and appoint three
circuit judges within the state, not more than one of whom
shall be from the same circuit in which the petition is filed
and, in the order of such appointment, shall designate the
date, time and place for the convening of such three-judge
court, which date and time shall not be less than twenty days
from the date of the filing of the petition.
Such three-judge court shall, without a jury, hear the
charges and all evidence offered in support thereof or in
opposition thereto and upon satisfactory proof of the charges
shall remove any such officer or person from office and place
the records, papers and property of his office in the
possession of some other officer or person for safekeeping or
in the possession of the person appointed as hereinafter
provided to fill the office temporarily. Any final order either
removing or refusing to remove any such person from office
shall contain such findings of fact and conclusions of law as
the three-judge court shall deem sufficient to support its
decision of all issues presented to it in the matter.
....
(e) In any case wherein the charges are preferred by
the chief inspector and supervisor of public offices against the
county commission or any member thereof or any county
district or municipal officer, the proceedings under this
section shall be conducted and prosecuted by the prosecuting
attorney of the county in which the officer proceeded against
resides, and on any appeal from the order of the three-judge
(continued . . .)
6
to remove Petitioner from his position as a member of the Sanitary Board, with or
without cause, by a majority vote of the Town Council.
Following a hearing on December 23, 2015, and in consideration of the
parties’ memoranda proposing findings of fact and conclusions of law, the circuit court
entered an “Order Denying Relief and Dismissing Petition for Writ of Mandamus” on
March 1, 2016. The circuit court held that it was not reasonable, appropriate or proper to
extend the procedural protections and safeguards of West Virginia Code § 6-6-7 to a
member of a sanitary board. The circuit court determined that Petitioner was not a public
official holding a public office, and thus declined to find a legal duty on the part of the
Town of Meadow Bridge to comply with the extraordinary protections and safeguards of
West Virginia Code § 6-6-7 in removing Petitioner from his position on the Sanitary
Board.
court in any such case, the Attorney General of the State shall
represent the people. When any municipal officer is
proceeded against the solicitor or municipal attorney for such
municipality may assist in the prosecution of the charges.
W. Va. Code § 6-6-7 (2015) (emphasis added). Although this statute was rewritten
effective June 10, 2016, we note that its use of the terms “any person holding any . . .
municipal office” and “municipal officer” remain unchanged. W.Va. Code § 6-6-7
(Supp. 2016). Unless otherwise noted, we refer to the version of the statute in effect at
the time of Petitioner’s removal. Therefore, our analysis applies equally to the current
version of West Virginia Code § 6-6-7.
7
Citing to our holding in Christopher v. City of Fairmont, 167 W. Va. 710,
280 S.E.2d 284 (1981)6, the circuit court found that Petitioner failed to establish the
requisite criteria to prove that his position at the sanitary board was an “office.” The
circuit court noted that a sanitary board member is not expressly designated as an official
in the operative statute, West Virginia Code §16-13-18, or in the town ordinance,
Municipal Code § 17-113.7 The circuit court also recognized public policy
6
We discuss our holding in Christopher, 167 W. Va. 710, 280 S.E.2d, in further
detail below.
7
Pursuant to West Virginia Code § 16-13-18(a)-(b), the Town of Meadow Bridge
enacted an ordinance providing for the organization of a sanitary board comprised of the
mayor of the municipality and two persons appointed by the governing body. Municipal
Code § 17-113, for all intent and purpose, mirrors the guidelines established in West
Virginia Code §§ 16-13-1 through 16-13-24. Municipal Code § 17-113(1) provides that
“the Council of the Town of Meadow Bridge does hereby create and establish a Sanitary
Board, with all powers and duties as provided in and pursuant to the Act. (Chapter 16,
Article 13, of the Code of West Virginia).” Municipal Code § 17-113(2) provides that
“[t]he Sanitary Board shall consist of the Mayor, who shall be Chairman, one (1)
Councilperson and one (1) other resident of the Town who shall be appointed for a term
of three years and until his successor is appointed and qualifies; and the councilperson
and other resident shall be appointed by the Town Council.” Municipal Code § 17
113(3) provides that:
As soon as may be practicable following the
appointment of a new member of the Sanitary Board, the
Board shall hold an organizational meeting and choose a
Vice-Chairman from among its members, and a Secretary and
Treasurer, who may be one (1) person and need not be a
Board member, and such officers shall hold office at the will
of the Board. No bond shall be required of the Board
members as such, but the Treasurer, whether a member of the
Board or not, shall give bond in the penalty of Two Thousand
($2,000.00) Dollars for the proper application of all money
(continued . . .)
8
considerations supporting its finding that Petitioner was not entitled to the procedural
protections set forth in West Virginia Code § 6-6-7, such as the substantial time, travel,
and expenditure of resources associated with removal proceedings. Finally, the circuit
court noted the lack of precedent upon which it could rely:
As there is no case law directly on point the factual
circumstances presented in the case at bar, and there is rather
meager case law regarding how far the protections of § 6-6-7
may actually extend, it is unclear whether these facts would
hold sway over West Virginia Supreme Court affirming or
extending § 6-6-7 protections to officials that may appear to
be upon the cusp of, or even far removed, from what this
Court thinks was originally contemplated as the intended
purpose behind the legislature’s development of § 6-6-7
procedural protections and safeguards. Based upon the
existence of very limited precedence, it is clear to this Court
clarification in the application of § 6-6-7 either by the
legislature, or by the West Virginia Supreme Court of
Appeals, is both desired and necessary.
Petitioner appeals the circuit court’s order.
II. STANDARD OF REVIEW
In this case, we are asked to review the circuit court’s denial of Petitioner’s
writ of mandamus. In Syllabus Point 1 of Harrison County Commission v. Harrison
County Assessor, 222 W. Va. 25, 658 S.E.2d 555 (2008), this Court established the
standard of review that guides our analysis in these types of cases and held that “[a] de
received by him as Treasurer of the Board, and otherwise
conditioned according to law.
9
novo standard of review applies to a circuit court’s decision to grant or deny a writ of
mandamus.” In so holding, we explained that:
Under this standard, “we consider de novo whether the legal
prerequisites for mandamus relief are present.” McComas v.
Board of Educ. of Fayette County, 197 W.Va. 188, 193, 475
S.E.2d 280, 285 (1996) (quoting State ex rel. Cooper v.
Caperton, 196 W.Va. 208, 214, 470 S.E.2d 162, 168 (1996)).
Id. at 28, 658 S.E.2d at 558. The prerequisites for mandamus relief are:
“[t]o invoke mandamus the relator must show (1) a clear right
to the relief sought; (2) a legal duty on the part of the
respondent to do the thing relator seeks; and (3) the absence
of another adequate remedy.” Syl. pt. 2, Myers v. Barte, 167
W.Va. 194, 279 S.E.2d 406 (1981).
Id. at 26, 658 S.E.2d at 556, syl. pt. 3.
Moreover, we apply a de novo review in this case because the issue
presented requires us to resolve questions of law. “Where the issue on an appeal from the
circuit court is clearly a question of law or involving an interpretation of a statute, we
apply a de novo standard of review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va.
138, 459 S.E.2d 415 (1995). Keeping these standards in mind, we proceed to consider
the parties’ arguments.
III. DISCUSSION
10
Petitioner presents four assignments of error.8 However, the sole issue at
the heart of this matter is whether a member of a municipal sanitary board is a municipal
officer entitled to the procedural protections set forth in West Virginia Code § 6-6-7.
Petitioner contends he could be removed from his position on the Sanitary Board only by
the procedures outlined in West Virginia Code § 6-6-7, which include, among other
things, removal for cause following an investigation and complaint filed by the county’s
prosecuting attorney and a trial before an appointed three-judge panel. W.Va. Code § 6
6-7(a) - (c). However, in order to prevail, Petitioner must show that he was a municipal
officer under West Virginia Code § 6-6-7, which applies to “[a]ny person holding any
county, school district or municipal office . . .” W.Va. Code § 6-6-7(a).
Petitioner argues that the circuit court should have read West Virginia Code
§ 6-6-7 in pari materia with West Virginia Code § 6-6-8.9 He contends that while West
8
Petitioner alleges that: (1) the circuit court wrongly determined that the position
of sanitary board member and/or vice chairman is not an “officer” as contemplated by
West Virginia Code § 6-6-7; (2) the circuit court failed to consider West Virginia Code §
6-6-8 in its analysis of whether the sanitary board was covered by West Virginia Code §
6-6-7; (3) the circuit court wrongly elevated Municipal Code § 3-112 over West Virginia
Code § 6-6-7; and (4) the small size of the sanitary board has no bearing on the
enforceability of West Virginia Code § 6-6-7.
9
West Virginia Code §6-6-8 provides:
The court, body or officer authorized by law to appoint
any person to any county, magisterial district, independent
school district, or municipal office, a term or tenure of which
(continued . . .)
11
Virginia Code § 6-6-7 applies to officers with fixed terms, West Virginia Code § 6-6-8
applies to officers without fixed terms. Thus, Petitioner reasons that he must only show
that he is an officer with a fixed term, which is made clear by West Virginia Code § 16
13-18(c), for West Virginia Code § 6-6-7 to apply.
Petitioner further contends that contrary to the circuit court’s holding, the
reasoning in Christopher supports a finding that sanitary board members are municipal
officers for purposes of West Virginia Code § 6-6-7, as is the vice chairman of a sanitary
board. Specifically, Petitioner alleges that:
1. The position of Sanitary Board member is created by
statute § 16-13-18(c).
2. The position of vice chairman is designated as an office
under statute § 16-13-18(c) and Municipal Code § 17-113.
3. The statute requires a bond if same is required by the
enabling Municipal Code § 17-113, which only requires a
bond of the secretary/treasurer.10
is not fixed by law, may remove any person appointed to any
office by such court, board, body or officer, with or without
cause whenever such removal shall be deemed by it, them or
him for the good of the public service, and the removal of any
such person from office shall be final.
W. Va. Code § 6-6-8 (2015).
10
In Petitioner’s reply brief, he additionally contends that because he handled
money, he was in fact required to have a bond under West Virginia Code § 6-2-11 and
Municipal Code § 17-113. The former provides that:
(continued . . .)
12
4. The statute § 16-13-1, et seq, does not require an oath nor
does the ordinance; however, the appellant was given an oath
by the Mayor prior to taking office on June 1, 2015[.]11
5. The duties and tenure are prescribed by statute § 16-13
18(c) and the powers of the Sanitary Board, § 16-13-3.12
Every officer or employee of a municipality who handles
public funds or property, and every other officer or employee
of a municipality of whom it shall be required, shall, unless
otherwise provided by law, give bond, with good security, to
be approved by the council or other similar body of such
municipality, and in such penalty as such council or other
similar body shall prescribe, conditioned upon the faithful
discharge of the duties of his office or employment and the
faithful accounting for and paying over, as required by law, of
any funds or property coming into his possession.
W.Va. Code § 6-2-11 (2015). Municipal Code § 17-113(8) expressly requires that:
The Sanitary Board may from time to time, in its discretion,
require any of its employees to furnish a good and suitable
indemnity bond, with a recognized and reputable surety,
conditioned upon the faithful discharge of their duties as
such, and to deliver up and pay over all money as provided by
law. The Board shall require all persons who collect or
otherwise handle funds of the Board to furnish a good and
proper bond, with a recognized and reputable corporate surety
conditioned upon the faithful performance of their duties and
for the proper handling and care of said funds in their hands.
Such bond shall be in an amount equal to the sum of money
which might at any one time be in the hands of such person or
persons, as may be determined by the Board.
11
In Petitioner’s reply brief, he asserts an alternative argument that despite the fact
that the enabling statute, West Virginia Code § 16-13-18, expressly requires an oath only
if it is required by the enabling town ordinance, he was required to take an oath of office
under West Virginia Code § 6-1-3 (2016) because “every person elected or appointed to
any office in this state. . . shall take the oath. . . .”
13
12
West Virginia Code § 16-13-3 provides:
The board shall have power to take all steps and
proceedings and to make and enter into all contracts or
agreements necessary or incidental to the performance of its
duties and the execution of its powers under this article:
Provided, That any contract relating to the financing of the
acquisition or construction of any works, or any trust
indenture as provided for, shall be approved by the governing
body of the municipality before the same shall be effective.
The board may employ engineers, architects,
inspectors, superintendents, managers, collectors, attorneys,
and other employees as in its judgment may be necessary in
the execution of its powers and duties, and may fix their
compensation, all of whom shall do the work as the board
shall direct. All compensation and all expenses incurred in
carrying out the provisions of this article shall be paid solely
from funds provided under the authority of this article, and
the board shall not exercise or carry out any authority or
power herein given it so as to bind said board of said
municipality beyond the extent to which money shall have
been or may be provided under the authority of this article.
No contract or agreement with any contractor or
contractors for labor and/or material, exceeding in amount the
sum of ten thousand dollars, shall be made without
advertising for bids, which bids shall be publicly opened and
award made to the best bidder, with power in the board to
reject any or all bids.
After the construction, installation, and completion of
the works, or the acquisition thereof, the board shall operate,
manage and control the same and may order and complete
any extensions, betterments and improvements of and to the
works that the board may consider expedient, if funds
therefor be available or are made available as provided in this
article, and shall establish rules and regulations for the use
and operation of the works, and of other sewers, stormwater
(continued . . .)
14
6. The statute § 16-13-18(d) states how Sanitary Board
members are to be paid.
Additionally, Petitioner asserts that the Sanitary Board is an autonomously
run statutory board within the municipal entity. Petitioner contends that because West
Virginia Code § 16-13-3 and Municipal Code § 17-113 provide that the Sanitary Board
has the “power to take all steps and proceedings and to make and enter into all contracts
or agreements necessary or incidental to the performance of its duties and the execution
of its powers,” and because the Sanitary Board has the ability to hire employees such as
engineers, architects, and attorneys, the Sanitary Board has the ability to bind the Town
of Meadow Bridge and is an entity of the Town Council. He maintains that the only
conduits, and drains connected therewith so far as they may
affect the operation of such works, and do all things necessary
or expedient for the successful operation thereof, including,
but not limited to, those activities necessary to comply with
all federal and state requirements, including stormwater and
surface runoff water quality improvement activities.
The sanitary board may declare an emergency situation
in the event of collector line breaks or vital treatment plant
equipment failure and shall be exempted from competitive
bidding requirements and enter into direct purchase
agreements or contracts for the expenses. All public ways or
public works damaged or destroyed by the board in carrying
out its authority under this article shall be restored or repaired
by the board and placed in their original condition, as nearly
as practicable, if requested so to do by proper authority, out of
the funds provided by this article.
W. Va. Code § 16-13-3 (2016).
15
power that is expressly limited under West Virginia Code § 16-13-3 is the Sanitary
Board’s ability to commit to capital funding and borrowing.
Petitioner also argues that because, pursuant to West Virginia Code § 16
13-18, the Sanitary Board “may establish its own bylaws, rules and regulations for its
own governance,” it operates as an independent board appointed by the Town Council.
He argues that pursuant to West Virginia Code § 16-13-18(c), “the vice chairman . . .
shall hold office at the will of the sanitary board,” and thus, removal of the vice chairman
could only occur by the sanitary board, not the Town Council, or under West Virginia
Code § 6-6-7. Finally, Petitioner maintains that Respondents are estopped from arguing
that he was not an officer, because in order to terminate him under Municipal Code § 3
112, he had to be an “officer.”
Respondents assert that an officer on a Town Council appointed board or
authority is not necessarily a municipal officer for purposes of West Virginia Code § 6-6
7. Respondents warn that the effect of applying the strictures of West Virginia § 6-6-7 to
any county or municipal board would constitute a dramatic change in how localities
routinely function. Respondents emphasize that the Legislature explicitly delegated the
power to establish the organization and rules of the municipal sanitary boards to the
municipalities’ governing bodies, which they may establish “by ordinance.” W. Va.
Code § 16-13-18(a) (“The governing body shall provide by ordinance the organization of
16
the [sanitary board]. . .”) (emphasis added). They contend that by delegating the
authority of establishing the organization of the Sanitary Board to the Town of Meadow
Bridge “by ordinance,” the Municipal Code applies to the individuals appointed to the
Sanitary Board by the Town Council. Thus, they maintain that the removal of the
Petitioner pursuant to Municipal Code § 3-112 was entirely lawful.
Respondents additionally assert that while the Sanitary Board was, and is,
authorized to establish bylaws, rules, and regulations regarding its own governance
pursuant to West Virginia Code § 16-13-18(d), it did not. They contend that since no
bylaws or regulations were promulgated by the Sanitary Board regarding its governance
or the removal of officers that would displace or supersede the Municipal Code,
provisions related to removal of individuals appointed to the Sanitary Board in Municipal
Code § 3-112 governs removal of individuals appointed to the Sanitary Board by the
Town Council.
Alternatively, Respondents argue that if this Court finds that Petitioner was
entitled to the protections of West Virginia Code § 6-6-7, that statute expressly provides
for dismissal on “any of the grounds provided by any other statute.” Respondents
contend that because the Legislature delegated the authority to establish by ordinance the
organization of the Sanitary Board pursuant to West Virginia Code § 16-13-18(a),
Municipal Code §3-112 provides appropriate grounds under the “any other statute”
language in West Virginia Code § 6-6-7(a). Finally, they assert that as a matter of public
17
policy, extending the level of protection afforded by § 6-6-7 to a member of a sanitary
board, or any other town board or authority, and requiring that expenditure of resources
and time to remove a member, simply does not makes sense.13
We have recognized that there is a legal distinction between a “public
officer” and a “public employee” and that:
As a general rule it may be stated that a position is a public
office when it is created by law, with duties cast on the
incumbent which involve an exercise of some portion of the
sovereign power and in the performance of which the public
is concerned, and which are continuing in their nature and not
occasional or intermittent. But one who merely performs the
13
In its amicus brief, the West Virginia Municipal League identifies itself as a
statewide, non-profit, non-partisan, voluntary association of municipal governments,
including cities, towns, and villages, established in 1968 to support local governments
and advance the interests of the citizens who reside within them. It contends that each of
West Virginia’s 232 municipalities are members of the Municipal League. Urging the
Court to affirm the circuit court order, it asserts that it has an interest in the outcome of
this case because the application of the extraordinary process set forth in West Virginia
Code § 6-6-7 to the removal of public employees appointed to non-elected positions is
contrary to the intent of the legislature, contrary to the role of elected officials in the
oversight of appointees serving at the will and pleasure of the governing body or other
elected appointing official, and is an impracticable proposition that, if implemented,
would place an undue burden on both municipalities and the judiciary. Specifically, it
contends that municipalities would be faced with the inevitable choice of either leaving
on such boards or commissions non-elected appointed members who are ineffective
and/or engaging in misconduct, or pursuing a potentially long, expensive legal process
involving the expenditure of public funds and the time and resources of the City Council,
prosecuting attorneys, three judge filled by circuit judges from multiple counties, and this
Court. It maintains that sanitary board members are subject to substantial oversight by
the governing municipal body under West Virginia Code § 16-13-3, and do not have the
authority to exercise sovereign power on behalf of the municipality.
18
duties required of him by persons employing him under an
express or implied contract, though such persons themselves
be public officers, and though the employment be in or about
public work or business, is a mere employee.
State ex rel. Key v. Bond, 94 W.Va. 255, 260, 118 S.E. 276, 279 (1923). In State ex rel.
Carson v. Wood, 154 W. Va. 397, 175 S.E.2d 482 (1970), we considered whether a
petitioner was an officer of the State Road Commission or a mere employee for purposes
of determining whether he was a person who could be bribed under West Virginia Code §
61-5-5. We announced the following test for determining whether a position is an office
or a mere employment:
Among the criteria to be considered in determining whether a
position is an office or a mere employment are whether the
position was created by law; whether the position was
designated an office; whether the qualifications of the
appointee have been prescribed; whether the duties, tenure,
salary, bond and oath have been prescribed or required; and
whether the one occupying the position has been constituted a
representative of the sovereign.
Carson, 154 W.Va. at 397, 175 S.E.2d at 483, syl. pt. 5. Subsequently, in Christopher v.
City of Fairmont, 167 W. Va. 710, 280 S.E.2d 284 (1981), we utilized the factors set
forth in Carson to determine that a city water transportation and distribution supervisor
was a public employee rather than public officer, and thus, not entitled to civil service
procedural safeguards. Id. at 713, 280 S.E.2d at 286.
Utilizing the criteria established in Carson and applied in Christopher, the
circuit court determined that while the position of sanitary board member is established
19
by law and has a fixed tenure pursuant to West Virginia Code § 16-13-18 and Municipal
Code § 17-113, Petitioner fell short of establishing that the position was an “office” and
that, in his capacity as a member of the Sanitary Board, he was a town official. We
agree.
The circuit court properly determined that Petitioner’s position was created
by law pursuant to West Virginia Code §§ 16-13-2 and -18 and Municipal Code §17-113
and thus satisfied the first Carson factor. Similarly, the circuit court correctly found that
the second Carson factor was not satisfied because a sanitary board member is not
designated as an official in those same statutes or municipal ordinance. We find no
statute or ordinance expressly designating this position as a municipal office.14
As to the third Carson factor, the circuit court expressly found that
“[n]either West Virginia Code § 16-13-18 nor Municipal Code § 17-113 prescribe any
14
As the circuit court properly determined, there are only two references made in
West Virginia Code § 16-13-18 regarding an office or officer. The first reference states,
“[n]o officer or employee of the municipality, whether holding a paid or unpaid office, is
eligible for appointment to the sanitary board until at least one year after the expiration of
the term of his or her public office.” W. Va. Code § 16-13-18(c) (emphasis added). The
next reference states that “[t]he vice chairman, secretary and treasurer shall hold office at
the will of the sanitary board.” Id. (emphasis added). The latter does not relate to a board
member, but rather those offices that exist within the board and are, by statutory
directive, selected and controlled internally by the board members themselves. See W.
Va. Code § 16-13-18(c).
20
particular requirements or qualifications that must be met for a citizen of the town to be
appointed as a member of the sanitary board.”15 On appeal, Petitioner fails to identify
what, if any, qualifications for the position have been prescribed. Thus, we find no fault
with the circuit court’s determination that no qualifications of the appointee have been
prescribed.
The fourth factor we must consider is whether the duties, tenure, salary,
bond and oath have been prescribed. The circuit court determined that while the general
duties of the Sanitary Board and tenure for the position are prescribed by West Virginia
Code § 16-13-18, no particular salary, bond, or oath are prescribed or required. The
circuit court properly determined that while the subject statutes and ordinance prescribe
and outline numerous duties and obligations of the Sanitary Board as a whole, neither the
statutes nor the ordinance establish any specific duty or obligation on the part of a
15
The circuit court noted that West Virginia Code § 16-13-18 does establish that,
during the initial construction period, at least one appointee “must be a registered
professional engineer, except that if a registered professional is under contract for the
project, the member of the board is not required to include a registered professional
engineer.” The circuit court concluded that “as the facts of this case reflect that the
sanitary board at issue is not in the construction phase, this qualification or requirement is
not relevant to this Court’s determination that there are no established qualifications to
hold the Petitioner’s position on the Sanitary Board. W. Va. Code Ann. § 16-13-18
(West).”
21
member of the Sanitary Board.16 Moreover, while Petitioner was sworn in using a formal
style oath prior to accepting the position on the Sanitary Board, no such oath was
expressly required by statute or ordinance.
With respect to whether a bond was prescribed or required, the circuit court
specifically concluded that “while both the operative statute and ordinance reference a
bond, the statute does not require a bond and the ordinance specifically waives any
requirement for the posting of a bond for the Petitioner’s position on the . . . Board.” We
agree that West Virginia Code § 16-13-18 provides, in pertinent part, that “[e]ach
member shall give bond, if any, as required by ordinance,” and that Municipal Code § 17
113(3) provides that “[n]o bond shall be required of the Board members as such, but the
Treasurer, whether a member of the Board or not, shall give bond . . .” (emphasis added).
However, Petitioner makes a persuasive argument that because he handled money, he
was in fact required to have a bond under West Virginia Code § 6-2-11 and Municipal
Code § 17-113(8). As stated above, West Virginia Code § 6-2-11 provides that “[e]very
officer or employee of a municipality who handles public funds or property, . . . shall,
unless otherwise provided by law, give bond . . . .” (emphasis added). Furthermore,
16
For example, pursuant to West Virginia Code § 16-13-18, the “board may
employee engineers, architects, inspectors, superintendents, managers, collectors,
attorneys and other employees as in its judgment may be necessary in the execution of its
powers and duties. . . .” (emphasis added); see also Municipal Code § 17-113(4)(C)
(setting forth the same powers and duties of the Board).
22
Municipal Code § 17-113 (8) expressly requires that [t]he Sanitary Board may from time
to time, in its discretion, require any of its employees to furnish a good and suitable
indemnity bond . . . . The Board shall require all persons who collect or otherwise handle
funds of the Board to furnish a good and proper bond . . .” (emphasis added). Thus, if
Petitioner was required to handle funds or property of the Sanitary Board in his capacity
as vice chairman, a bond would in fact be required.
As for whether Petitioner’s salary was prescribed or required, the circuit
court properly determined that West Virginia Code § 16-13-18(d) does not prescribe a
particular salary. The statute provides, in pertinent part, that:
The members of the sanitary board are entitled to receive
compensation for their services, either as a salary or as
payments for meetings attended, as the governing body
determines, and are entitled to payment for their reasonable
expenses incurred in the performance of their duties. The
governing body shall fix the reasonable compensation of the
secretary and treasurer in its discretion, and shall fix the
amounts of bond to be given by the treasurer. All
compensation, together with the expenses previously referred
to in this section, shall be paid solely from funds provided
under the authority of this article. . . .
W. Va. Code § 16-13-18(d). Thus, while Petitioner was required to be compensated by
the Sanitary Board for his services, he was not entitled to receive a particular salary under
the statute.
23
Finally, we consider the fifth Carson requirement, which is whether the one
occupying the position has been constituted a representative of the sovereign. The circuit
court found:
[I]t is this Court’s opinion that, once a sanitary board is
created by a governing body, i.e., the Meadow Bridge Town
Council, it operates wholly within the confines of the
operative statutes and the town ordinance. At no point has this
Court discovered where a member of the Sanitary Board can
bind or obligate the Town Council. The opposite is actually
evidenced by the subject statutes.17 A member of the Sanitary
Board may very well constitute a representative of the
Sanitary Board, but it is this Court’s opinion that a Sanitary
Board member is not a representative of the Town Council.
We agree with the circuit court’s analysis of the applicable statutes and ordinances and
conclude that Petitioner has not demonstrated that he served as a representative of the
sovereign or the governing body in this case. As Respondents note, the Legislature
expressly delegated the municipalities’ governing bodies the power to establish “by
ordinance” the organization and rules of the municipal sanitary boards. Moreover, West
17
The circuit court stated that for example, under West Virginia Code § 16-13-3,
[t]he board shall have power to take all steps and proceedings
and to make and enter into all contracts or agreements
necessary or incidental to the performance of its duties and
the execution of its powers under this article: Provided, That
any contract relating to the financing of the acquisition or
construction of any works, or any trust indenture as provided
for, shall be approved by the governing body of the
municipality before the same shall be effective.
(emphasis added).
24
Virginia Code § 16-13-18(c) expressly provides that the Town Council retained the
power to appoint members of the Sanitary Board:
“The sanitary board shall be composed of either the mayor of
the municipality, or the city manager thereof, if the
municipality has a city manager form of government, and two
persons appointed by the governing body. . . .The mayor or
city manager shall act as chairman of the sanitary board,
which shall elect a vice chairman from its members and
designate a secretary and treasurer (but the secretary and the
treasurer may be one and the same) who need not be a
member or members of the sanitary board. The vice
chairman, secretary and treasurer shall hold office at the will
of the sanitary board.
(emphasis added).
While the Sanitary Board, which retained the authority to remove Petitioner
from his position as vice chairman, is authorized to establish bylaws, rules, and
regulations regarding its own governance pursuant to West Virginia Code § 16-13-18(d),
it did not do so. Since no bylaws or regulations were promulgated by the Sanitary Board
regarding its governance or the removal of officers that would displace or supersede the
Municipal Code, the provisions related to removal of individuals appointed to the
Sanitary Board in Municipal Code § 3-112 necessarily governed the removal of
individuals appointed to the Sanitary Board by the Town Council. Accordingly, we
conclude that the removal of the Petitioner pursuant to Municipal Code § 3-112 was
lawful in this case.
25
In Town of Davis v. Filler, 47 W. Va. 413, 25 S.E. 6 (1900), a similar case
decided long ago, we stated:
If a. . . mere appointee of a municipal corporation; I may say,
for this purpose, a mere employee, - is to have a fixed tenure
for a fixed term, without power in the council to remove him,
it would cramp the powers of the town, defeat the
performance of some of its essential functions, and be very
hurtful to public interests. Public policy overrules that
contention. But how as to law? This town exists under chapter
47, Code 1891. Section 15 provides that a superintendent of
roads, streets, and alleys shall be appointed by council, “to
continue in office during its pleasure.” I might stop here, as
that settles the controversy; but, if the power of removal were
not given by the Code, it would exist, because the power to
appoint carries with it as an incident the power to remove, in
the absence of constitution or statutory restraint of such
power. It is called by the United States Supreme Court, as it
is, “a sound and necessary rule.” Hennen’s Cases, 13 Pet.
230, 10 L. Ed. 138. Much authority sustains it. Mechem, Pub.
Off. § 445. “Where the power of appointment is conferred in
general terms, without restriction, the power of removal in the
discretion and at the will of the appointing power is implied,
and always exists, unless restrained and limited by some
provision of law.” Trainor v. Board (Mich.) 15 L. R. A. 95,
note (s. c. 50 N. W. 809).
....
It would be a costly consumption of time and money to
require a council to have an impeachment trial over its mere
appointees, who are not officers in the legal sense, but mere
employees, as shown in Trainor v. Board (Mich.) 50 N. W.
809, 15 L. R. A. 97.
Id. at 413, 35 S.E. at 7. Echoing these same concerns, the circuit court in this case aptly
noted:
26
It is difficult for this Court to fathom the slippery slope
that we may embark upon by extending the rather
comprehensive and substantial protections of § 6-6-7 to
various members of county and municipal boards,
committees, commissions, and authorities. Simply put, undue
time and resources would be expended across this State by
counties and municipalities, prosecutors and attorney
generals, and multiple members of the judiciary, at a time in
our history where those resources are more valuable, and
spread thinner, than ever before.
The decision to develop various boards, committees,
commissions and authorities to help the governing body
promote the best interests of its citizens, and the subsequent
decision to appoint members to serve thereon, will become a
lengthy, detailed process, as once the decision is made it
cannot be simply undone. Likewise, a decision to seek
removal may be delayed or thwarted due to a possible lack or
resources inherently necessary to prosecute the removal
action and there may be an observed hesitancy to proceed
without a significantly substantiated cause.
The decision of an electorally checked and regulated
governing body will be replaced by the yoke and bridle; the
oversight and involvement of the executive branch as well as
the already overburdened judicial system. The courts, rather
than the electorate, will become the overseers shackled with
the task of confirming the decisions of the governing body.
....
[e]xtending such a heightened level of a protection to a
member of a sanitary board is, comparatively speaking, akin
to placing an elevator in an outhouse or killing a gnat with a
gun; providing this level of protection [(the protections
afforded by West Virginia Code § 6-6-7)], and expending this
level of resources and time, for the removal of a sanitary
board member, simply does not fit. . . .
27
For all these reasons, we conclude that a municipal sanitary board member
does not hold a municipal office and thus is not a municipal officer protected by West
Virginia Code § 6-6-7 in the event of involuntary removal.18 Because Petitioner has
failed to establish that his position as a member of the Sanitary Board was a municipal
office, he has no clear legal right to the relief he demands.
IV. CONCLUSION
Accordingly, we affirm the March 1, 2016, order of the Circuit Court of
Fayette County denying Petitioner’s request for relief and dismissing his petition for a
writ of mandamus.
Affirmed.
18
Because we reach this conclusion, Petitioner’s remaining assignments of error,
which are premised on his contention that he was a municipal officer, need not be
addressed.
28