THOMAS SMITH,

                  Grievant,

      v.

DOCKET NO. 99-HHR-439

WEST VIRGINIA DEPARTMENT OF
HEALTH AND HUMAN RESOURCES and
DIVISION OF PERSONNEL,

                  Respondents.

D E C I S I O N


      Grievant, Thomas Smith, filed this grievance on August 5, 1999, against Respondents West Virginia Department of Health and Human Resources (“DHHR”) and the Division of Personnel (“DOP”):

      A level one decision was issued on August 13, 1999, and Grievant appealed to level two that same date. A level two decision was issued on August 23, 1999. Grievant then appealed to level four, improperly bypassing level three. Since W. Va. Code § 29-6A-4 does not allow for an appeal from level two to level four, this Grievance Board remandedthis matter to level three by Order of Remand dated September 1, 1999. DOP was joined as an indispensable party, and the level three hearing on this matter was held on September 29, 1999. The level three decision denying the grievance was issued on October 5, 1999, and Grievant appealed to level four on October 13, 1999. The parties agreed that the matter could be submitted on the record developed at level three, to be supplemented by proposed findings of fact and conclusions of law by no later than January 7, 2000. At level three, Grievant appeared pro se, DHHR was represented by David Alter, and DOP was represented by Jack Sells, Senior Personnel Specialist.
SUMMARY OF EVIDENCE

Grievant's Exhibits

Ex. 1 -

Ex. 2 - Ex. 3 - Ex. 4 -
DHHR Exhibits

None.

DOP Exhibits

Ex. 1 -

Ex. 2 - Ex. 3 - Ex. 4 - Ex. 5 - Ex. 6 -                      Ex. 7 -
Testimony

      Grievant testified in his own behalf. Respondents presented the testimony of Jack Sells.

FINDINGS OF FACT

      1.      Grievant is employed by DHHR in its Child Support Enforcement Division as a Legal Assistant.
      2.      Grievant was employed by DHHR as a six-month temporary employee serving as Legal Assistant, on January 3, 1996. DOP Exs. 5, 6.
      3.      Grievant's six-month temporary appointment terminated on July 3, 1996. DOP Ex. 6.
      4.      On November 1, 1996, Grievant began working for DHHR as a full-time permanent employee. DOP Ex. 6.
      5.      As of June 30, 1999, Grievant had three (3) years and fifty-nine (59) days' tenure with the State of West Virginia. G. Ex. 3.
      6.      Despite Grievant's three years of service with the State of West Virginia, he did not receive annual increment pay for the 1998-99 fiscal year.

DISCUSSION

      Grievant maintains he should have received fifty dollars ($50.00) times his total three full years of service in the 1998-99 fiscal year, because notwithstanding the fact he served under a temporary appointment from January 3 through July 3, 1996, he meets the definition of an “eligible employee” as defined by DOP's Annual Increment Policy.
       Respondents argue that, although Grievant had the required three years' tenure with the State on June 30, 1999, he is not entitled to annual increment for fiscal year 1998- 99 because the period of time he served as a temporary employee does not count toward increment pay eligibility.
      Pursuant to W. Va. Code § 5-5-2, effective July 1, 1996, every eligible employee of the State of West Virginia with three or more “years of service” shall receive fifty dollars times the employee's number of years of service. No more than twenty “years of service” with the State can be applied toward the calculation of increment pay for eligible employees. W. Va. Code § 5-5-1 defines “years of service” as “full years of totaled service as an employee of the State of West Virginia.”
      In accordance with W. Va. Code § 5-5-1, DOP developed a policy which covers the payment of annual salary increments. Pursuant to the Code and DOP's policy, an “eligible employee” is defined as “any regular full-time employee of the State or any spending unit thereof who is eligible for membership in any State retirement system of the State of West Virginia or any other retirement plan authorized by the State. . .”. DOP Ex. 1.
      The West Virginia Public Employees Retirement Act defines an “employee” as “any person who serves regularly as an officer or employee, full time, on a salary basis, whosetenure is not restricted as to temporary or provisional appointment . . .”. See W. Va. Code § 5-10-2(6)(emphasis added); DOP Ex. 2. The West Virginia Public Employees Retirement System's Administrative Rule, § 162-5-7, defines “full-time employment” as “[e]mployment of an employee by a participating public employer in a position which normally requires twelve (12) months per year service and/or requires at least one thousand forty (1,040) hours per year service in that position . . .”. DOP Ex. 3.
      It is well established that “[i]nterpretations of statutes by bodies charged with their administration are given great weight unless clearly erroneous.” Syl. Pt. 7, Lincoln County Bd. of Educ. v. Adkins, 188 W. Va. 430, 424 S.E.2d 775 (W. Va. 1992); Syl. Pt. 3, Smith v. Bd. of Educ. of County of Logan, 176 W. Va. 63, 341 S.E.2d 685 (1985); Syl. Pt. 4, Security Nat'l Bank and Trust Co. v. First W. Va. Bancorp, Inc., 166 W. Va. 775, 277 S.E.2d 613 (1981). DOP is responsible for the administration of W. Va. Code § 5-5-1, et seq., and Grievant has failed to demonstrate DOP abused the authority conferred upon it.
CONCLUSION OF LAW

      After careful consideration of all evidence presented at level three, along with the applicable law, the undersigned finds Grievant has failed to prove by a preponderance of the evidence that he is entitled to annual increment pay for the fiscal year ending June 30, 1999. As the evidence revealed, Grievant served under a six-month temporary appointment from January 3, 1996 through July 3, 1996. During this period, Grievant was not eligible for membership in the Public Employees Retirement System. Although the tenure Grievant accrued during the period in question entitled him to State benefits suchas annual and sick leave, it is clear that the legislature did not intend time spent serving under a temporary appointment to be considered when calculating annual increments.
      Accordingly, this grievance is DENIED.
      Any party may appeal this decision to the Circuit Court of Kanawha County or to the circuit court of the county in which the grievance occurred. Any such appeal must be filed within thirty (30) days of receipt of this decision. W. Va. Code § 29-6A-7 (1998). Neither the West Virginia Education and State Employees Grievance Board nor any of its Administrative Law Judges is a party to such appeal, and should not be so named. However, the appealing party is required by W. Va. Code § 29A-5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing party must also provide the Board with the civil action number so that the record can be prepared and properly transmitted to the appropriate circuit court.

                                                 MARY JO SWARTZ
                                                 Administrative Law Judge

Dated: January 31, 2000