DONALD WYANT,
            Grievant,

v.                                                 Docket No. 00-DOH-219

WEST VIRGINIA DEPARTMENT OF
TRANSPORTATION/DIVISION OF HIGHWAYS,
            Respondent.

D E C I S I O N

      Grievant, Donald Wyant, filed this grievance against his employer, the Division of Highways ("DOH"), March 2, 2000, alleging nepotism in the filling of a Transportation Crew Supervisor I ("TCS I") position. At Level IV, he added the argument that he was the most qualified applicant for the position.   (See footnote 1) 
      This grievance was denied at all lower levels, and Grievant originally appealed to Level IV on June 6, 2000, but the information was insufficient to process the grievance. Grievant submitted a grievance form on June 29, 2000. The Level IV hearing was held on September 5, 2000. This grievance became mature for decision on October 3, 2000, after receipt of the parties' proposed findings of fact and conclusions of law.   (See footnote 2) 

Issues and Arguments

      Grievant argues the selection of Brian Herdman to fill the position of TCS I in Mason County violates DOH's Nepotism Policy, as the successful applicant will, at least at times,be indirectly supervising his brother, Alex Herdman.   (See footnote 3)  Grievant also argued that attorney fees should be paid at Level IV. Respondent argues Mr. B. Herdman will seldom indirectly supervise his brother and points to the new organizational chart with the planned substation for Mason County. Respondent also noted the employment of Mr. B. Herdman in the position does not violate the Division of Personnel's Nepotism Policy.
      After a detailed review of the record in its entirety, the undersigned Administrative Law Judge makes the following Findings of Fact.
Findings of Fact

      1.      In 1985, DOH adopted a nepotism policy which is entitled "Procedure - Employment of Immediate Family Members." This Policy's purpose was to detail the guidelines for DOH's employment of family members. It defined nepotism as "the act of favoritism shown to immediate family members especially by employing them into desirable positions." Included in the definition of immediate family members was "brother." This policy further stated:
      2.      This Policy did not have either a grandfather clause or resolution clause as is usually included in nepotism policies.
      3.      At some point in time unclear from the record, the Division of Personnel ("DOP") adopted a Nepotism Policy at § 18.2 of its Administrative Rules which states:

      
      4.      In DOP's Administrative Rules, "Immediate family" is defined at § 3.44 to mean, "the parents, children, siblings, spouse, parents-in-law, children-in-law, grandparents, grandchildren, step-parents, step-siblings, stepchildren, and individuals in a legal guardianship relationship."
      5.       Section 3.8 of DOP's Administrative Rules defines "appointing authority" as "[t]he executive or administrative head of an agency who is authorized by statute to appoint employees in the classified or classified-exempt service. By written notification tothe Director of Personnel, the appointing authority may delegate specific powers authorized by this rule to persons who satisfy the definition of employee as established in this rule."
      6.      The successful applicant, Mr. B. Herdman, has been employed by DOH, this last time, since 1980. He was employed with DOH prior to 1980, but was unsure of the length of time.
      7.      The successful applicant's brother, Mr. A. Herdman, has been employed by DOH since 1978, and he is currently classified as an Equipment Operator III.
      8.      Grievant has been employed by Respondent since 1980.
      9.      Prior to his selection for this position, Mr. B. Herdman was a Transportation Crew Chief ("TCC"). In this position, Mr. B. Herdman directly supervised his brother Mr. A. Herdman.   (See footnote 4) 
      10.      Most, if not all, of the employees were aware of this familial relationship, but no complaints were made about this direct supervision. The explanation given by Grievant for this failure to complain was, "there was no money in it."
      11.      On November 23, 1999, District One posted a TCS I position for Mason County. Four applicants were interviewed, including Grievant. All applicants were considered qualified for the position. On February 16, 2000, Mr. B. Herdman was selected for the position.      12.      One of the interviewers, Mr. Waterson, the former Highway Administrator III or Mason County Supervisor, was aware of the familial relationship. He was unaware of any Nepotism Policy. The other interviewers were unaware of the familial relationship.
      13.      The plan for Mason County is to divide the work force into two sections, one on each side of the river. This has been Mr. Jesse Haynes', the District One Administrator, plan for some time, and it was his reason and rational for requesting the TCS I position from DOH. The plan is for Mr. Ross Roush, TCS II, to supervise two work crews, and the TCS I to supervise two work crews at the subsection. Mr. Haynes is currently looking for space for the subsection, but the plan is not yet in place.
      14.      On or about March 1, 2000, this grievance was filed.
      15.      When Mr. Haynes learned of the grievance, he asked DOH's Legal Division, on March 20, 2000, whether the appointment of Mr. B. Herdman violated the Nepotism Policy.
      16.      On April 14, 2000, Mr. Anthony Halkias, in charge of DOH's Legal Division responded that after a review of DOP's Nepotism Policy it would not appear that Mr. B. Herdman's "occasional indirect supervision of his brother would violate this rule." Grt. Ex. No. 7, at Level IV. This opinion did not speak to DOH's Nepotism Policy. Subsequently, Mr. Haynes denied the grievance on April 14, 2000.

Discussion
      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving his grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Howell v. W. Va. Dep't of Health & Human Resources, Docket No. 89-DHS-72 (Nov. 29, 1990). See W. Va. Code § 29-6A-6. See also Holly v. Logan County Bd. of Educ., Docket No. 96-23- 174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988).
      This grievance presents an interesting question, and one that has not been previously dealt with by the Grievance Board. It is clear from the evidence that Mr. B. Herdman will occasionally, indirectly supervise his brother, and in times of emergency could occasionally, directly supervise his brother. It is also clear that returning Mr. B. Herdman to his former position assures that Mr. B. Herdman will directly supervise his brother.
      The undersigned Administrative Law Judge finds the placement of Mr. B. Herdman in the TCS I position does not violate DOP's Nepotism Policy, as Mr. B. Herdman's direct supervision of his brother would be very infrequent. It is also noted there were no complaints when Mr. B. Herdman routinely, directly supervised his brother, so none would be expected now that this supervision is less.
      The undersigned Administrative Law Judge also finds DOH's policy, does not preclude the employment of Mr. B. Herdman as the TCS I for a variety of reasons, most of which have to do with the issues of fairness and common sense.       The purpose of the grievance procedure is to provide equitable and consistent resolution of employment grievances. W. Va. Code § 29-6A-1. An administrative law judge may
      
W. Va. Code § 29-6A-5(b).
      It is assumed that fair and equitable relief means all employees involved in the situation, not just a grievant. In this situation, it appears the most equitable action is to allow Mr. B. Herdman to remain in his position.
      In reviewing DOH's Nepotism Policy, the undersigned Administrative Law Judge finds it to be poorly written and in need of review and update. While there is a technical violation of this broadly worded policy, the focus of the Policy is the employment or transfer of family members into the same organizational units resulting in "direct or indirect supervision of a [family member]". Indeed, the Section's title is "Employment of Immediate Family Members." Mr. B. Herdman and Mr. A. Herdman were already employed at the time the Policy went into effect, and there was no change as the result of this Policy.
      Second, there was no indication that Mr. B. Herdman's promotion to TCS I had any political overtones in any way. The supervisor who recommended Mr. B. Herdman's promotion was not related to Mr. B. Herdman. Third, to return Mr. B. Herdman to his priorposition in which he served for some time would be in clear violation of DOP's and DOH's policy.
      Fourthly, DOH's policy does not speak to a method of resolution if a change occurs in the status of employees, such as marriage or promotion, so there is no mandated answer for the problem as there is in DOP's policy. If Mr. B. Herdman is returned to his former position, he will then directly supervise his brother. It is hard to believe that Mr. B. Herdman should be demoted, especially since he qualified to receive a promotion. Should Mr. A. Herdman or Mr. B. Herdman be required to be transferred to another place, and where would that place be in a county organization? As previously stated there are no clear cut answers for this situation. If the goal of a Nepotism Policy is to protect the public, as stated in DOP's policy, the return of Mr. B. Herdman to his former position would not be the correct action.
      Finally, it is important to recognize the reality of small towns and less populated counties. Within many areas of West Virginia, the State is the main employer for the working population. It would seem unfair to prevent long-term workers from serving in positions they have earned, when there is no violation of DOP's Rule, and the decision would be based on a poorly written Policy fifteen years old.
      Thus, the undersigned Administrative Law Judge finds the fairest action in this grievance is to allow Mr. B. Herdman to remain in the position he received. Care should be taken that no violations of DOP's Nepotism Policy occur. The areas of concern are: reviewing or evaluating Mr. A. Herdman's work, and discussing specific assignments,compensation, or discipline.   (See footnote 5)  If at some later time a problem arises in relation to this indirect supervision then complaints can be raised. However, it is not expected that this will occur, as there were no complaints when Mr. B. Herdman directly supervised his brother.
      As for Grievant's argument that he is entitled to attorney fees based on statements in "An Employee's Guide to the Education and State Employees Grievance Procedure" Handbook, published by DOP, this argument is without merit. This Handbook, at Number 22 states:

       W. Va. Code § 29-6A-10 controls this issue and states:


       Clearly, the undersigned Administrative Law Judge has no authority to award attorney's fees under the law. Stollings v. Div. of Envtl. Protection, Docket No. 97-DEP- 411 (June 8, 1998); Chafin v. Boone County Health Dep't and Div. of Personnel, Docket No. 95-BCHD-362 (June 21, 1996). See e.g., Smarr v. Wood County Bd. of Educ., Docket No. 54-86-062 (June 16, 1986).
      The above-discussion will be supplemented by the following Conclusions of Law.
Conclusions of Law

      1.      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving his grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Howell v. W. Va. Dep't of Health & Human Resources, Docket No. 89-DHS-72 (Nov. 29, 1990). See W. Va. Code § 29-6A-6. See also Holly v. Logan County Bd. of Educ., Docket No. 96- 23-174 (Apr. 30, 1997) ; Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988).
      2.      Mr. B. Herdman's employment as TCS I, even with indirect supervision of his brother, does not violate DOP's Nepotism Policy.
      3.      The two foci of DOH's Nepotism Policy are the employment and transfer of immediate family members into the same organizational unit, and the recommendation bya supervisor of an immediate family member for employment into the same organizational unit.
      4.      Mr. B. Herdman's employment as TCS I is a technical violation of DOH"s Nepotism Policy, as he would occasionally, indirectly supervise his brother.
      5.      Mr. B. Herdman's supervision of his brother as a Crew Leader was a clear violation of DOH's and DOP's Nepotism Policies.
      6.      As Mr. B. Herdman's supervision of his brother is only indirect, the best and most equitable solution for this thorny situation is for Mr. B. Herdman to be allowed to maintain his TCS I position, with adherence to rules outlined by DOP's Nepotism Policy. W. Va. Code § 29-6A-5(b).
      7.      Statements within an employee's handbook do not override a statute's clear directions. W. Va. Code § 29-6A-10.
      Accordingly, this grievance is DENIED.

      Any party, or the West Virginia Division of Personnel, 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. Theappealing 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.
                                                                                                  JANIS I. REYNOLDS
                                           ADMINISTRATIVE LAW JUDGE

Dated: November 29, 2000       


Footnote: 1
      Apparently this argument was abandoned post-hearing, as Grievant argued the selection decision should be negated, and the selection redone.
Footnote: 2
      Grievant was represented by attorney Andrew Katz, and Respondent DOH was represented by attorney Jennifer Francis.
Footnote: 3
      Grievant's argument about the change in the class specification for TCS I, from three or more crews, to, two or more crews, as some how being evidence of a plan or subsequently invented reason to support Mr. B. Herdman in the position is without merit. First, there was no evidence submitted to support this theory. Second, the undersigned Administrative Law Judge takes administrative notice that a change in a class specification is controlled by the Division of Personnel, requires time for discussion and implementation, and does not occur in order to support a post-grievance rationale.
Footnote: 4
      How frequently Mr. B. Herdman directly supervised Mr. A. Herdman as a Crew Leader was unclear from the record.
Footnote: 5
      Management's discussion of the assignments for the TCC's and their crews would not violate the Nepotism Policy; however, Mr. B. Herdman should not specifically or directly assign Mr. A. Herdman to a particular duty unless an unplanned emergency occurs.
Footnote: 6
      This Code Section states: "[a]ny employer failing to comply with the provisions of this article may be compelled to do so by mandamus proceeding and shall be liable to any party prevailing against the employer for court costs and attorney fees, as determined and established by the court."