GINGER LYALL,   (See footnote 1) 

                  Grievant,

                                                Docket No. 00-CORR-007

DENMAR CORRECTIONAL CENTER/
WEST VIRGINIA DIVISION OF CORRECTIONS,

                  Respondent.

D E C I S I O N

      This grievance was filed on or about September 10, 1999, by Grievant, Ginger Lyall, against her employer, Respondent, Denmar Correctional Center/West Virginia Division of Corrections ("Corrections"), alleging she was unfairly discriminated against because of her former relationship with Lonnie Kishpaugh, when she was not promoted to a position for which she had been selected. As relief Grievant sought to:

      The parties agree that what occurred was that, although Grievant and Lonnie Kishpaugh were legally separated and waiting for their divorce to be final, at the time Grievant interviewed for a posted Case Manager I vacancy at Denmar Correctional Center, she and Mr. Kishpaugh were married; and Mr. Kishpaugh served on the interview board which interviewed and recommended Grievant for the position. Respondent argued the Division of Personnel's nepotism policy precludes it from placing Grievant in the position, and that a new interview board must be convened, with Mr. Kishpaugh not serving on the board. Grievant argues Corrections has not applied the nepotism policy consistently and fairly, and therefore, should be precluded from applying it in this situation. Grievant did not pursue a discrimination claim.
      The following Findings of Fact are made based upon the record developed at Levels III and IV.
Findings of Fact

      1.      Grievant is employed by Corrections as a Correctional Counselor I at Denmar Correctional Center. She has been employed at the facility since September 1994.
      2.      On July 22, 1999, Corrections posted a Case Manager I vacancy at Denmar. Grievant and five other Corrections employees applied for the position.
      3.      On August 20,1999, Grievant was interviewed for the Case Manager I vacancy by an interview board appointed by Warden Mark Williamson. The board members were Lonnie Kishpaugh, Charlie Burke, and Neil Craigover.
      4.      Mr. Kishpaugh was the lead interviewer. He asked each applicant basically the same questions related to report writing, typing skills, responsibility, and delegation of authority. He approached each interview in the same manner.
      5.      Each member of the interview board decided that Grievant should be recommended for the position. Mr. Craigover recommended Grievant because she was the best qualified, and she was already performing the duties of the position. Mr. Kishpaugh did not influence his choice, nor did he attempt to do so. Mr. Craigover and Mr. Burke told Mr. Kishpaugh they believed Grievant should be recommended for the position, but he did not share with them who his choice was. Mr. Kishpaugh recommended to Warden Williamson that Grievant be placed in the position, and he accepted the recommendation, and selected Grievant for the position.
      6.      Mr. Kishpaugh is the Associate Warden of Treatment and Programs. At the time of the interview he was a Unit Manager. He is not and was not the appointing authority.
      7.      At the time of the interview, Grievant and Mr. Kishpaugh were awaiting the finalization of their divorce, but they were still married. They have been legally separated since December 2, 1998, when an Order was entered by the Circuit Court of GreenbrierCounty to that effect. Mr. Kishpaugh has been living with another woman since May 1997. Grievant has had no personal relationship with Mr. Kishpaugh since that time, and did not consider him to be a family member. The divorce was final on November 8, 1999.
      8.      On August 23, 1999, Denmar Correctional Center's Warden, Mark Williamson, sent Grievant a letter notifying her that she had been selected for the Case Manager position. On September 7, 1999, Warden Williamson told Grievant he was sorry, but he could not place her in the Case Manager position because she and Mr. Kishpaugh were still married, and the nepotism policy precluded Mr. Kishpaugh from sitting on the interview board. Grievant received a letter dated September 7, 1999, rescinding the promotion.
      9.      Warden Williamson became the warden at Denmar Correctional Center in October 1998. He was not aware that Grievant and Mr. Kishpaugh were married until he asked Mr. Kishpaugh on August 31, 1999, after the former warden, Steve Yardley, told him at a meeting near the end of August 1999, that he had been told they were married. Although Warden Williamson was aware that Grievant and Mr. Kishpaugh had the same last name, he assumed they were divorced, because they were in the same unit when he became warden, and he did not believe that would be the case if they were married or were otherwise related.
      10.      Mr. Kishpaugh directly supervised Grievant for four months during 1999 while they were married, but their divorce was pending. Prior to that, he completed her performance evaluation for 1997 and 1998, and he was in her chain of command as Unit Manager of her unit from September 1997; however, a Case Manager directly supervised her.
      11.      Grievant had interviewed for two other Case Manager positions at Denmar Correctional Center, and Mr. Kishpaugh had served on the interview boards for both ofthose positions. She was not selected for either of those positions, and the nepotism policy was never mentioned.
      12.      In August 1997, when Grievant applied for the Correctional Counselor I position which she now holds, then Warden Yardley spoke with Grievant and Mr. Kishpaugh, and asked if they were still getting a divorce. They confirmed that they were, and Mr. Yardley told them he would have to talk to someone in Charleston to see whether she could apply for the job because Mr. Kishpaugh would be her supervisor if she were selected. He later told Grievant she could apply for the job.
      13.      Warden Yardley had spoken to Hilda Williams, Corrections' Director of Human Resources. Ms. Williams was under the impression that the divorce would be final in 30 days. She told Mr. Yardley he could place Grievant in the position, as it would take about 30 days to get the paperwork processed to place Grievant in the position, and once the divorce was final, there would be no problem. Warden Yardley did not later inquire as to whether the divorce became final within 30 days, and the issue was never brought up again until August 31, 1999.
      14.      It was common knowledge at Denmar Correctional Center that Grievant and Mr. Kishpaugh were getting a divorce, but that they were still married.
Discussion

      Grievant bears the burden of proving her allegations by a preponderance of the evidence. W. Va. Code § 29-6A-6. Mowery v. W. Va. Dep't of Natural Resources, Docket No. 96-DNR-218 (May 30, 1997).
      Corrections did not dispute that, but for the nepotism policy, Grievant would have been placed in the Case Manager position. It argued that, even though Grievant was separated from Mr. Kishpaugh, and had been separated from him for a long time, the nepotism policy, by its terms, applied to their relationship, and precluded Corrections from placing Grievant in the position due to Mr. Kishpaugh's service on the interview board. Warden Williamson believed the selection process had been tainted by Mr. Kishpaugh's service on the interview board. Corrections believes a new interview board should be convened, and has offered this solution, if the grievance were withdrawn. Grievant has rejected this offer.
      Grievant argued that the nepotism policy has not been applied in a consistent and impartial manner. She pointed to the fact that Mr. Kishpaugh supervised her for an extended period of time, and to the fact that he had sat on two other interview boards when she was an applicant. She noted that she was not selected for either of those positions, and no one had a problem with that. She also relied upon the fact that Corrections continued to allow Mr. Kishpaugh to supervise her after August 31, 1999. She pointed out that none of the other applicants had complained about the process. Finally, she voiced her opinion that this is ridiculous, not only because Mr. Kishpaugh has supervised her for a long time, but also because they have not lived as husband and wife, or acted as such, for over two years. She and Mr. Kishpaugh had severed their marital relationship long ago, and but for twists of fate which delayed the divorce being final, they would not have been married on paper.
      Corrections responded that it did not knowingly condone Mr. Kishpaugh supervising his wife, and had the warden realized the Kishpaughs were still married, he would have taken action to enforce the nepotism policy. It argued that, once it discovered the divorce was not final, it had no choice but to void the selection process, and start over. Warden Williamson stated he took no action to end Mr. Kishpaugh's supervision of Grievant because of the pending grievance.
      The Division of Personnel's nepotism policy is found at § 18.2 of its Administrative Rule, and provides as follows:

“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.” Section 3.8 of the Administrative Rule 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 to the 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.”

Jones v. W. Va. Dep't of Educ., Docket No. 00-DOE-108 (May 23, 2000). Thus, the Division of Personnel's interpretation of the nepotism policy is entitled to deference, unlessit is contrary to the plain meaning of the language, is inherently unreasonable, or is arbitrary and capricious. Dyer, supra.
      Although Mr. Kishpaugh was not the appointing authority, so that the first sentence of the nepotism policy does not apply here, the policy also states that the employment of relatives of any agency employee is to be administered in a consistent and impartial manner, and that “no employee shall . . . take part in discussions concerning employment, assignment, compensation, discipline or related matters involving a member of his or her immediate family.” Jack Sells, Senior Employee Specialist in the Employee Relations Section of the Division of Personnel, testified at Level III. He advised that the Employee Relations Section is responsible for interpreting and applying federal and state laws, and Personnel's rules and regulations. He explained that in applying the nepotism policy to an interview board, if a board member is an immediate family member of an applicant, he:

He believed that the definition of immediate family included persons who are married but legally separated.
      The undersigned finds that, although Grievant and Mr. Kishpaugh were legally separated, and had been for a long time, they were still, by definition, immediate family members for purposes of applying the nepotism policy. It should have been obvious to everyone that it is not a good idea for an employee to sit on an interview board when his spouse is an applicant. Corrections cannot be faulted for finding this to be wrong. However, Mr. Sells' interpretation of the policy does not require that the selection be voided under the facts presented here.
      The members of the interview board stated they had each reached their own decisions that Grievant was the best person for the posted position, without any suggestion from Mr. Kishpaugh one way or the other. In fact, neither of the other membersof the interview board even knew who Mr. Kishpaugh thought should be selected, as he did not tell them. He did nothing to attempt to influence the other members of the interview board to select Grievant, and there have been no allegations that he did. The other two members arrived at their decisions independently, based upon the fact that Grievant was already competently performing the duties of the position. According to Mr. Sells, this is all that is required.
      Further, Warden Williamson testified that he had never observed any problems from Mr. Kishpaugh supervising Grievant. Grievant and Mr. Kishpaugh have apparently been able to effectively separate their personal differences from their professional responsibilities, and both have prospered professionally with Mr. Kishpaugh as Grievant's supervisor, as has the institution.
      Grievant is the only one here who has suffered from any of this. Even though she was not placed in the posted position and given the corresponding pay increase, several witnesses testified that she continued to perform at least some of the duties of the posted position. Further, Corrections has not applied the nepotism policy in a consistent manner. Mr. Kishpaugh supervised Grievant for a long time, or had been in her chain of command. He had completed her performance evaluations for two years. These actions were clearly in violation of the nepotism policy. Mr. Kishpaugh had also sat on two other interview boards where she was an applicant. While Warden Williamson was not aware that Grievant and Mr. Kishpaugh were married, surely Corrections' personnel records reflected this, and it was common knowledge at the institution. Warden Yardley knew Grievant and Mr. Kishpaugh were married. He testified that when Grievant was placed in the Correctional Counselor I position in 1997, Grievant and Mr. Kishpaugh told him the divorce would be final in 30 days. Both Grievant and Mr. Kishpaugh denied they had made such a statement, pointing out that they had no way to know when the divorce would be final. Warden Yardley never inquired after that as to their marital status.      Although this situation should have never occurred, the selection process was fair under this unique factual pattern, and Grievant should be placed in the position, effective 30 days from her selection on August 23, 1999.
      The following Conclusions of Law support the Decision reached.
Conclusions of Law

      1.      Grievant bears the burden of proving her allegations by a preponderance of the evidence. W. Va. Code § 29-6A-6. Mowery v. W. Va. Dep't of Natural Resources, Docket No. 96-DNR-218 (May 30, 1997).
      2.      The Division of Personnel's nepotism policy is found at § 18.2 of its Administrative Rule, and provides, in pertinent part, as follows:
      3.      “[W]here the plain language of a policy does not compel a different result, deference must be extended to the agency in interpreting its own policies. See Dyer v. Lincoln County Bd. of Educ., Docket No. 95-22-494 (June 28, 1996). Where the language in a policy is either ambiguous or susceptible to varying interpretations, this Grievance Board will give reasonable deference to the agency's interpretation of its own policy. See Dyer, supra; Edwards v. W. Va. Parkways Dev. and Tourism Auth., Docket No. 97- PEDTA- 420 (May 7, 1998). See generally Blankenship, supra; Princeton Community Hosp. v. State Health Planning & Dev. Agency, 174 W. Va. 558, 328 S.E.2d 164 (1985); Jones v. Bd. of Trustees, Docket No. 94-MBOT-978 (Feb. 29, 1996); Foss v. Concord College, Docket No. 91-BOD-351 (Feb. 19, 1993).” Jones v. W. Va. Dep't of Educ., Docket No. 00-DOE-108 (May 23, 2000). Thus, the Division of Personnel's interpretation of the nepotism policy is entitled to deference, unless it is contrary to the plain meaning of the language, is inherently unreasonable, or is arbitrary and capricious. Dyer, supra.      4.      A wife is an immediate family member of her husband, under the definitions found in the nepotism policy, even if they are legally separated and waiting for a final divorce order.
      5.      Corrections has not applied the nepotism policy in a consistent manner with regard to Grievant and Mr. Kishpaugh.
      6.      Mr. Kishpaugh did not attempt to influence the selection process, and under the unique facts here, the nepotism policy was not violated.

      Accordingly, this grievance is GRANTED. Respondent is ORDERED to place Grievant in the Case Manager I vacancy at Denmar effective September 23, 1999, and to pay her back pay from that date in the amount of the difference in her pay as a Correctional Counselor, and the pay she would have received as a Case Manager I, plus interest at the statutory rate.

      Any party or the Division of Personnel may appeal this Decision to the circuit court of the county in which the grievance arose, or the Circuit Court of Kanawha County. 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 Grievance Board with the civil action number so that the record can be prepared and transmitted to the circuit court.

                                                 __________________________
                                                      BRENDA L. GOULD
                                                 Administrative Law Judge
Date:      July 28, 2000


Footnote: 1
       This grievance was originally styled Ginger Kishpaugh Lyall, due to the fact that Grievant's name was Ginger Kishpaugh at the time the grievance was filed. By Final Divorce Order entered November 8, 1999, by the Circuit Court of Greenbrier County, Grievant's maiden name was restored, and her name was legally changed to Ginger G. Lyall. Accordingly, the undersigned has eliminated Kishpaugh from the style of the grievance.
Footnote: 2
       This Grievance Board has no authority to award attorney fees. 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).
Footnote: 3
       The parties agreed to waive Level I, and Grievant proceeded to Level II on September 10, 1999. A Level II conference was held, and the grievance was denied at Level II on September 15, 1999. Grievant appealed to Level III where a hearing was held on December 17, 1999. A decision denying the grievance was issued on December 23, 1999. Grievant filed a default claim at Level IV on January 3, 2000, which was given Docket Number 00-CORR-007D. A hearing was held on the default claim by Administrative Law Judge Andrew Maier on February 17, 2000, and at the conclusion of the hearing Grievant withdrew her default claim. This matter was subsequently reassigned to the undersigned, and a Level IV hearing on the merits of the grievance was held on April 18, 2000. Grievant was represented by Elizabeth K. Squires, Esquire, and Corrections was represented Leslie Kiser-Tyree, Esquire. The Level III transcript was not made available to the parties or the undersigned until May 12, 2000, due to a problem Corrections had in getting it transcribed. A review of the transcript revealed that portions of the testimony of Grievant and Charlie Burke were missing. The parties were contacted regarding this problem, and neither party wished to supplement the record. This matter became mature for decision on June 2, 2000, upon receipt of the last of the parties' written arguments.