CINDY PRICE,

      Grievant,

v.                                                      Docket No. 99-HHR-238

WEST VIRGINIA DEPARTMENT OF
HEALTH & HUMAN RESOURCES/
BUREAU FOR CHILD SUPPORT
ENFORCEMENT and WEST VIRGINIA
DIVISION OF PERSONNEL,

      Respondents.

DECISION

      Cindy Price (Grievant) challenges the method by which her annual increment pay was prorated by Respondents. She seeks payment of the full amount of increment pay to which she believes she is entitled, plus interest. This grievance was initiated on August 6, 1998, and was denied by Grievant's immediate supervisor on August 7, 1998. Grievant appealed to level two, where the grievance was again denied on August 13, 1998. Upon appeal to level three, the grievance was held in abeyance, pending the outcome of the level four grievance in Bush v. W. Va. Dep't of Health and Human Resources and Div'n of Personnel, Docket No. 97-HHR-568 (Nov. 13, 1998). A level three hearing was held on April 9, 1999, followed by a written decision, denying the grievance, dated May 4, 1999. Grievant appealed to level four on June 9, 1999. After several continuances granted for good cause shown, the parties agreed on September 13, 1999, that this matter could be submitted for a decision based upon the record developed below, supplemented by proposed findings of fact and conclusions of law. Grievant was represented by Kevin Church of the West Virginia State Employees' Union; the Department of Health andHuman Resources (DHHR) was represented by counsel, B. Allen Campbell; and the Division of Personnel did not appear. The parties' written proposals were submitted by November 19, 1999. This grievance was reassigned to the undersigned administrative law judge for a final decision on December 20, 1999.
      The following findings of fact are made from a preponderance of the evidence of record.

Findings of Fact

      1.      Grievant is employed by DHHR's Bureau of Child Support Enforcement as a Child Advocate Legal Assistant.
      2.      On February 28, 1998, Grievant suffered a heart attack, for which she used her own accrued sick leave from February 28, 1998, through March 31, 1998.
      3.      Grievant exhausted her own leave on March 31, 1998, but continued to be disabled, due to her medical condition. Therefore, she requested and received money from the Division of Personnel's (DOP) Donated Leave Program, under the provisions of which she received pay from March 31, 1998, until her return to work on June 1, 1998.
      4.      DOP's donated leave policy does not allow an employee receiving money under the program to receive tenure credit for the purposes of calculating annual increment pay.
      5.      Grievant had eighteen full years of employment with the State of West Virginia as of June 30, 1998.
      6.      Pursuant to DOP's Annual Increment Policy, Grievant's increment pay for the 1997-1998 fiscal year was prorated. Instead of receiving full increment pay foreighteen years of service, i.e. $900 (18 X $50), she received 10/12ths of that amount, $752.02, because she had only worked ten months of the 1997-1998 fiscal year.
Discussion

      The issue of proration of increment pay has been addressed by this Grievance Board on numerous occasions. In the instant case, Grievant does not contest the fact that the two months when she was on donated leave was not counted for increment pay purposes. Rather, she contends that DOP is without authority to promulgate policies regarding increment pay, and she also contests the manner in which her pay was prorated.       Pursuant to W. Va. Code § 5-5-2 (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. In accordance with W. Va. Code § 5-5-1, DOP developed a policy which covers the payment of annual salary increments. Pursuant to this policy, the total annual increment must be prorated when the employee works less than the entire year. Specifically, the Policy states as follows:
      II. DEFINITIONS
. . .

      B.


      
      III. POLICY
. . .

      


      
      
L III, Resp. Ex. 6 (emphasis in original).

      In the recent decision in Rule v. W. Va. Dep't of Health and Human Resources and Division of Personnel, 99-HHR-130 (Oct. 25, 1999), the administrative law judge provided a detailed review and discussion of many of the Grievance Board's decisions regardingincrement pay since 1996. That discussion will not be repeated here. Nevertheless, the “bottom line” regarding increment pay is that “during the years [an employee] did not work the full year, or was not in pay status, his annual increment must be prorated.” Rule, supra (citing Cavender, supra, and Bush, supra). Additionally, the following portions from Bush, supra, are helpful in understanding the Grievance Board's reasoning regarding the proration issue:


* * *



The same logic applies to the instant case. Grievant's protest to proration is identical tothose raised by the grievant in Bush and many of the other cases cited. Therefore, her claim that DOP's method of proration is improper must be denied.
      As to DOP's authority to promulgate policies regarding increment pay, Grievant contends that W. Va. Code § 29-6-10, which delineates the areas in which DOP may promulgate legislative rules, does not provide authority for a policy regarding increment pay. Likewise, Grievant argues, the provisions of the Code dealing with increment pay itself, Code §§ 5-5-1, et seq., also give no authority to DOP to promulgate such a policy. Therefore, she contends that DOP does not have the authority to enact any policies regarding increment pay, let alone the current policy, which she believes contradicts the increment pay statute.
      This Grievance Board has consistently held that DOP is responsible for the administration of W. Va. Code § 5-5-2. See Rule, supra, Bush, supra, and Cavender, supra. As the agency responsible for providing and administering a fair and consistent compensation system for classified state employees, it is certainly within DOP's purview to implement a policy for the purpose of ensuring that the various state agencies uniformly administer increment pay, which has been held by the West Virginia Supreme Court to be part of an employee's annual salary, i.e. compensation. See Courtney, supra.
      Moreover, DOP's Administrative Rule, a properly promulgated legislative rule which has been debated and approved by the West Virginia legislature, provides in Section 5.9 that the State Personnel Board “may establish uniform procedures which shall be followed by all State Agencies . . . for compensating eligible employees . . . for the annual increment increase.” It is well established that a government agency's determination regardingmatters within its expertise is entitled to substantial weight. Princeton Community Hosp. v. State Health Planning & Dev. Agency, 174 W. Va. 558, 328 S.E.2d 164 (1985). See W. Va. Dep't of Health v. Blankenship, 189 W. Va. 342, 431 S.E.2d 681 (1993); Security Nat'l Bank v. W. Va. Bancorp, 166 W. Va. 775, 277 S.E.2d 613 (1981). 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 v. Lincoln County Bd. of Educ., Docket No. 95-22-494 (June 28, 1996); 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). Accordingly, as stated in Rule, supra, Grievant has not established that DOP's interpretation of its policy, or the increment pay statute, is contrary to the plain meaning of the language, is inherently unreasonable, or is arbitrary and capricious. See Dyer, supra.       Consistent with the foregoing findings and discussion, the following conclusions of law are appropriate.
Conclusions of Law

      1.       Every eligible employee of the State of West Virginia with three or more "years of service" shall receive annual increment pay equal to 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 calculating increment pay for eligible employees. W. Va. Code § 5-5-2.      2.       "Interpretations 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, 424 S.E.2d 775 (W. Va. 1992); Syl. Pt. 3, Smith v. Bd. of Educ. of County of Logan, 341 S.E.2d 685 (W. Va. 1985); Syl. Pt. 4, Security Nat'l Bank and Trust Co. v. First W. Va. Bancorp, Inc., 277 S.E.2d 613 (W. Va. 1981).
      4.      "'Annual salary increase,' referred to in W. Va. Code § 5-5-2, means increment pay is part of the employee's salary." Miller v. W. Va. Div. of Highways, Docket No. 93-DOH-011 (June 10, 1993), aff'd, Circuit Court of Kanawha County, Civil Action No. 93-AA-201 (Feb. 7, 1994).
      5.      Because W. Va. Code § 5-5-2 states the annual increment is an "annual salary increase," one can only receive the annual increment for time actually worked during the fiscal year. Rule v. W. Va. Dep't of Health and Human Resources and Division of Personnel, 99-HHR-130 (Oct. 25, 1999); Bush v. W. Va. Dep't of Health and Human Resources and Div'n of Personnel, Docket No. 97-HHR-568 (Nov. 13, 1998).
      6.       Grievant's annual increment was correctly calculated based on the Division of Personnel's Annual Increment Policy. Therefore, Respondents did not violate W. Va. Code § 5-5-2 in calculating Grievant's annual increment for fiscal year 1997-1998.

      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 grievanceoccurred, and 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.

Date:      January 24, 2000                  ___________________________________
                                          DENISE M. SPATAFORE
                                          Administrative Law Judge


Footnote: 1
      The previous annual increment of $36 was raised to $50 by the legislature in 1996.