SUE RONCAGLIONE,
            Grievant,

v.                                                       Docket No. 99-BEP-498

BUREAU OF EMPLOYMENT PROGRAMS/
FISCAL and ADMINISTRATIVE MANAGEMENT
DIVISION and DIVISION OF PERSONNEL,
            Respondents.

D E C I S I O N

      Grievant, Sue Roncaglione, was an employee of the Bureau of Employment Programs ("BEP"). Her Statement of Grievance reads:

      This grievance was denied at all lower levels. Grievant appealed to Level IV, and a hearing was held on February 24, 2000.   (See footnote 1)  This case became mature for decision at that time, as the parties did not wish to submit proposed findings of fact and conclusions of law.   (See footnote 2) 
Issues and Arguments

      This grievance centers on whether Grievant should receive holiday pay for the May 31, 1999 holiday when her last day of work was Friday, May 28, 1999. Grievant argued she should receive the holiday pay for two reasons. One reason is because she dated herretirement letter as being effective May 31, 1999. Grievant further argued she should be given this pay because, after consultation and discussion with Tom Rardin, BEP's Personnel Administrator, he told her that an employee in this situation would definitely receive holiday pay. She noted Mr. Rardin is in charge of personnel matters for BEP, and she had been directed in the past that he was the only one within the agency who was to interpret personnel rules and regulations. Grievant also disagreed with Division of Personnel's ("DOP") interpretation of the rules at issue in this grievance.   (See footnote 3) 
      Respondents argued Grievant cannot receive the holiday pay because it is against DOP's stated rules, this rule has been consistently enforced, and to give this pay to Grievant would be unfair to the other employees who quit or retired at the same time she did and did not receive this compensation. Additionally, Respondents noted DOP has the ultimate authority to interpret its rules, not BEP.
      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.      Grievant was a long-term employee with BEP with approximately 38 years of service. At the time of her retirement, she had been employed for eleven years as the Supervisor of Accounts Payable in the Payroll Department.      2.      Grievant's work section frequently had questions about the interpretation of various DOP rules as they related to compensation issues. While Grievant was supervisor, it was her responsibility to insure DOP's rules and regulations were being applied consistently.
      3.      Grievant testified she was not aware that the issue of payment for a holiday after the employee had retired had ever been brought up to her during her tenure as supervisor. Grievant noted Mildred Goble was the individual in her section who routinely dealt with these issues.
      4.      Ms. Goble retired on May 28, 1999, and her last day of work or date of separation was the same as Grievant's.
      5.      Shortly before her retirement, Grievant asked Mr. Rardin if an employee who worked the day before the holiday, and then retired would receive pay for the following holiday. Grievant did not inform Mr. Rardin she was asking the question for herself, or that she would be retiring soon.
      6.      Mr. Rardin did not find out Grievant was retiring until May 28, 1999.
      7.      Mr. Rardin believed Grievant was asking a hypothetical question, and stated it looked like the employee could, if the date of separation was May 31, 1999, but the rule was unclear. He called DOP shortly thereafter to ask them about the issue, but does not remember why he never got hold of them before Grievant retired. Grievant did not call DOP for its interpretation of the rule.
      8.      Grievant was aware that DOP was the ultimate authority on its rules, and that DOP's interpretation would take precedent over BEP's interpretation.      9.      Grievant's last day of work was Friday, May 28, 1999. She did not work the weekend, nor did she work the holiday, May 31, 1999. She also did not work the following Tuesday, June 1, 1999.
      10.      Grievant wrote her retirement letter, which was dated May 31, 1999, on May 28, 1999, and gave it to her supervisor on May 28, 1999. It stated in pertinent part:

      11.      She received a subsequent letter from Commissioner William Vieweg thanking her for all her years of dedication and hard work. This letter noted that "[a]s stated in your letter, your retirement will be effective May 31, 1999."   (See footnote 4) 
      12.      The question of whether Grievant should be paid came to the attention of Mark Miller, Grievant's former supervisor, shortly after Grievant retired. Four employees had retired at the same time as Grievant. Sherry Kirk, a new payroll employee, was aware there was an issue about paying the employee for the holiday when an employee did not return to work after the holiday or retired prior to the holiday.
      13.      Ms. Kirk had been directed by Ms. Goble, before she retired, that these four employees, who included Ms. Goble herself, were not to be paid for the May 31, 1999 holiday. Grievant had informed Ms. Kirk that she was entitled to receive payment for that day. Ms. Kirk came to Mr. Miller for direction.      14.      Mr. Miller contacted Mr. Rardin, who informed Mr. Miller that he had discussed the issue previously with Grievant, and Mr. Rardin believed the issue was somewhat unclear. Mr. Rardin directed Mr. Miller to call DOP.
      15.      Mr. Miller called DOP. DOP noted the key information in deciding the issue was the employee's date of separation or last day of work, and since Grievant's date of separation came before the holiday, she was not entitled to payment. After this discussion, Mr. Miller decided the four employees were not entitled to payment for the May 31, 1999 holiday.
Discussion

      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving her 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.
      The West Virginia Division of Personnel Administrative Rules which apply to the resolution of this grievance are:

and


(Emphasis added).

      It is well established that a government agency's determination regarding matters 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). Additionally, where 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). Thus, DOP's interpretation of its policy is entitled to deference by this Grievance Board, unless it is contrary to the plain meaning of the language, is inherently unreasonable, or is arbitrary and capricious. Dyer, supra.
      "Generally, an action is considered arbitrary and capricious if the agency did not rely on criteria intended to be considered, explained or reached the decision in a mannercontrary to the evidence before it, or reached a decision that was so implausible that it cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of Health and Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and capricious actions have been found to be closely related to ones that are unreasonable. State ex rel. Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is recognized as arbitrary and capricious when "it is unreasonable, without consideration, and in disregard of facts and circumstances of the case." Eads, supra (citing Arlington Hosp. v. Schweiker, 547 F. Supp. 670 (E.D. Va. 1982)). While a searching inquiry into the facts is required to determine if an action was arbitrary and capricious, the scope of review is narrow, and an administrative law judge may not simply substitute her judgment for that of the agency. Trimboli, supra. See generally, Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276, 283 (1982).
       Although the first portion of 15.1(d) is stated somewhat confusingly, the last section is very clear, and it is this section which pertains to Grievant's situation: "[n]o employee is entitled to payment for any holiday which occurs prior to the first day of work or after the effective date of separation." Grievant's effective date of separation was her last day of work prior to her voluntary resignation, May 28, 1999. The holiday did not occur until May 31, 1999. In these circumstances, the undersigned administrative law judge must defer to DOP's interpretation of its policy, and Grievant cannot receive compensation for theholiday. Grievant has not demonstrated that such interpretation is clearly wrong or arbitrary and capricious. See Blankenship, supra.
      As for the argument that Grievant should receive the holiday pay because Mr. Rardin told Grievant an employee in this situation would receive this compensation, this argument must also fail. First, Mr. Rardin did not know he was being asked for specific advice about Grievant's particular situation, and that there was disagreement in Grievant's department about how this issue should be handled. He gave what he thought would be the correct answer, but also noted Section 15.1(d) was unclear. While it is understandable Grievant would be upset after she relied upon this advice, and it was incorrect, this does not mean she should or could be paid in violation of policy.
      Additionally, even if Mr. Rardin had promised Grievant she would receive this compensation, he would not be in a position to make this promise as final authority of the interpretation of DOP rules resides with DOP. This promise would be seen as an ultra vires act. "Ultra vires acts of a governmental agent, acting in an official capacity, in violation of a policy or statute, are considered non-binding and cannot be used to force an agency to follow such acts." Franz v. Dep't of Health and Human Resources, Docket No. 99-HHR-228 (Nov. 30, 1998). See Parker v. Summers County Bd. of Educ., 185 W. Va. 313, 406 S.E.2d 744 (1991).
      The above-discussion will be supplemented by the following Conclusions of Law.

Conclusions of Law

      1.      In a non-disciplinary matter, Grievant has the burden of proving her 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.
      2.      "No employee is entitled to payment for any holiday which occurs prior to the first day of work or after the effective date of separation." W. Va. Div. of Personnel Administrative Rule 15.1(d).
      3.      An employee's date of separation is last day of work prior to the "employees separating due to dismissal, voluntary resignation, voluntary retirement, layoff, or sudden death; the date of death of employees who die while on paid or unpaid leave; or the date of notification by employees resigning or retiring due to disability as verified by a physician." W. Va. Div. of Personnel Administrative Rule 3.25.
      4.      A government agency's determination regarding matters 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).
      5.      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.2d164 (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).
      6.      "Generally, an action is considered arbitrary and capricious if the agency did not rely on criteria intended to be considered, explained or reached the decision in a manner contrary to the evidence before it, or reached a decision that was so implausible that it cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of Health and Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and capricious actions have been found to be closely related to ones that are unreasonable. State ex rel. Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996).
      7.      DOP's interpretation of its policy is entitled to deference by this Grievance Board, as its interpretation of its policy is not clearly wrong or arbitrary and capricious. See Blankenship, supra; Dyer, supra.
      8.      "Ultra vires acts of a governmental agent, acting in an official capacity, in violation of a policy or statute, are considered non-binding and cannot be used to force an agency to follow such acts." Franz v. Dep't of Health and Human Resources, Docket No. 99-HHR-228 (Nov. 30, 1998). See Parker v. Summers County Bd. of Educ., 185 W. Va. 313, 406 S.E.2d 744 (1991).
      9.      Grievant has not met her burden of proof and demonstrated she is entitled to holiday pay for May 31, 1999, because her date of separation was May 28, 1999, before the holiday in question occurred.
      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. 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.
                                                                                                  JANIS I. REYNOLDS
                                           ADMINISTRATIVE LAW JUDGE

Dated: April 28, 2000.


Footnote: 1
      During a pre-hearing conference several weeks before the hearing, the parties agreed the grievance could be filed, and the issue of whether Grievant could file a grievance because she was no longer an employee would not be an issue.
Footnote: 2
      Grievant represented herself, the Bureau of Employment Programs ("BEP") was represented by attorney Patricia Shipman, and Division of Personnel was represented by Mr. Joe Smith, the Acting Director.
Footnote: 3
      On April 26, 2000, the undersigned Administrative Law Judge received a letter from Grievant claiming she had won her grievance by default at Level IV. It is noted that there are no provisions for default at Level IV. Worden v. Dep't of Health and Human Resources, Docket No. 98-HHR-282 (Jan. 29, 1999) at n. 1.
Footnote: 4
      It is standard practice for the Commissioner to use the date cited by the employee in his letter.