LOIS VIARS,
      Grievant,

v.                                                       Docket No. 99-HHR-417

WEST VIRGINIA DEPARTMENT OF HEALTH
& HUMAN RESOURCES and WEST VIRGINIA
DIVISION OF PERSONNEL,
      Respondents.

D E C I S I O N


      Grievant, Lois Viars, is employed by the West Virginia Department of Health and Human Resources ("DHHR"). She 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. This grievance was initiated on August 13, 1999, and waived to Level II. A Level II conference was held on August 20, 1999, with a Decision denying the grievance issued on August 27, 1999. A Level III hearing was held on September 13, 1999, followed by a written Decision denying the grievance on September 30, 1999. Grievant appealed to Level IV on October 8, 1999. A hearing was scheduled for December 15, 1999, but the parties agreed this matter could be submitted for a decision based upon the record developed below, supplemented by the parties' proposed findings of fact and conclusions of law.   (See footnote 1)  This case became mature for decision on January 28, 2000, after receipt of the parties' proposed findings of fact and conclusions of law.       The following findings of fact are made from a preponderance of the evidence of record.
Findings of Fact

      1.      Grievant is employed by DHHR in the Bureau of Behavioral Health and Health Facilities at the Mildred Mitchell-Bateman Hospital and is currently classified as a Secretary I.
      2.      Grievant had been employed by the DHHR for approximately eleven years, as of June 30, 1999.
      3.      During 1998, Grievant took an approved, unpaid, family medical leave for approximately two months.
      4.      Grievant was in "no-pay status" from September 15, 1998, to November 15, 1998.      
      5.      Pursuant to the Division of Personnel's ("DOP") Annual Increment Policy, Grievant's increment pay for the 1998 - 1999 fiscal year was prorated. Instead of receiving full increment pay for eleven years of service, i.e. $550 (11 X $50), she received 10/12ths of that amount, $468.25, because she had only worked ten months of the 1998- 1999 fiscal year.
Issues and Arguments

      Grievant argues that only the last $50.00 of her annual increment, or only the eleventh year during which she was off on leave should be prorated, and that she should receive her entire annual increment ($500.00) for her first ten years of employment. She argues the correct calculation would be to receive $500.00 for the first ten years, and the$50.00 for the eleventh year should be prorated to reflect the time she was off. She maintains that DOP's interpretation of the statute is incorrect and does not reflect the wishes of the Legislature. She also argues the calculations are incorrect because the annual increment is a bonus and not an increase in her salary.
      Respondents argue DOP has the authority to establish and interpret the Annual Increment Policy, DOP's interpretation is correct, and the Policy was duly followed.
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 issue of proration of increment pay has been addressed by this Grievance Board on numerous occasions.
      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
. . .


III. POLICY

. . .


. . .

L III, Grt. Ex. 1

      The recent decision of Price v. West Virginia Department of Health and Human Resources and Division of Personnel, Docket No. 99-HHR-238 (Jan. 24, 2000), addressed a similar argument. The administrative law judge in Price, supra, noted another recent decision, Rule v. West Virginia Department of Health and Human Resources and Division of Personnel, Docket No. 99-HHR-130 (Oct. 25, 1999), where the administrative law judge provided a detailed review and discussion of many of the Grievance Board's decisions regarding increment 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; Bush v. W. Va. Dep't of Health and Human Resources and Div. of Personnel, Docket No. 97-HHR-568 (Nov. 13, 1998)). 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 similar to those raised by the grievants in Price and Bush and many of the other above-cited cases. Therefore, her claim that DOP's method of proration is improper must be denied.
      As to DOP's interpretation of the policies regarding increment pay, Grievant contends DOP has incorrectly interpreted W. Va. Code §§ 5-5-1, et seq. and thus, DOP's intrepretation should not be followed.
      This Grievance Board has consistently held that DOP is responsible for the administration of W. Va. Code § 5-5-2. See Price, supra; Rule, supra; Bush, supra; 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." Price, supra. SeeCourtney, 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.'" Price, supra.
      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). 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., supra; 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 Price, supra, and Rule, supra, Grievant has not established 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.
      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 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.       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.
      3.       "Interpretations of statutes by bodies charged with their administration are given great weight unless clearly erroneous." Syl. Pt. 7, in part, Lincoln County Bd. of Educ. v. Adkins, 188 W. Va. 430, 424 S.E.2d 775 (1992); Syl. Pt. 3, Smith v. Bd. of Educ. of Logan County , 176 W. Va. 65, 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).
      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).
      5.      "'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, DocketNo. 93-DOH-011 (June 10, 1993), aff'd, Circuit Court of Kanawha County, Civil Action No. 93-AA-201 (Feb. 7, 1994).
      6.      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 Div. of Personnel, 99-HHR-130 (Oct. 25, 1999); Bush v. W. Va. Dep't of Health and Human Resources and Div. of Personnel, Docket No. 97-HHR-568 (Nov. 13, 1998).
      7.       Grievant's annual increment was correctly calculated based on DOP's Annual Increment Policy. Therefore, Respondents did not violate W. Va. Code § 5-5-2 in calculating Grievant's annual increment for fiscal year 1998-1999.
      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, 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:      February 28, 2000                  ___________________________________
                                           JANIS I. REYNOLDS
                                          Administrative Law Judge


Footnote: 1
      Grievant represented herself, the West Virginia Department of Health and Human Resources ("DHHR") was represented by counsel, B. Allen Campbell, Assistant Attorney General, and the Division of Personnel, through a letter dated January 27, 2000, from Acting Director Joe Smith, adopted the proposed Findings of Fact and Conclusions of Law of DHHR.
Footnote: 2
      The previous annual increment of $36 was raised to $50 by the legislature in 1996.