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:
It shall be the policy of the Department of Highways to prohibit the
employment or transfer of immediate family members into the same
organizational units . . . where they would be under the direct or indirect
supervision of an individual whose relationship to them would fall within the
immediate family members definition.
In addition, the Department shall take exception to any situation where a
supervisor recommends his/her immediate family members for employment
within the same organizational unit . . . .
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:
No appointing authority shall influence or attempt to influence the
employment or working conditions of his or her immediate family. It is the
responsibility of the appointing authority to administer the employment of
relatives of any agency employee in a consistent and impartial manner.
No employee shall directly supervise a member of his or her immediate
family. More specifically, no employee shall review or audit the work of a
member of his or her immediate family, or take part in discussions
concerning employment, assignment, compensation, discipline or related
matters involving a member of his or her immediate family. In the event that
an individual, through marriage, adoption, etc. is placed in a prohibited
business relationship with a member of his or her immediate family, the
situation shall be resolved within thirty calendar days. Resolution may be
made by transfer, reassignment, resignation, etc. of one of the involved
employees or by other accommodation which protects the interests of the
public.
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
provide relief as is determined fair and equitable in accordance with the
provisions of this article, and take any other action to provide for the
effective resolution of grievances not inconsistent with any rules of the board
or the provisions of this article: Provided, That in all cases the hearing
examiner has the authority to provide appropriate remedies including, but
not limited to, making the employee whole.
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:
Attorney fees are limited to a maximum of $1500 for administrative hearings
and circuit court proceedings. For Supreme Court proceedings, attorney
fees are limited to a maximum of $1000. Employees still have the right to
recover reasonable attorney fees in a mandamus proceeding brought under
Section 9 of the grievance procedure.
W. Va. Code § 29-6A-10 controls this issue and states:
If an employee appeals to a circuit court an adverse decision of a hearing
examiner rendered in a grievance proceeding pursuant to provisions of this
article or is required to defend an appeal and the person substantially
prevails, the adverse party or parties is liable to the employee, upon final
judgment or order, for court costs, and for reasonable attorney's fees, to be
set by the court, for representing the employee in all administrative hearings
and before the circuit court and the supreme court of appeals, and is further
liable to the employee for any court reporter's costs incurred during any
administrative hearings or court proceedings: Provided, That in no event
shall such attorney's fees be awarded in excess of a total of one thousand
five hundred dollars for the administrative hearings and circuit court
proceedings nor an additional one thousand dollars for supreme court
proceedings: Provided, however, That the requirements of this section shall
not be construed to limit the employee's right to recover reasonableattorney's fees in a mandamus proceeding brought under section nine [§
29-6A-9] of this article.
(See footnote 6)
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