CHAPTER 4. PUBLIC OFFICERS
Read Article III, § 2; Article IV, §§ 6-10; and Article VII, §§ 8-10.
GRAF v. FRAME, 177 W.Va. 282, 352 S.E.2d 31 (1986).
McHUGH, Justice:
In this mandamus proceeding the petitioners, current (and two former) physicians faculty members at the West Virginia University Medical Center, request that this Court order the respondents to perform what the petitioners allege are the nondiscretionary duties of the respondents as public officers, specifically, (1) for respondent Frame, an attorney and a member of the respondent West Virginia Board of Regents, to refrain from acting as an attorney for persons with alleged claims against faculty members and employees of West Virginia University and of other institutions of higher learning in this State when such claims are based upon functions performed by such faculty members/employees in their course of employment with any such institution supervised by the respondent West Virginia Board of Regents and (2) for respondent West Virginia Board of Regents to prohibit respondent Frame and any other of the Board's members from representing litigants against the Board or institutions or employees thereof which it supervises. . . .
Finding merit to the argument for mandamus relief with respect to respondent Frame, we grant a writ of mandamus as moulded.
I Clark Frame, an attorney and a member of the West Virginia Board of Regents, in his capacity
as an attorney brought a medical malpractice action for a Ms. Riggi against Drs. Blessing and Elyanderani, formerly physicians at the West Virginia University (WVU) Medical Center hospital, where the alleged medical malpractice occurred, and formerly faculty members at the WVU School of Medicine. This civil action is currently pending, with Frame and one of his law firm's associates as counsel of record for the plaintiff. Neither West Virginia University nor the West Virginia Board of Regents is named as a defendant.
In a second case, one of Frame's associates brought a medical malpractice action for a Mr. and Mrs. Roy against Drs. Graf and Davis. Dr. Graf was then, and is now, a physician at the WVU Medical Center hospital, where the alleged medical malpractice occurred, and a faculty member of the WVU School of Medicine. This civil action was later dismissed with prejudice by agreed order. Neither West Virginia University nor the West Virginia Board of Regents was named as a defendant. . . .
In this mandamus proceeding the petitioners assert that respondent Frame, by placing himself in the situations involving actual or apparent conflict of interests between personal gain and public duties, has violated and is violating W.Va. Const. art. III, §§ 2, 3, 10 and 17; art. VI, § 45; art. XII, § 12; and DR-1-102(A)(5), DR-5- 105(A), DR-8-101(A)(2) and DR-9-101(A), (B) and (C) of the Code of Professional Responsibility (1983). We conclude that respondent Frame, unwittingly, has violated and is violating W.Va. Const. art. III, § 2. It is, therefore, not necessary to discuss the other state constitutional provisions or, with one exception (DR 9-101), the disciplinary rules listed above.
II B
The Constitution of West Virginia is the source of the nondiscretionary duty owed by respondent Frame. Indeed, W.Va.Const. art. III, § 20 urges the people to preserve free government and the blessings of liberty by, inter alia, "a frequent recurrence to fundamental principles."
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One of these "fundamental principles" is declared in W.Va. Const. art. III, § 2[.] This constitutional provision, part of this State's "Bill of Rights," is obviously derived from and tracks verbatim the language of Section 2 of the Virginia "Bill of Rights" composed by George Mason in the year 1776. See The Constitution Of Virginia: Report of the Commission on Constitutional Revision 87-88 (Michie Co. 1969). The respondents clearly are "magistrates" under this provision. In Mason County Board of Education v. State Supt. of Schools, 165 W.Va. 732, 274 S.E.2d 435 (1980), this Court stated that W.Va. Const. art. III, § 2 applied to "all officers and employees of the body politic in this State." . . . See generally Ralston v. Town of Weston, 46 W.Va. 544, 548-49, 33 S.E. 326, 328 (1899) ("public servants" equated with "magistrates"). It is clear that respondent Frame in his capacity as a member of the respondent Board is a "public officer." There are several indicia of being a "public officer":
'Among the criteria to be considered in determining whether a position is an office or a mere employment are whether the position was created by law; whether the position was designated [as] an office; whether the qualifications of the appointee have been prescribed; whether the duties, tenure, salary, bond and oath have been prescribed or required; and whether the one occupying the position has been constituted a representative of the sovereign.' Syl. pt. 5, State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970).
Syl., Christopher v. City of Fairmont, --- W.Va. ---, 280 S.E.2d 284 (1981). See also Mullins v. Kiser, --- W.Va. ---, 331 S.E.2d 494 (1985). Applying these criteria we see that respondent Frame's position as a member of respondent Board of Regents was a position created by law, specifically, W.Va.Code, 18-26-4 [1983]; the position is implicitly designated as an office in W.Va.Code, 18-26-4 [1983] by that section's language prohibiting a member from "holding any other public office" (emphasis added); the qualifications of the members of the Board are prescribed by such section; the same section of the statute prescribes the tenure of a member and requires each member to take the oath of office prescribed by W.Va. Const. art. IV, § 5, while W.Va.Code, 18-26-6 [1983] and W.Va.Code, 18-26-8 [1981], respectively, prescribe the compensation and duties of the members; finally, W.Va.Code, 18-26-1 [1969] constitutes a designation of the Board as a general manager of the State's higher educational institutions and affairs, a position which is a representative of the sovereign, the people, who are vitally interested in the fostering of higher education in this State. See W.Va. Const. art. XII, § 12[.]
C. According to W.Va. Const. art. III, § 2 "magistrates" are "trustees and servants" of the people of
this State and are "at all times amenable to them." Being "trustees and servants," public officials such as respondent Frame are fiduciaries of the people. Referring to article 6 of the "Declaration of Rights" contained in the Constitution of Maryland, which states in pertinent part "[t]hat all persons invested with the Legislative or Executive powers of Government are the Trustees of the Public, and, as such, accountable for their conduct[,]" the court in Kerpelman v. Board of Public Works, 261 Md. 436, 276 A.2d 56 (1971), observed: "Article 6 is hortatory in nature ... and sets forth the well-established doctrine that the duties of public officials are fiduciary in character and are to be exercised as a public trust." . . .
As a fiduciary of the people a public officer or public employee owes an undivided duty of loyalty to the public whom he serves and is not permitted to place himself in a situation that will subject him to conflicting duties or expose him to the temptation of acting in any manner other than in the best interest of the public. . . . This Court has stated the proposition in this manner: "A public officer is in the position of a fiduciary and he is under an obligation to serve the public with highest fidelity and undivided loyalty. The public officer is bound to act primarily for the benefit of the public...." State ex rel. Preissler v. Dostert, 163 W.Va. 719, 730, 260 S.E.2d 279, 286 (1979). Similarly, "[t]he duty of a public officer to fulfill the obligations of his office should take precedence over all other matters." Kemp v. Boyd, --- W.Va. ---, ---, 275 S.E.2d 297, 302 (1981). A person's status as a public officer forbids him from placing himself in a situation where his private interest conflicts with
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his public duty. His good faith is of no moment because it is the policy of the law to keep him so far from temptation as to insure the exercise of unselfish public interest. This policy is not limited to a single category of public officer but applies to all public officials. . . .
Quoting State ex rel. Preissler v. Dostert, 163 W.Va. 719, 730, 260 S.E.2d 279, 286 (1979), this Court in Nelson v. West Virginia Public Employees Insurance Board, --- W.Va. ---, 300 S.E.2d 86 (1982), remarked:
'One who accepts a public office does so cum onere, that is, he assumes the burdens and [the] obligations of the office as well as its benefits, subjects himself to all constitutional and legislative provisions relating to the office, and undertakes to perform all [the] duties imposed on its occupant; and while he remains in such office he must perform all such duties.'
[One] of the obligations of the office held by respondent Frame which is imposed by W.Va. Const. art. III, § 2 is that a public trustee is not to place himself in a situation where his private interest conflicts with his public duty:
All public officers, within whatever branch and at whatever level of our government, and whatever be their private vocations, are trustees of the people, and do accordingly labor under every disability and prohibition imposed by law upon trustees relative to the making of personal financial gain from the discharge of their trusts. . . .
Georgia Department of Human Resources v. Sistrunk, 249 Ga. 543, 547, 291 S.E.2d 542, 528 (1982). . . .
A public officer must not place himself in a situation of temptation to serve his own purposes, to the prejudice of those for whom the law authorizes him to act. [A] public officer may not lawfully act as the agent of one person where the private agency would come in conflict with his official duties. . . . A contract entered into by a public officer in his individual capacity, the effect of which is to create a personal interest which may conflict with the officer's public duty, is contrary to public policy. Such a contract is invalid even though there may have been no actual loss or detriment to the public nor fraudulent intent in entering into the contract. . . .
Respondent Frame has violated these principles, although his good faith appears to be beyond question. The respondent Board of Regents, of which he is a member, is charged with the responsibility of "determin[ing], control[ling], supervis[ing] and manag[ing] the financial, business and educational policies and affairs of the state colleges and universities[,]" W.Va.Code, 18-26- 8(a)(1) [1981], including West Virginia University, W.Va.Code, 18-26-2(d) [1982]. In addition, under W.Va.Code, 18-26-8c [1979], the Board, by a committee thereof or a hearing examiner appointed thereby, is authorized to hear and decide appeals of probationary faculty members who have been denied tenure by their institutions. For respondent Frame, or an associate or partner in his law firm, to represent clients in his practice of law against employees of institutions supervised by the public body of which he is a member is tantamount to his bringing lawsuits against the public body on which he serves and is, in any event, prejudicial to the interests of those for whom the law authorizes him, as a member of the respondent Board, to act, specifically, state institutions of higher education. Respondent Frame's private agency (representation of clients) conflicts or would conflict with his public duties (to oversee higher education in this State, including ruling on appeals by probationary faculty members who have been denied tenure and whom he has sued on behalf of clients).10
10Query: what would be the position of an attorney member of the Board of Regents, for example, on whether policy limits should be reduced on state-purchased liability insurance coverage for West Virginia University professors/physicians? See W.Va.Code, 29-12-6(a) [1957]; W.Va.Code, 18-11C-4(a) [1984]. Would he represent his own and his private clients' pocketbooks or the public purse? The clients would not be interested in such a reduction but the citizens of this State may be. "Whenever a person represents another against his present employer, the possibility exists that he may violate the duty of loyalty that he owes to each." Bachman v. Pertschuk, 437 F.Supp. 973, 975 (D.D.C.1977). [Repositioned footnote.]
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Based upon all of the above, we hold that W.Va. Const. art. III, § 2 imposes a duty upon a public officer who is an attorney to refrain from representing persons who allegedly have claims against the public agency of which he is a member or against those agencies or employees thereof subject to the supervision of the public agency of which he is a member.
. . . For the foregoing reasons we grant the writ of mandamus as moulded.
NEELY, Justice, dissenting:
The majority opinion imagines that lawyers must crawl into a cocoon whenever they accept a pro bono public office. In erecting this vision of public service, the majority ignores the institutional realities of our state. The West Virginia University system does not need a full-time board of regents. Accordingly, the members of the board of regents are employed on an unpaid, part-time basis. An unpaid citizen board allows the state to draw upon the talents of our leaders in medicine, business, education and law. Obviously, however, these high quality volunteers must be allowed to earn a living. ...
Because I believe that any connection between Attorney Frame's duties as a member of the Board of Regents and his duties as an attorney for Mr. and Mrs. Roy is completely tenuous, I cannot see how he has violated D.R. 9-101(B) or any other disciplinary rule or ethical consideration of the Code of Professional Responsibility. Finally, I note that if we erect conflict of interest rules so broad, so overreaching, and so perverse, we risk discouraging men of considerable talents from assuming part-time public offices. . . .
If carried to its logical conclusion, the majority's opinion today is likely to lead us one more step down the road to mediocrity. Are, for example, lawyer members of the legislature prohibited from bringing federal civil rights cases against public officials? Are lawyer members of county commissions prohibited from representing litigants in will contests simply because wills are initially probated before county clerks? It is already difficult enough to get trained lawyers to serve in a host of unpaid, community service positions without designing rules that actually punish lawyers for such voluntary service. Substantial conflicts of interest must, of course, be avoided, but it is not in society's interest to create conflicts--as in this case--where none actually exist.
I am authorized to say that Justice BROTHERTON joins me in this dissent.
McGRAW, Justice, concurring:
I concur fully in Justice McHugh's persuasive majority opinion, and write separately only to respond to the points raised in the dissenting opinion.
. . . Much of the dissent's effort is aimed at showing that the respondent has not violated Disciplinary Rule 9-101 (B). The Disciplinary Rules, however, do not provide the proper standard by which to measure the respondent's activities. "The Disciplinary Rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action," West Virginia Code of Professional Responsibility, Preliminary Statement. The majority has properly noted that the respondent, because he is both a lawyer and a public officer, is held to a high standard of conduct. The respondent is a fiduciary of the people and this Court must impose standards on his conduct which will preserve and promote public confidence in the integrity and impartiality of both our public agencies and our system of justice.
NOTES ON APPOINTMENT AND REMOVAL OF OFFICERS
1. Bridges v. Shallcross, 6 W.Va. 562 (1873). In one of its earliest -- and most long-winded -- opinions reviewing the constitutionality of legislation, the Supreme Court of Appeals upheld the legislature's power under Article IV, § 8 (among other provisions) to create the position of
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Superintendent at the state prison in Moundsville and to delegate to the Board of Public Works (i.e., the governor and the other executive officers) the authority to make the appointment. The Court rejected the arguments of the preceding superintendent (who refused to vacate the office) that the relevant statute unconstitutionally delegated the appointment and held that the language in Art. IV, § 8 authorizing the legislature to provide for the "manner" of appointing officers conferred on it the power to designate the agent or person who makes the appointment as well as the formality with which it should be done.
2. Moore v Strickling, 46 W.Va. 515, 33 S.E. 274 (1899). The Court affirmed a county prosecutor's removal from office under Article IV, § 6 for "grossly immoral conduct." According to the lower court's finding of facts, the prosecutor "did on divers occasions visit a certain house of ill fame in the town of Sistersville, county of Tyler, in the state of West Virginia, then there kept by one Nellie White; that on several occasions during the year 1897 he remained in the said house of ill fame all night, drinking excessively, and conducting himself in a grossly immoral manner, with a number of lewd men and women living and associating together in the said house."
Regarding "what standard of morality should govern," the Court expounded: "This moral law is the eternal and indestructible sense of justice and of right written by God
on the living tablets of the human heart and revealed in his Holy Word." . . . [The Ten] Commandments, which, like a collection of diamonds, bear testimony to their own intrinsic worth, in themselves appeal to us as coming from a superhuman or divine source, and no conscientious or reasonable man has yet been able to find a flaw in them. Absolutely flawless, negative in terms, but positive in meaning, they easily stand at the head of our whole moral system, and no nation or people can long continue a happy existence in open violation of them. To them, however, there are two widely different interpretations, both claiming to be moral; that is, the just and true rule for the conduct of man, to secure him the greatest happiness in harmony with the conditions of his existence. The first is, though second in time, what is presented as truly the divine interpretation. It is given to man by Christ, who represents that he came, not to destroy the law, but to fulfill and by precept and example to illustrate and make plain its true meaning and force according to the divine will. It is positive in its nature and is founded on the broad fundamental principle that no man belongs to himself, or has the right to do as he pleases with himself, but that he holds his body, mind, soul, and property of every description, by divine grant, in trust for the benefit of his fellow men. . . . It makes the laws of morality concur fully with the laws of religion. According to it, he who serves man best worships God best, and he who worships God best serves man best. All other religion it denounces as pure hypocrisy. [Etc.]
Applying that code to the Tyler County prosecutor's offense, the Court concluded: The morality of our laws is the morality of the Mosaic interpretation of the Ten Commandments, modified only as to the degree of kind of punishment inflicted. In some cases the punishment is less, and in some much severer, yet the underlying morality is the same. With us the punishment of adultery is slight; with Moses it was death. With him punishment for offenses against property was restitution from one to five times the amount; with us it is usually felony where the amount involved exceeds twenty dollars. We seem to have more sympathy for the adulterer and libertine than the thief, although the crime of the former against society is much the further reaching and more harmful. The people, when free from the baneful influence of political prejudice, exhibit their moral sense in a higher degree than is expressed in their laws; for they justify the avenging of wrong by a father, husband, brother, son, or the victim herself upon the life of a wrongdoer, and they seldom will clothe a known libertine with office, notwithstanding great ability and mental fitness therefor. With the people a known adulterer is an enemy of society, who forfeits his life if caught in the act by one who suffers by his lawlessness; and the adulteress becomes an outcast, shunned and despised, as though she wore on her breast the scarlet letter of her shame -- a punishment far more terrible than confinement in prison. [Etc.]
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McDONALD v. GUTHRIE, 43 W.VA. 595, 27 S.E. 844 (1897).
BRANNON, J.
McDonald being a commissioner of the county court of Kanawha County, a proceeding was instituted in the circuit court of that county by a number of its citizens to remove him from office, and he asked of this court a writ of prohibition to restrain that court from going on with the case. The theory on which his case here is put is that chapter 48, Acts 1897, allowing a proceeding in the circuit court for his removal, is no law, because repugnant to section 4, art. 9 of the state constitution[.] . . . McDonald’s counsel would maintain that he must first be indicted for the wrongs imputed to him, and for which his removal is sought by mere petition in the circuit court, and not until conviction can he be removed. If this is so, what office does section 6, art. 4 of the constitution perform? . . . It is very broad — “all officers elected or appointed under this constitution.” But counsel say there is a limitation of its scope in the words, “unless in cases herein otherwise provided for,” and they further say that section 4, art. 9, does otherwise provide as to county officers in saying they are subject to indictment, and, if convicted, their office shall be vacant. If this were so, then section 6, art. 4, has no application to any county officer at all, because section 4, art. 9, covers all county officers and plainly makes mere conviction ipso facto operate a removal, without any other proceeding, and hence there is no call as to them for the proceeding for removal under the legislation authorized by section 6, art.4. It would have no reference to any county officer, though its broad language applies it to “all officers elected or appointed under the constitution.” I have no doubt that if, upon indictment for the offenses specified in section 4, art. 9, the party be convicted, the judgment would itself work his removal from office, without any other process to reinvestigate the facts; for, those facts having been once proven before a jury beyond reasonable doubt — the highest test which the accused could demand — why reinvestigate in another proceeding? If the party happens to be so convicted, that alone devests him of office as an unfit incumbent. He may refuse to yield, and proceedings for actual amotion become necessary; but that would be a proceeding by mandamus or quo warranto, wherein the record of conviction would be the only evidence required to dispossess him of actual possession, and it would not be a proceeding to investigate the original charge. The words “become vacant” show this. But indictment for the offenses specified is not the only mode of removal. There may be no indictment, and yet the party may be guilty of those offenses; and there ought to be some process accessible to the county court or citizen having for its direct object such removal, and section 6 art.4, says that it shall be as provided by general law, and such is the act of 1897. If the construction that, before removal, a county officer must be indicted and convicted, be correct, what would be done with one guilty of gross immorality? Section 4, art. 9, contemplates indictment only for malfeasance, misfeasance, or neglect of official duty, and gross immorality would not be included in those terms and there could be no removal for it, though section 6, art. 4, says it is a ground of removal. Under the construction contended for there would be no use for section 6, art. 4, except as to constables and road surveyors. Then, what do the words, “unless in cases herein otherwise provided for,” in section 6, art. 4 mean? I answer they do not at all refer to section 6, art. 9, except as to persons convicted, but to other provisions of the constitution, providing other and specific processes of removal. For instance, the provision in section 17, art. 8, that judges may be removed when, from age, disease, mental or bodily infirmity, or intemperance, incapable of discharging their duties, is an exception. Section 9, art. 4, is an exception, as it provides for impeachment and removal of state officers by impeachment by the house of delegates and trial by the senate. This is the only mode for their removal. This would include all judges, as they are state officers, though they may be removed for causes not mentioned in section 9, art. 4, but mentioned in section 17, art. 8, by the legislature. These are special provisions as to the cause and process of removal of particular officers, rendering prudent the said exception to the wide language of section
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6, art. 4. So the case of conviction of malfeasance, misfeasance, or neglect of duty under section 6, art. 9, would be an exception, because it itself declares the removal, dispensing with any steps to remove under legislation contemplated by section 6, art. 4. It was not designed to declare as an exception that all officers must be indicted and convicted to effect their removal. It would be a strange thing that the constitution would give the legislature power to provide a process or mode of removal for all officers under it for certain causes, and turn right around, and itself provide that process by indictment, rendering the power given the legislature nugatory. It would render section 6, art. 4, practically useless. We must read both sections together, and give each an office, and not let one devour the other. Section 6, art. 4, means that, except to instances otherwise provided for all officers, no matter as to grade or character, may be removed, for causes it mentions, in such mode as the legislature shall provide by general law. Section 4, art. 9, has for its object to declare that all county officers shall be indictable for malfeasance, misfeasance, or neglect of official duty, and enjoins upon the legislature to so provide, and fix the punishment. That is its main purpose, as the subject of removal is elsewhere provided for. But it adds itself, in case of conviction, the additional penalty of loss of office as a legal consequence of judgment of guilty on the indictments. Section 9, art. 4, carefully provides for an indictment of state officers. Each section answers a separate purpose. The intent that county officers shall be removed as the legislature may provide is still further manifested by sections 26, 27, art. 8, saying that clerks of county courts and justices shall be removed as shall be prescribed by law, in harmony with section 6, art. 4. It cannot be claimed, in view of this special provision as to them, that they must be indicted. Why not they as well as other officers?
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WEST VIRGINIA CODE CHAPTER 6, ARTICLE 6 §§ 6-6-1 to 6-6-9
§ 6-6-1. Definitions.
(a) The term “official misconduct”, as used in this article, means conviction of a felony during the officer’s present term of office or any willful unlawful behavior by a public officer in the course of his or her performance of the duties of the public office.
(b) The term “neglect of duty”, as used in this article, means the knowing refusal or willful failure of a public officer to perform an essential act or duty of the office required by law.
(c) The term “incompetence”, as used in this article, may include the following acts or adjudications committed or arising during the challenged officer’s term of office: The waste or misappropriation of public funds by any officer when the officer knew, or should have known, that such use of funds was inappropriate or inconsistent with the lawful duties of the office; conviction of a misdemeanor involving dishonesty or gross immorality, having been the subject of a determination of incapacity, as defined and governed by section seven, article thirty, chapter sixteen of this code; or other conduct affecting the officer’s ability to perform the essential official duties of his or her office including but not limited to habitual drunkenness or addiction to the use of narcotic drugs.
(d) The term “qualified petitioner”, as used in this article, means a person who was registered to vote in the election in which the officer was chosen which next preceded the filing of the petition.
§ 6-6-2. Retirement of incapacitated justices, judges and magistrates; expulsion of members
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of Legislature.
Any justice, judge, or magistrate may be retired from office because of advancing years and attendant physical or mental incapacity, in the manner prescribed in section eight of article eight of the constitution of this state, and by rules prescribed, adopted, promulgated and amended pursuant thereto.
The Senate or House of Delegates may expel a member of the body in the manner prescribed in section twenty-five of article six of the constitution.
§ 6-6-3. Impeachment.
Any officer of the state or any judge may be impeached and removed from office for maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor, in the manner prescribed in section 9 of article IV of the constitution of this state.
§ 6-6-4. Removal by governor of appointee.
Any person who has been, or may hereafter be appointed by the governor to any office or position of trust under the laws of this state, whether his tenure of office is fixed by law or not, may be removed by the governor at his will and pleasure. In removing such officer, appointee, or employee, it shall not be necessary for the governor to assign any cause for such removal.
§ 6-6-5. Removal by governor of state elective officer -- Grounds.
Any state officer holding any elective office (except the governor, any judge, or a member of the Legislature of this state) may be removed from office, by the governor, in the manner provided in the following section: (a) When disqualified from holding the office under any provision of the constitution of this state, or any law now in force, or which may hereafter be enacted, whether such disqualification arose before or after his induction into office; (b) for official misconduct, malfeasance in office, incompetence, neglect of duty, or gross immorality.
§ 6-6-6. Removal by governor of state elective officer -- Procedure; appeal.
The charges on which the removal of any officer mentioned in the preceding section is sought shall be reduced to writing and signed by a citizen or citizens of this state, and verified by the affidavit of one or more of the signers; or, in case the removal is sought of an officer entrusted by law with the collection, custody and expenditure of public moneys, because of any misapplication, misappropriation, or embezzlement of such moneys, the charges may be signed and verified as aforesaid, or be signed by the chief inspector and supervisor of public offices of the state. If, on examination of the charges by the governor, it shall appear that the officer should be removed, if the charges be true, he shall cause a summons thereupon to be issued containing a copy of the charges, requiring the officer named therein to appear and answer the same on the day and at a place named therein, and cause the same to be served upon such officer at least twenty days before the return day thereof, which summons may be served in the same manner as a summons commencing a civil suit. On the return day of the summons, at the place therein named, the governor shall proceed to hear proof of the charges made, and may adjourn the hearing from time to time and from place to place.
In all such hearings before the governor, the evidence of witnesses and the production of documentary evidence may be required at any designated place of hearing by the governor, at his own instance or at the instance of such officer against whom charges may have been brought as aforesaid; and in case of disobedience to a subpoena or other process of the governor, the governor,
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or such officer, against whom charges may have been brought as aforesaid, may invoke the aid of any circuit court in requiring the evidence and testimony of witnesses and the production of papers, books and documents, and such court, in case of a refusal to obey the subpoena issued to any person, shall issue an order requiring such person to appear before the governor and produce all books and papers, if deemed proper, and give evidence touching the matter in question. Any failure to obey such order of the court may be punished by such court as a contempt thereof. A claim that any such testimony or evidence may tend to incriminate the person giving the same shall not excuse such witness from testifying, but such witness shall never be prosecuted or suffer any penalty or forfeiture for any offense concerning which he is compelled to furnish information or testify. A written record shall be kept of all testimony and other proceedings before the governor.
At the close of the hearing, if the charges are sustained by satisfactory proof, the governor shall remove such officer from the discharge of the duties of his office, and place the records, papers and property pertaining to the office in the possession of some other officer for safekeeping. The order of removal shall become final at the expiration of thirty days from the date thereof, unless appealed from, as hereinafter provided. In the event an appeal is taken from the order of removal, it shall not become final until decided by the supreme court of appeals.
The vacancy in the office shall not be filled until the order of removal becomes final. The governor shall designate some person as deputy of the officer removed, who, in the name of his principal, shall exercise the duties of the office from the date of the order of removal until the suspension thereof, if suspended, and if the order be not suspended, until the same shall be affirmed or vacated; or, if no appeal be taken, until the order becomes final.
Any such officer against whom charges may have been brought as aforesaid, feeling aggrieved by his removal from office by the governor, may present his petition in writing to the supreme court of appeals, or to a judge thereof in vacation, within thirty days after such removal from office by the governor, praying for the suspension, setting aside or vacating of such order of removal. The court, or the judge, shall fix a time for the hearing on the application, but such hearing shall not be held sooner than five days, unless by agreement of the parties, after the presentation of the petition. Notice of the time and place of such hearing shall be forthwith given to the governor, or, in case of his absence from the state or from his office, such notice may be given to him by leaving, or causing to be left, a copy thereof at his office in the state capitol. If the court, or the judge, after such hearing, be of the opinion that a suspending order should issue, the court in its, or the judge in his, discretion, may suspend such removal, and may require bond upon such conditions and in such penalty, and impose such terms and conditions upon the petitioner, as are just and reasonable; and the court, or the judge, shall fix a time for the final hearing on the application. The hearing of the matter shall take precedence over all other matters before the court, except contested elections of secretary of state, auditor, treasurer, attorney general, state superintendent of free schools, commissioner of agriculture, or of a judge of any court. For such final hearing, and before the day fixed therefor, the governor shall file with the clerk of the supreme court of appeals all papers, documents, testimony, evidence and records, or certified copies thereof, introduced or offered at the hearing resulting in such removal; and shall also file with said clerk a written statement of the cause, and his reasons for making such removal. After argument by counsel, the court shall decide the matter in controversy, both as to the law and evidence, as may seem to it to be just and right, and may affirm the order of removal, or may permanently suspend, set aside and vacate such removal and restore such officer to his office; and in case such removal be not suspended, set aside or vacated by the supreme court of appeals, the governor shall fill the vacancy caused by the removal of such officer.
The supreme court shall consider and decide the appeal upon the original papers and documents, without requiring the same to be printed, and shall enforce its findings by proper writ.
In any case in which the charges are signed and filed by the chief inspector and supervisor of public offices, the proceedings under this section shall be conducted and prosecuted by the attorney general of the state.
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§ 6-6-7. Procedure for removal of county, school district and municipal officers having fixed terms; appeal; grounds; cost.
(a) Any person holding any county, school district or municipal office, including the office of a member of a board of education and the office of magistrate, the term or tenure of which office is fixed by law, whether the office be elective or appointive, except judges of the circuit courts, may be removed from such office in the manner provided in this section for official misconduct, neglect of duty, incompetence or for any of the causes or on any of the grounds provided by any other statute.
(b) Charges may be proffered: (1) In the case of any county officer, member of a board of education or magistrate: (A) By a duly enacted resolution of the county commission which sets forth therein the name and
office of the challenged officer, the alleged wrongful acts, the dates the alleged acts occurred and the grounds for removal as provided in this article;
(B) By the prosecuting attorney of the county; or (C) By petition of a number of qualified petitioners, which number shall be: (i) In a county with a population in excess of fifty thousand; the lesser of two thousand or ten
percent of the number of registered voters who participated in the particular election in which the challenged officer was chosen which next preceded the filing of the petition;
(ii) In a county with a population in excess of ten thousand but not in excess of fifty thousand, the lesser of five hundred or ten percent of the number of registered voters who participated in the particular election in which the challenged officer was chosen which next preceded the filing of the petition; and
(iii) In a county with a population not in excess of ten thousand, the lesser of one hundred or ten percent of the number of registered voters who participated in the particular election in which the challenged officer was chosen which next preceded the filing of the petition.
Such petition shall set forth therein the name and office of the challenged officer, the alleged wrongful acts and the grounds for removal.
(2) In the case of any municipal officer: (A) By a duly enacted resolution of the governing body of the municipality which sets forth
therein the name and office of the challenged officer, the alleged wrongful acts, the dates the alleged acts occurred and the grounds for removal as provided in this article;
(B) By the prosecuting attorney of the county wherein such municipality, or the greater portion thereof, is located; or
(C) By petition of a number of qualified petitioners, which number shall be: (i) In a Class I city, the lesser of two thousand or ten percent of the number of registered voters
who participated in the particular election in which the challenged officer was chosen which next preceded the filing of the petition;
(ii) In a Class II city, the lesser of five hundred or ten percent of the number of registered voters who participated in the particular election in which the challenged officer was chosen which next preceded the filing of the petition;
(iii) In a Class III city, the lesser of one hundred or ten percent of the number of registered voters who participated in the particular election in which the challenged officer was chosen which next preceded the filing of the petition; and
(iv) In a Class IV town or village, the lesser of fifty or ten percent of the number of registered voters who participated in the particular election in which the challenged officer was chosen which next preceded the filing of the petition.
Such petition shall set forth therein the name and office of the challenged officer, the alleged wrongful acts and the grounds for removal.
(3) By the chief inspector and supervisor of public offices of the state where the person sought to be removed is entrusted by law with the collection, custody and expenditure of public moneys
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because of any intentional or unlawful misapplication, misappropriation or embezzlement of such moneys.
(c) When removal is proffered by a duly enacted resolution of a county commission or municipal governing body, a certified copy of the resolution shall be served by the clerk of the commission or municipal governing body upon the circuit court in whose jurisdiction the officer serves within five business days of adoption of the resolution. The proffering county commission or municipal governing body shall be responsible for the prosecution of the removal resolution.
(d) When removal is proffered by the prosecuting attorney, the charges shall be reduced to writing and the charges shall be served upon the circuit court in whose jurisdiction the officer serves, and the prosecuting attorney shall be responsible for the prosecution of the removal action.
(e) When removal is proffered by petition, the charges shall be reduced to writing and each page on which signatures are affixed shall include the name and office of the challenged officer, the charges or grounds for removal, which may be achieved by attachment to each signature page, and an informed acknowledgement of an agreement with the charges. At least one of the persons bringing the petition shall serve the original petition upon the circuit court in whose jurisdiction the officer serves, and shall be responsible for the prosecution of the removal action.
(f) Any resolution or petition submitted pursuant to this section shall be received and entered of record by the court, or the judge thereof in vacation, and a summons shall thereupon be issued by the clerk of such court, together with a copy of the resolution or petition, requiring the officer or person named therein, or legal counsel therefor, to appear before the court for a preliminary hearing, at the courthouse of the county where such officer resides, for the purpose of a judicial determination as to the validity of the resolution or petition, the clerk having ascertained whether such signatures are the signatures of eligible residents, and to hear any related objections or motions that may be presented. The summons shall be served in the manner by which a summons commencing a civil suit may be served within five business days of the receipt of the resolution or petition by the court.
(g) The court, or judge thereof in vacation, or in the case of any multi-judge circuit, the chief judge thereof, shall have authority to evaluate any resolution or petition for any procedural defect, and to consider all the allegations made in the resolution or petition in light of the applicable case law and the required strict construction of the grounds asserted, and conclude whether or not the allegations asserted would be sufficient, if proven by clear and convincing evidence, to warrant the removal of the officer from office. In the case of a petition, the court may require that the clerk responsible for the maintenance of voting records for the governing body for whom the officer serves provide an affidavit verifying the number of qualified petitioner signatures and the applicable total number of registered voters.
If the court finds, after consideration of any motions or objections, or in the court’s discretion provided for herein, that the resolution or petition is defective or the allegations stated therein do not meet the standards for removal set forth herein, the resolution or petition shall be dismissed by the court. If the court finds that the resolution or petition is sufficient under the standards for removal set forth herein to proceed to a hearing before a three-judge court, the court shall forward a copy of the resolution or petition to the Supreme Court of Appeals.
Upon receipt of said resolution or petition, the chief justice of the Supreme Court of Appeals shall, not fewer than twenty days from the date of the receipt of the resolution or petition, designate and appoint three circuit judges within the state, not more than one of whom shall be from the same circuit in which the resolution or petition was filed and, in the order of such appointment, shall require that the three-judge court designate the date, time and place for the hearing of the resolution or petition forthwith.
Such three-judge court shall, without a jury, hear the charges, any motions filed by either party and all evidence offered in support thereof or in opposition thereto, and upon satisfactory proof of the charges by clear and convincing evidence, shall remove any such officer from office and place the records, papers and property of his office in the possession of some other officer or person for
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safekeeping or in the possession of the person appointed as hereinafter provided to fill the office temporarily. Any final order either removing or refusing to remove any such person from office shall contain such findings of fact and conclusions of law as the three-judge court shall deem sufficient to support its decision of all issues presented to it in the matter.
(h) An appeal from an order of such three-judge court removing or refusing to remove any person from office pursuant to this section may be taken to the Supreme Court of Appeals within thirty days from the date of entry of the order from which the appeal is taken. The Supreme Court of Appeals shall consider and decide the appeal upon the original papers and documents, without requiring the same to be printed and shall enforce its findings by proper writ. From the date of any order of the three-judge court removing an officer under this section until the expiration of thirty days thereafter, and, if an appeal be taken, until the date of suspension of such order, if suspended by the three-judge court and if not suspended, until the final adjudication of the matter by the Supreme Court of Appeals, the officer, commission or body having power to fill a vacancy in such office may fill the same by a temporary appointment until a final decision of the matter, and when a final decision is made by the Supreme Court of Appeals shall fill the vacancy in the manner provided by law for such office.
(i) In any case wherein the charges are proffered by the chief inspector and supervisor of public offices against the county commission or any member thereof or any county, school district or municipal officer, the proceedings under this section shall be conducted and prosecuted in the same manner set forth herein for removal by resolution or petition by the prosecuting attorney of the county in which the officer proceeded against resides, and on any appeal from the order of the three- judge court in any such case, the Attorney General of the state shall represent the people. When any municipal officer is proceeded against the solicitor or municipal attorney for such municipality may assist in the prosecution of the charges.
(j) If a judicial proceeding under this section is dismissed or otherwise resolved in favor of the challenged officer who has been found to be acting in good faith, the political subdivision for which the officer serves shall be responsible for the court costs and reasonable attorney fees for the officer.
§ 6-6-8. Removal of appointive county, district or municipal officers without fixed terms.
The court, board, body or officer authorized by law to appoint any person to any county, magisterial district, independent school district, or municipal office, the term or tenure of which is not fixed by law, may remove any person appointed to any office by such court, board, body or officer, with or without cause, whenever such removal shall be deemed by it, them or him for the good of the public service, and the removal of any such person from office shall be final.
§ 6-6-9. Forfeiture of office on conviction of offense.
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EVANS v. HUTCHINSON, 158 W.Va. 359, 214 S.E.2d 453 (1975).
HADEN, Chief Justice:
. . . The appellees are citizens and taxpayers of Wayne County who petitioned the court there for
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removal of the entire membership of the Board [of Education] on various charges involving misconduct, neglect of official duties and malfeasance. At trial, proof centered upon two matters: first, an uncontroverted showing that the Board had spent itself into deficit for the consecutive fiscal years of 1970-71 and 1971--72; and second, that certain Board members and a member-elect had used the county school bus garage, its equipment and a small amount of consumable supplies owned by the Board for the painting of the members' privately owned motor vehicles.
In a comprehensive and able opinion prepared by the Honorable C. W. Ferguson, III, Judge, the circuit court set forth findings of fact and conclusions of law supporting its final order. Based upon the evidence, the trial court did not find Board members Lawrence Morrison and Frank Canterbury guilty of wrongdoing warranting removal from office. In Lawrence Morrison's case, the court found that the deficit for the fiscal year 1970-71 occurred by reason of procedures effectuated before he assumed office, and that as to the deficit for fiscal year 1971-72, Morrison was not responsible because he had on several occasions objected to the Board's fiscal practices and lack of controls, had voted against the rehiring of the encumbent superintendent and had objected to the adoption of the proposed budget for fiscal 1971-72. As to the charge of malfeasance, no evidence was adduced to demonstrate that Morrison had participated in or had knowledge of the painting incidents at the county school bus garage. Frank Canterbury and Franklin Stephenson, having first taken office on January 1, 1973, were held not chargeable for neglect of duty in regard to the occurrence of the deficits in prior fiscal years, and upon their motion, such charges against them were dismissed by the court prior to trial.
Although some evidence was introduced at trial by the petitioners' witness Glen Curnutte that he would receive a job with the Board of Education in return for painting the privately owned automobiles at the school bus garage, and that Canterbury had participated in the 'job offer' and thereby must have had knowledge of the activities involved in the malfeasance charge, the court found that this evidence, standing alone, did not rise to the level of proof sufficient to warrant Canterbury's removal on the charge of malfeasance.
On the other hand, the uncontroverted evidence demonstrated that Hutchinson, an encumbent Board member, had had his own personal automobile painted by Curnutte at the Board garage and had several times promised or implied to Curnutte that he would receive a job with the Board of Education. Additional evidence showed that Curnutte had also painted Hutchinson's aunt's automobile at Hutchinson's request at the school garage. In Stephenson's case, the evidence showed that Curnutte repaired and painted Stephenson's truck, beginning while Stephenson was a member-elect, and concluding just after the 1st of January 1973, when Stephenson assumed office. Both Hutchinson and Stephenson introduced evidence that they had either furnished or paid for the paint used on their motor vehicles and had, as well, furnished most of the incidental supplies required for the painting projects.
At trial and here, on this appeal, appellants defend against this charge of malfeasance on three bases. First, they say that the use of school board facilities was in fact a well-accepted custom and practice of long duration done to foster and promote good public relations for the School Board with the community and other units of government. As examples of 'similar' use of school facilities, they pointed to the fact that state policemen attached to the Department of Public Safety had regularly used the school bus garage on a gratuitous basis for the purpose of repairing their assigned State vehicles and privately owned vehicles and that other school facilities such as cafeterias and auditoriums had been used for dinners and meetings by the general public and by clubs and organizations. The trial court in its findings did not express approval of the use of the school bus garage by the Department of Public Safety police officers and expressly rejected, as dissimilar, the use of school board facilities for meetings and dinners by the general public, clubs and organizations from those activities charged to be malfeasant conduct in this case.
The permissible extra-educational uses of school board facilities are clearly delineated in Code
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1931, 18-5-19, . . . permitting, inter alia, use '. . . to promote and facilitate frequent meetings and associations of the people for discussion, study, recreation and other community activities, and (to) secure, assemble and house material for use in the study of farm, home and community problems . . ..' The statute speaks comprehensively on the subject of extra-educational use of school facilities and hence operates to invoke the maxim of inclusio unius est exclusio alterius... The obvious spirit of the statute permitting certain extra-educational uses of school facilities is to promote activities of a public rather than a private nature. . . . That the use in question was of a private rather than public nature cannot be seriously denied. The trial court therefore quite properly rejected this theory of defense.
Secondly, both appellants defended on the basis that such conduct, if wrong, was not official misconduct but rather, conduct done by them as individuals in their private capacity and not acting as Board members. The trial court rejected that theory of defense.
The official misconduct necessary to warrant removal from public office need not arise from or involve the precise duties enjoined upon the office held; it is, rather, any unlawful behavior 'in relation to' the duties of the office. Kesling v. Moore, 102 W.Va. 251, 135 S.E. 246 (1926). The test, therefore, is relevancy. It cannot be asserted seriously on these facts that the assailed conduct arose other than for the reason that these officials (appellants) were exercising what they believed to be the perquisites of their office. Conversely, no one connected with this case attempted to justify or excuse the conduct by demonstrating that the painting activity in any manner was coincident to a school-related activity. Under these circumstances, therefore, the trial court properly rejected such defense.
Thirdly, both parties defended on the basis that, if their conduct constituted a technical malfeasance in office, it was of such a trivial or inconsequential nature as to be characterized in law as de minimus and as such not sufficient to warrant their removal from office on the ground of malfeasance. The trial court also rejected this mode of defense.
Although the de minimus principle is generally recognized as a proper defense in a removal proceeding, Jordan v. McCourt, 135 W.Va. 79, 62 S.E.2d 555 (1950)[,] . . . the defense is essentially one of fact, the resolution of which by a fact finder would be entitled to great weight by this Court. In Daugherty v. Ellis, 142 W.Va. 340, 97 S.E.2d 33 (1956), it was said: 'The finding of a trial court upon facts submitted to it in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by an appellate court unless the evidence plainly and decidedly preponderates against such finding.' . . . In view of the conflicting evidence in this case relating to the use of the school board materials and equipment in the preparation and painting of the vehicles, the uncontroverted evidence concerning the use of the garage facility--necessarily involving the use and consumption of incidental utilities--and the conflicting evidence relating to the promise of a job to Curnutte, this Court is of opinion that the trial court did not reject improperly, the de minimus contention. It chose to give greater weight to the totality of the activities knowingly conducted on school property for private gain.
Additionally, Stephenson, the Board member-elect prior to January 1, 1973, relied upon this Court's holding in the case of Smith v. Godby, 154 W.Va. 190, 174 S.E.2d 165 (1970), which acknowledged, inter alia, a general proposition also found in 63 Am.Jur.2d Public Officers s 199 (1972):
'According to many authorities, a public officer may not be removed or impeached for acts committed before his entry into office, . . ..' The trial court did not choose to apply that general statement of the law to the evidence of this
case. The Constitution of West Virginia (Art. IV, § 6) authorizes removal from office for official misconduct, etc., without reference to the current term of office. Similarly, Code 1931, 6-6-5, as amended, authorizes removal for misconduct, etc., without reference to any particular term. Nevertheless by clear implication such misconduct must relate to the office held.
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This is not to say, however, that election or reelection to a term of office immaculates the officeholder. Where, as here, the alleged misconduct arises out of the exercise of anticipated authority by the official elect, relative to and under circumstances reasonably invoking response from others to the privilege or authority asserted, the so-called 'general rule' must necessarily be qualified to permit consideration of such circumstances as constituting possible grounds for removal. Such transgressions, although occurring prior to the assumption of office, relate directly to the anticipated term. Further, as these activities occurred post election, they cannot, be construed, by any stretch of legal fiction, as condoned by the electorate. Under these circumstances, therefore, the trial court quite properly considered Stephenson's misconduct occurring just prior to his taking office as relevant to the charge of malfeasance. . . .
As to all of the foregoing, this Court is not distressed as to either the correctness of the court's legal rulings or the substantial weight of evidence supporting its findings of fact. Its conclusions exonerating two Board members on all charges and removing two other Board members on charges of malfeasant conduct are amply supported by the evidence of the case. The excuses offered by the respondents Hutchinson and Stephenson do not provide legal justification for reversal by this Court.
On the other hand, we are troubled by the trial court's finding that the appellants Hutchinson and Brown were guilty of official misconduct and neglect of official duty under Code 1931, 6--6--7, and in specific regard to the deficit operation of the Board of Education, proscribed by Code 1931, 11--8-- 26. These findings were predicated upon the court's legal conclusion that a deficit in excess of 3% of the county property tax levies devoted to school purposes occurred and that that constituted a removable offense within the meaning of the applicable statutes. We granted this appeal primarily to determine whether the trial court was correct in that legal determination. The resolution of this question is a matter of importance, specifically to the outcome of this case and generally, and more sgnificantly, to the control policies employed to secure fiscal responsibility in the operation of school districts throughout the [West Virginia]. . . .
In January of 1973, the Tax Commissioner certified the official results of the audits for the two fiscal years and there determined that the Board of Education incurred a net deficit in the amount of $105,926.08 for the fiscal year ending June 30, 1971, and also incurred a net deficit in the amount of $186,734.97 for the fiscal year ending June 30, 1972. In each instance, the Tax Commissioner concluded that the deficit did not exceed the 3% casual deficit permitted by W.Va.Code [11-8-26], which provides, in part, as follows:
'. . . (A) local fiscal body shall not expend money in incur obligations: '(3) In excess of the amount allocated to the fund in the levy order; '(4) In excess of the funds available for current expenses. 'Notwithstanding the foregoing and any other provisions of law to the contrary, a local fiscal body or its duly authorized officials shall not be penalized for a casual deficit which does not exceed its approved levy estimate by more than three per cent, provided such casual deficit be satisfied in the levy estimate for the succeeding fiscal year.' . . . Levy estimate is defined by the Code as follows: 'Levy estimate' means the summary statement
of the total budgeted school requirements prepared and adopted by a county board of education in accordance with law, in justification of the amount levied upon taxable property within the county for the support of the local schools.' W.Va.Code [18-9B-2]. . . .
[T]he Tax Commissioner concluded that in fiscal year 1971, the Wayne County Board of Education was operating on a total budget of approximately $7.5 million and in fiscal year 1971-72 was operating on a total budget of approximately $8.3 million. These figures aggregated all the monies available to the local board of education, including the local share of tax monies leviable through the tax limitation amendment, the 100% excess levy monies approved by the voters of Wayne County for a five-year period, the state aid foundation formula monies available from the State of West Virginia, federal aid monies, and miscellaneous sources of income. . . . The Tax
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Commissioner's method of calculating the total expenditures of the Board of Education in the two fiscal years and in arriving at his conclusion of the deficit amounts was agreed to by the State Department of Education and the State Board of School Finance. . . .
The . . . basic problem of this case [is] whether all funds available for expenditure by a county board of education are to be used in determining whether the proscribed deficit has occurred, or whether, as the trial court felt, only those funds available from county property tax share monies are to be computed in determining the amount of the deficit figure.
On this point, the trial court said that the Tax Commissioner, the State Department of Education and the Board of School Finance were wrong in their legal determination and that it was not within the province of an administrative body to make such determination in the first instance.
With this latter conclusion we respectfully disagree with the trial court. Staggering administrative burden would fall to the entire court system if administrative bodies operating as delegates of the Executive Department were forbidden to make interpretations of statutes which they are charged by law with administering. This Court has consistently recognized that the uniform construction of a statute by administrative officers charged with the duty of enforcing the same is entitled to great weight by the courts where the language of the statutes is ambiguous or of doubtful meaning.
. . . [W]e recognize and reaffirm the principle that an administrative officer has the authority to construe and apply a statute of doubtful meaning which he is charged to administer so long as such application of the law does not contravene the plain provisions of the statute. Secondly, we hold that the trial court also was in error in concluding as a matter of law that the calculation of an allowable 3% or casual deficit within the meaning of [§ 11-8-26] is to be made solely against the amount of monies available to a school district through levy upon property located in that county. We accordingly hold that the deficits in the fiscal years of 1970--71 and 1971--72 in the amount of $105,926.08 and $186,734.97, respectively, were casual deficits permissible by statute. Further the officers ultimately responsible for those deficits, the members of the Board of Education of Wayne County were entitled to the benefits of the 'hold harmless' provision of [11-8-26], which provides inter alia that 'a local fiscal body * * * shall not be penalized for a casual deficit which does not exceed its approved levy by more than three per cent, provided such casual deficit be satisfied in the levy estimate for the succeeding fiscal year.'
Having decided that the respondents Brown and Hutchinson were not in violation of [11-8-26], we are nevertheless faced with the additional and more general question of whether Board members, Hutchinson and Brown, were, as the trial court found, also in violation of Code [6-6-7], the more general statutory provision providing that an official may be removed from office for, among other things, official misconduct or neglect of official duty.
In this respect, notable failings within the financial management and accounting system of the Wayne County Board of Education were recognized and given comment by the trial court in its decision. It is readily apparent, however, that the trial court's decision was predicated primarily on the findings that the deficits in question were not casual in nature. Conversely it is equally apparent that the effect of such fiscal failings, independently of the deficit question, were not found to constitute removable conduct.
In a recent appeal in which this Court ordered the reinstatement of an assessor removed from office, this Court held:
'The remedy for the removal from office of a public officer is a drastic remedy and the statutory provision prescribing the grounds for removal is given strict construction.' Syllabus point 2, Smith v. Godby, supra. That case also recognized that, under [§ 6-6-7], 'to remove a person from office the charge against
him must be established by satisfactory proof.' Further, this Court elaborated by approving the proposition that 'the evidence to sustain a removal in a proceeding to remove a public officer must be clear and convincing.' . . .
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Moreover, in Hamrick v. McCutcheon, 101 W.Va. 485, 133 S.E. 127 (1926), it was said: '. . . (T)he defendants must be judged by the standard of the reasonably careful man, and not by the standard of extraordinary prudence. . . . To exact a higher degree of care would deter prudent men from accepting office.’ . . . We therefore hold that the 'satisfactory proof' required by statute, in this context, must be clear
and convincing. Accordingly, the trial court's ruling which removed Hutchinson and Brown because of their failure to correct fiscal procedures which brought the Board to a deficit financial position must be reviewed from this perspective.
The evidence in this case amply supports the lower court's characterization of the Board's accounting system as 'a mess.' The court also was justified in its criticism of the appellants for retaining in office, after receiving notice of the fiscal problems, the former superintendent of schools who was responsible for the abysmal bookkeeping. But a realistic appraisal of the evidence reveals no more than the fact that the slipshod accounting practices kept the Board's membership in the dark as to the exact state of its current financial position. Other than the excusable, but unlaudable, deficit occurrences, the Board was not conducting business unlawfully.
The terms 'official misconduct' and 'neglect of official duty' apparently are not susceptible of either simple definition or easy application. The general statements most often resorted to by this Court in removal proceeding appeals was framed by Judge Miller in Kesling v. Moore, 102 W.Va. 251, 135 S.E. 246 (1926):
"By official misconduct is meant any unlawful behavior in relation to the duties of his office, wilful in its character, by any officer intrusted in any manner with the administration of justice or the execution of the laws.' . . . 'Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character.' . . . 'Misconduct in office means any unlawful misbehavior in regard to the duties of an office, wilful in its character.' . . .'The official neglect to do an act which ought to have been done, will constitute the offense, although there was no corrupt or malicious motive.' . . . From the above, mere proof of either a negligent omission, i.e., failure to act or a negligent act
which does not result in unlawful consequences, is not proof of a removable offense. In this case, negligence in fiscal affairs is apparent. But, when the operating deficits are held to be casual and thus excusable in law, the charge of unlawful conduct against appellants fails. The cases which the trial court relied upon to support its contrary ruling all involved, in one aspect or another, wilful, unlawful conduct on the part of the charged officials, and are, therefore, inapposite. . . . Accordingly, the evidence of general negligent conduct or failure to act when action is normally required, without consequences declared unlawful by statute or case law, will not sustain the removal charges against the appellants.
As we likewise held in Smith v. Godby, supra: 'When the finding of a trial court in a case tried by it in lieu of a jury is against the preponderance of the evidence, is not supported by the evidence, or is plainly wrong, such finding will be reversed and set aside by this Court[.]’ . . . Since, for the reasons stated, this Court is of the opinion that the finding of official misconduct
and neglect of duties by Hutchinson and Brown were not supported by the evidence, the trial court's judgment was reversed by our previous order. Appellant Brown was thereby relieved of all charges.
Affirmed in part; reversed in part.
SPROUSE, Justice (dissenting):
I concur with the majority opinion except that part relating to the interpretation of West Virginia Code [11-8-26]. I respectfully dissent from the majority's view that this section permits local fiscal bodies to overspend an amount equal to three per cent of their total budget. Officials are permitted
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such annual over-expenditure or 'casual deficit' without penalty if it does not exceed three per cent of 'its approved levy estimate.' The Wayne County School Board's expenditures were more than three per cent over their approved levy estimate, but less than three per cent over their entire budget. That part of Code, 11-8-26(4) protecting officials from penalties for such expenditure, provides:
'(4) In excess of the funds available for current expenses. Notwithstanding the foregoing and any other provision of law to the contrary, a local fiscal body or its duly authorized officials shall not be penalized for a casual deficit which does not exceed its approved levy estimate by more than three per cent, provided such casual deficit be satisfied in the levy estimate for the succeeding fiscal year.' . . . To arrive at its holding, the majority interpreted 'approved levy estimate' to mean 'total budgeted
requirements' of the board of education. This interpretation is unwarranted because the statute is unambiguous. 'Levy estimate' has a clear meaning, frequently applied in this State, but even if there was doubt as to its general meaning, the term is precisely defined as it relates to school budgets. In Code [18-9B-2], it is defined as follows:
"’Levy estimate' means the summary statement of the total budgeted school requirements prepared and adopted by a county board of education in accordance with law, in justification of the amount levied upon taxable property within the county for the support of the local schools.'” Unambiguous statutes are to be applied, not construed. . . . Funds received by a school board from a levy are only part of its total budgeted funds. The
Legislature by the language in Code, 11-8-26(4) manifested its intent that an official should be penalized only for a 'casual' deficit in relation to this amount. The legislative intent being clear, its purpose in defining a 'casual deficit' in relation to this smaller increment of funds rather than to the total amount available to a fiscal body is unimportant.
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RICE V. UNDERWOOD, 205 W.Va. 274, 517 S.E.2d 751 (1998).
WORKMAN, Justice:
The Appellant and Petitioner below, Thomas D. Rice ("Appellant"), appeals the denial of his petition seeking to prohibit the Appellee and Respondent below, the Honorable Cecil H. Underwood, Governor of the State of West Virginia ("Governor Underwood"), from removing him as an appointed member of the West Virginia Racing Commission ("Racing Commission") before the expiration of his term and seeking an order that Governor Underwood's appointment of Mr. Rice's successor to the Racing Commission be declared null and void.
This matter was originally brought as a writ of prohibition against Governor Underwood in the Circuit Court of Kanawha County. The circuit court correctly recognized that Appellant's petition
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for writ of prohibition was inappropriate since it was not directed to an inferior tribunal.1
Accordingly, the circuit court properly elected to treat Appellant's petition as a writ of mandamus and petition for injunctive relief. Appellant contends that West Virginia Code § 6-6-4 (1993), upon which Governor Underwood based his removal of Appellant, (1) violates the West Virginia Constitution and (2) was repealed by implication with the enactment of West Virginia Code § 19-23-27 (1997). Because we find that West Virginia Code § 6-6-4 is consistent with constitutional provisions, has not been repealed by implication, and was properly invoked by Governor Underwood in removing Appellant from the Racing Commission, we must uphold the circuit court's order denying the relief sought by Appellant.
I. Background Facts The basic facts in the case are not disputed. Appellant was appointed as a member of the Racing
Commission by former Governor, Gaston Caperton, on August 2, 1996. Appellant's appointment was confirmed by the Senate of the West Virginia Legislature in Special Session on October 16, 1996. Appellant's appointment was for a term ending April 1, 2000. Governor Underwood, without citation of cause, removed Appellant as a member of the Racing Commission effective November 15, 1997. Governor Underwood's November 13, 1997, letter removing Appellant simply stated, "[b]y virtue of the authority vested in me as Governor of West Virginia, I hereby remove you from office as a member of the West Virginia Racing Commission, effective November 15, 1997." Governor Underwood appointed Joseph B. Knotts as Appellant's successor, effective November 16, 1997. Mr. Knotts' appointment was unanimously confirmed by the Senate of the West Virginia Legislature in the 1998 Regular Session on March 14, 1998.
Appellant brought a writ a prohibition against Governor Underwood in the Circuit Court of Kanawha County on November 24, 1997, seeking an order to prohibit Governor Underwood from removing him from the Racing Commission. On that same day, a rule to show cause was issued. On December 4, 1997, Appellant amended his petition and sought an order that Governor Underwood's November 16, 1997, appointment of Joseph B. Knotts to the Racing Commission be declared null and void. As explained above, the circuit court treated Appellant's petition for a writ of prohibition as a writ of mandamus and petition for injunctive relief. After a hearing on the matter, the circuit court issued an order, dated December 19, 1997, denying the relief sought by Appellant and dismissing his petition. ...
III. Discussion Appellant first contends that the lower court erred by failing to recognize that West Virginia Code
§ 6-6-4, upon which Governor Underwood relied in removing him, violates Article IV, § 6, Article IV, § 8, Article V, § 1, Article VII, § 8, and Article VII, § 10 of the West Virginia Constitution, as they apply to a public officer or board member with staggered fixed terms whose duties are quasi-legislative or quasi-judicial in nature. Appellant argues that the separation of powers doctrine dictates that the executive is not to use the sword of removal of a quasi-judicial or quasi- legislative public officer simply because he wishes to have someone of his own choosing in that office.
In removing Appellant, Governor Underwood relied upon West Virginia Code § 6-6-4[.] . . . Through the enactment of this statutory provision, the Legislature codified a general removal statute which authorizes a governor to remove appointed executive officers at a governor's will and pleasure without stating his reasons for removal.
Before turning our discussion to the constitutionality of West Virginia Code § 6-6-4, we must clarify the function of the members of the Racing Commission. Racing Commission commissioners
1Prohibition does not lie to control a legislative body or to prevent an executive act. State ex rel. Miller v. Smith, 168 W.Va. 745, 755, 285 S.E.2d 500, 506 (1981). The writ of prohibition should be used only to restrain subordinate courts and inferior judicial tribunals from exceeding their jurisdiction. State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 677, 143 S.E.2d 535, 540 (1965).
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are appointed by the governor for a term of four years subject to Senate confirmation, pursuant to West Virginia Code § 19-23-4(b) (1997). The Racing Commission was created as a public corporation in West Virginia Code § 19-23-4(a). As such, the commissioners are public officers in supervisory positions charged with the operation of a public corporation.
Appellant's effort to characterize the racing commissioners as quasi-judicial or quasi- legislative officers entitled to special legal protection misstates their primary function. Further, the exercise of quasi-judicial power does not change the nature of an administrative agency. The responsibilities of the members of the Racing Commission are primarily administrative, because they execute the legislative scheme for overseeing and profiting from horse and dog tracks. Their responsibilities include promulgation of rules for the conduct of horse and dog racing; licensing track operators; issuance of permits to owners, jockeys, trainers, pari-mutuel employees and other persons connected with horse and dog racing; hiring staff to maintain records and to supervise racing events and pari-mutuel wagering; inspection of racing kennels and stables; setting racing dates for dog and horse races; registering colors and racing names; fixing purses; testing for doping and other abuse of dogs and horses; deciding disputes on the distribution of purses and authorizing simulcasting of racing events to and from other legal tracks. See W.Va.Code §§ [19-23-4 through 12].
The Racing Commission, like other administrative agencies, performs some quasi-judicial functions when it hears appeals of license applications, permit revocations and racing disputes pursuant to West Virginia Code § 19-23-16 (1997), or when it is involved in an investigation of regulatory violations pursuant to West Virginia Code § 19-23-15 (1997). The delegation of quasi- judicial powers to an administrative agency, which includes the power to conduct hearings and make findings of fact, does not violate the separation of powers. Appalachian Power Co. v. Public Service Commission, 170 W.Va. 757, 759, 296 S.E.2d 887, 889 (1982). In addition, the deciding of contested cases by a board or regulatory body is a recognized administrative function and does not transform the administrative agency into a court. State v. Huber, 129 W.Va. 198, 217, 40 S.E.2d 11, 22 (1946).
The Racing Commission is deserving of the close scrutiny of the executive branch. Given the nature of its role as a public corporation generating significant revenues for the state and the public's sensitivity to gambling activities, it is understandable that the Legislature wanted members of the Racing Commission subjected to oversight by an elected official. Empowering the governor with the authority to remove members of the Racing Commission at the governor's will and pleasure places greater responsibility on the governor for the performance of the Racing Commission.
We now turn our discussion to the constitutionality of the general removal statute, West Virginia Code § 6-6-4. Three sections of the West Virginia Constitution specifically speak to the removal of appointed public officers in the executive branch. These sections include Article IV, § 6, Article IV, § 8 and Article VII, § 10.4 Article IV, § 6 pertains to the general power of the Legislature to provide by law for the removal of all elected and appointed officers for cause unless the officer's removal is otherwise provided for in the constitution. . . .
Article IV, § 6, is not, however, the exclusive means by which public officers in appointed positions like the Racing Commission may be removed from office. Specifically referring to the governor, Article VII, § 10 of the West Virginia Constitution provides that "[t]he governor shall have power to remove any officer whom he may appoint in case of incompetency, neglect of duty, gross immorality, or malfeasance in office; and he may declare his office vacant and fill the same as herein
4Article VII, § 8, an additional section cited by Appellant, gives the governor the exclusive power, subject to confirmation by the Senate, to appoint public officers whose appointment or election is not otherwise provided for. While this article serves to preserve the separation of powers by restricting the power of the legislature to appoint public officers, it does not seek to define the removal authority of the governor or the legislature. In addition, this section is not relevant to our discussion because West Virginia Code § 19-23-4 specifically provides for the appointment of its commissioners.
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provided in other cases of vacancy." While providing only limited grounds for removal, Article VII, § 10 applies to any executive branch public officer appointed by the governor and gives the governor an "irreducible minimum of power" to remove officers he appoints in cases of incompetency, neglect of duty, gross immorality and malfeasance. State ex rel. Thompson v. Morton, 140 W.Va. 207, 218, 84 S.E.2d 791, 798 (1954). Appellant suggests that the governor's power to remove members of the Racing Commission rests solely in this provision. In Morton, this Court specifically found that such a construction of Article VII, § 10, "would, in effect, deny the Legislature power to legislate as to all causes of removal of such officers other than those designated in Section 10, which would be in direct contravention of the provisions of Section 8 of Article IV." . . .
Article IV, § 8 pertains to a narrower class of appointed officers than those described in Article VII, § 10, however, it is not as restrictive in limiting the means of removing public officers from legislatively-created offices. Article IV, § 8 of the West Virginia Constitution specifically provides: "The legislature, in cases not provided for in this Constitution, shall prescribe, by general laws, the terms of office, powers, duties and compensation of all public officers and agents, and the manner in which they shall be elected, appointed and removed."
In creating public offices, Article IV, § 8 does not require that the Legislature choose between a term of office, and the right of the governor to remove a public officer at the governor's will and pleasure. Further, retention of appointment confirmation power in the Senate does not preclude a concurrent statutory provision for will and pleasure removal by the governor. Accordingly, this Court has held that "there can be little doubt that the Legislature has power to create an office and provide that a person appointed thereto may serve for a fixed term unless sooner removed by the Governor, as it has done by ... Code, 6-6-4." Morton[.] . . .
This Court has held that constitutional provisions, concerning the same subject matter, must be read together. White v. Manchin, 173 W.Va. 526, 536, 318 S.E.2d 470, 480 (1984). In Morton, we found that Article VII, § 10 and Article IV, § 8 "are required to be read together for the purpose of determining the constitutional intent as to the entire subject of removal as to such [public] officers." . . . The plain language of Article IV, § 8 grants the Legislature the authority to fix the term of an office, not provided for in the Constitution, prescribe the powers duties and compensation and the manner of election, appointment and removal. Accordingly, the governor's removal power does not solely rest in the provisions enunciated in Article VII, § 10, as Appellant suggests. Clearly, Article IV, § 8 empowers the Legislature to provide for other means of removal of public officers.
Contrary to Appellant's first assignment of error, the members of the Racing Commission have no special status based on their quasi-judicial functions, either through statutory or common law, granting them protection from the general removal law which allows the removal of appointed officials at a governor's will and pleasure. In creating the Racing Commission, the Legislature created no internal removal provision5 limiting the grounds upon which appointed Racing Commission commissioners may be removed from office. West Virginia Code § 19-23-4(b) specifically provides, in pertinent part, that "[t]he members of the racing commission in office on the effective date of this article [July 25, 1969] shall, unless removed by the governor after the effective date of this article, continue to serve until their terms expire a