CHARLESTON – The state Supreme Court has granted a prohibition writ in a lawsuit that it said was not timely filed.



West Virginia Consolidated Public Retirement Board, as administrator of the West Virginia Public Employees Retirement System, invokes this court's original jurisdiction in prohibition to challenge Mason Circuit Court's Nov. 13 order granting Michael Whalen's motion for summary judgment and denying the retirement board's motion for summary judgment and motion to dismiss, according to the April 13 order by the W.Va. Supreme Court of Appeals.


Justice Menis Ketchum authored the opinion.


In 1998, the retirement board ruled that a $60,000 "buyout" payment received by Whalen in 1996 did not constitute "salary" and would not be included when calculating his retirement annuity benefit.


Whalen filed a complaint in the Mason Circuit Court in 2001 that was, in essence, an appeal of the retirement board's 1998 final  order.


Both the Mason Circuit Court and Whalen agree that the 2001 complaint is an appeal of the retirement board's 1998 final order.


The retirement board contends that Whalen's appeal was not filed within the 30-day period specified by West Virginia code and that the circuit court exceeded its jurisdiction in ruling that Whalen’s appeal was timely.


"Upon review, this court concludes that Mr. Whalen’s appeal was not filed within the time period specified in W.Va. Code § 29A-5-4(b), and that, consequently, the retirement board is entitled to relief in prohibition," the opinion states. "We therefore grant the requested writ of prohibition."


Whalen entered into a four-year contract with the Mason County Board of Education to serve as superintendent of schools on Jan. 23, 1993, and in 1996, he and the board entered into a settlement agreement in which Whalen agreed to forgo the final year of his contract in exchange for a lump sum payout of $60,000 and Whalen retired on July 1, 1997.


In Aug. 27, 1997, the retirement board sent Whalen a letter advising him that the $60,000 payment was not considered salary and would not be included as part of his final average salary when calculating his retirement annuity benefit.


On Jan. 29, 1998, Whalen filed an administrative appeal requesting the buyout be considered salary and a hearing was held on March 26, 1998. On March 31, 1998, a hearing officer held that the payment was not salary.


Whalen obtained counsel and in August 1998, and filed his civil complaint on June 13, 2001. The retirement board filed a motion to dismiss in July 2001, asserting that Whalen sued the wrong party and that his complaint was untimely filed.


On Nov. 13, Mason Circuit Court granted Whalen's motion for summary judgment and denied the retirement board's motion for summary judgment and motion to dismiss. the retirement board then filed a writ of prohibition with the State Supreme Court.


On Feb. 4, the State Supreme Court entered an order directing Whalen to show cause why relief in prohibition should not be awarded.


"Because Mr. Whalen did not file a timely appeal of the retirement board's 1998 order, we find that the circuit court's order granting Mr. Whalen's motion for summary judgment and denying the retirement board's motion for summary judgment and motion to dismiss is clearly erroneous as a matter of law," the opinion states.


The State Supreme Court found that the retirement board is entitled to a writ of prohibition to prohibit the enforcement of the circuit court’s Nov.  13 order granting Whalen's motion for summary judgment and denying the retirement board's motion for summary judgment and motion to dismiss.


"We therefore vacate the November 13, 2014, order of the Circuit Court of Mason County and  dismiss with prejudice  Mr. Whalen's complaint (appeal) against the retirement board because it was untimely filed under the plain language of W.Va. Code  §  29A-5­4(b)."


The plaintiff was represented by J. Jeaneen Legato.


The defendant was represented by William B. Summers of Summers & Associates.


W.Va. Supreme Court case number: 14-1250

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