Chief Justice Menis Ketchum

CHARLESTON - The West Virginia Supreme Court of Appeals, in a ruling Monday, said it "found no error" in a circuit court order dismissing a grievance by former state Archives and History Director Fred Armstrong.

Armstrong served as director of the state archives for more than 20 years before being fired in 2007 by state Division of Culture and History Commissioner Randall Reid-Smith.

Armstrong, who filed a grievance with the state's Public Employees Grievance Board against the division the same day as his firing, alleged a dispute with his superiors, as well as a written reprimand, played a direct role in his termination.

In his grievance, he argued his dismissal was improper under West Virginia law, and requested reinstatement to his position, an apology and "acknowledgment" for his past work.

In February 2008, Administrative Law Judge Janis I. Reynolds denied a motion to dismiss by the division. The order effectively authorized the filing of an amended grievance by Armstrong.

In June 2008, ALJ Denise Spatafore, who took over for Reynolds following her retirement, issued a 12-page order dismissing the amended grievance.

Armstrong then filed an appeal in the Kanawha County Circuit Court.

Judge Paul Zakaib issued a 43-page order on Dec. 22, 2010, affirming the dismissal order.

On appeal before the state's high court, Armstrong argues the lower court erred by affirming the board's decision to dismiss his amended grievance without a hearing before the ALJ and that Spatafore had no authority to enter a dismissal order after Reynolds denied the division's motion to dismiss.

The holding of a hearing is a "discretionary decision" of an ALJ, the Court said.

"Upon examination of the Rules of Practice and Procedure of the West Virginia Public Employees' Grievance Board, we find that there is a procedure in place for the disposition of grievances without a hearing," the justices explained in their per curiam opinion.

"Rule 6.2 grants to the administrative law judge the authority and discretion to control the processing of each grievance, and to take such actions deemed appropriate. Rule 6.11 specifically authorizes the dismissal of claims found to be without merit. Rule 6.6.1 allows the administrative law judge to 'hold a hearing on a motion if it is determined that a hearing is necessary to the development of a full and complete record upon which a proper decision can be made.'"

As to Spatafore's decision, the Court said it found "no clear error" in the circuit court's ruling on the issue.

"There is plainly no barrier to another administrative law judge ruling upon a different motion to dismiss, especially where that new motion is based on additional information developed through discovery of the petitioner and the Commissioner (Reid-Smith), as well as Secretary (Kay) Goodwin," the justices wrote in their 15-page ruling.

As for Armstrong's argument that his firing violated public policy, the Court again sided with the lower court.

"In its order, the circuit court found that the petitioner failed to allege what substantial public policy was violated by his termination. The petitioner stated nothing on the face of the amended grievance to articulate what substantial public policy was violated," the justices wrote. "It is not enough to make conclusory statements about the violations.

"We find no error in the administrative law judge's use of a procedural rule allowing the dismissal of grievances that fail to state a claim upon which relief may be granted or in the circuit court's affirmation of that act."

Justice Margaret Workman, who had disqualified herself from the case, did not participate in the Court's decision.

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