Justices asked to straighten out DNR raise issue

By Steve Korris | Feb 23, 2007


CHARLESTON – Administrative Law Judge Paul Marteney tied West Virginia courts into knots when he rescinded pay raises for six Division of Natural Resources employees.

Now, the Supreme Court of Appeals must untie the knot.

No one asked Marteney to rescind any raises. He came up with the idea in response to a discrimination charge of three other state employees.

Instead of granting raises to bring the three even with the six, he sliced the pay of the six to bring them even with the three. The six later recaptured their raises, but the three got nothing.

Now, the three want the Supreme Court of Appeals to let them pursue raises in Kanawha Circuit Court.

The Justices heard oral arguments Feb. 14.

The struggle began in 2002 when conservation officers Stephen Antolini, Mickey Sylvester and Roger McClanahan filed grievances in the department.

They demanded raises of $1,767.12 per year, equal to raises the department granted to six regional training officers.

Both job titles corresponded to the military rank of sergeant.

The department argued that it granted merit pay to the training officers through proper procedures.

In 2003, at the end of the grievance procedure, Marteney took away the raises the training officers had received.

Three weeks later, training officer Stephen Rexrode appealed the decision in Grant County circuit court.

The next week, five other training officers appealed in Kanawha Circuit Court.

Two weeks after that, the three who sought pay raises appealed Marteney's decision in Kanawha Circuit Court.

In Grant County, Circuit Judge Andrew Frye ruled in 2004 that Marteney's decision constituted an unlawful taking from training officer Rexrode. He found that the conservation officers did not deserve raises and ordered the department to continue paying the training officers salaries that included merit pay.

In Kanawha County, the other five training officers asked Circuit Judge Paul Zakaib to follow Frye's order.

Zakaib followed Frye. In 2005, he granted summary judgment to the five training officers.

Next he barred the claims of Antolini, McClanahan and Sylvester under the doctrine of res judicata.

Res judicata means a matter judged. The doctrine prohibits litigation of issues that have already been litigated.

According to Zakaib, Frye's order closed the book on the case.

Antolini, McClanahan and Sylvester petitioned the Supreme Court of Appeals last year to declare that Zakaib improperly relied on res judicata.

Their attorney Andrew Chafin wrote that Frye lacked jurisdiction to review Marteney's decision. He argued that Frye mixed two kinds of cases in one order and that the unlawful taking claim of the training officers was a contract claim and the claim of the conservation officers was a tort.

He wrote that Frye incorrectly assumed that the remedies sought by the training officers and the conservation officers were mutually exclusive. He wrote that his clients sought and still seek pay increases.

For the department, Special Assistant Attorney General Kelly Goes argued that Frye's order covered the training officers who sued in Kanawha County.

"The DNR should not be subject to potentially conflicting rulings by two separate circuit courts ...," Goes wrote. "... all issues in this appeal have been fully and finally adjudicated on two separate occasions. There is no relief left to seek."

During oral arguments, Justice Joseph Albright told Chafin he could have gone to Grant County but he did not.

Chafin said Grant Circuit Court had no jurisdiction.

Justice Spike Maynard asked if all the cases should have been in Kanawha County.

Chafin said actions against state agencies must be filed in Kanawha County or where the harm occurred.

Maynard said, "Where did the harm occur?"

Chafin said, "Kanawha County."

Maynard said the Legislature was jealous about agencies being sued in 54 counties.

He said, "They were worried about home cooking. And there would be some home cooking."

Maynard asked Chafin if Grant County would have properly heard the case if Antolini had intervened there.

"I'm not sure I understand the question," Chafin replied

"Bury Mr. Rexrode here," Maynard said. "I don't care whether he belongs in Grant County or not."

Assistant attorney general William Valentino said Zakaib agreed with Frye.

"He said he looked at the record and there was nothing left to do," Valentino said.

Chafin said, "It all goes back to the improper Grant County jurisdiction."

The Justices took it under advisement.

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