WEST VIRGINIA RECORD

CHARLESTON - Grant Circuit Judge Andrew Frye stepped out of bounds when he approved a pay raise for Division of Natural Resources conservation officer Stephen Rexrode, the West Virginia Supreme Court of Appeals has ruled.

All five Justices agreed on April 10 that Frye lacked jurisdiction because Rexrode had no right to bring the claim.

The Justices did their best to untangle a salary squabble that prompted eight officers to file three suits in two courts.

Although the Justices found that Frye was wrong, they did not reverse his order. They reversed Kanawha Circuit Judge Paul Zakaib for ruling that Frye was right. They remanded the case to Zakaib.

The decision prolongs a process that has dragged on for five years.

In 2002, conservation officers Stephen Antolini, Roger McClanahan and Mickey Sylvester filed a grievance seeking raises after Rexrode and five other officers received raises of $34 a week.

Antolini worked in Mercer County, McClanahan in Fayette County and Sylvester in Summers County.

DNR managers denied the grievance, arguing that the six earned merit raises that Antolini, McClanahan and Sylvester did not earn.

The three took the grievance to a hearing before Administrative Law Judge Paul Marteney.

In 2003, Marteney pulled a surprise. Instead of granting raises to the three who did not receive them, he rescinded the raises of the six who did receive them.

Rexrode applied for a temporary injunction in Grant County, where he resided, to preserve his raise.

Frye issued the temporary injunction, ordering the division to honor Rexrode's raise and the raises for the other five.

That did not satisfy four of the other five. They sought injunctions to preserve their raises in Kanawha County.

Antolini, McClanahan and Sylvester then tried again to win raises. They appealed Marteney's decision in Kanawha County.

As the Justices noted in their opinion, "Thus, the same administrative law judge decision was appealed in three separate actions in two different circuit courts."

In 2004, Frye vacated Marteney's decision. He declared the raises proper and legal.

In 2005, Zakaib granted summary judgment preserving the raises of the four who sued in his court.

Zakaib dismissed the appeal of Antolini, McClanahan and Sylvester, ruling that Frye had already decided against them.

Zakaib applied a doctrine of "res judicata," meaning a matter adjudged.

Antolini, McClanahan and Sylvester tried again to win raises. Their attorney, Andrew Chafin of Charleston, appealed to the Supreme Court of Appeals.

The Justices heard oral arguments Feb. 14.

In their unsigned opinion they stated that in order to apply "res judicata," there must have been a final adjudication in a prior action by a court having jurisdiction of the proceedings.

They wrote that an appeal from a grievance can only be filed by a party to the grievance, either in Kanawha County or the county where the grievance occurred.

"It is undisputed that Mr. Rexrode was not a party to the original grievance proceeding and that no part of the grievance occurred in Grant County," they wrote. "Mr. Rexrode did not have the right to file an appeal in Grant County. Moreover, the Circuit Court of Grant County did not have jurisdiction to hear the appeal.

"Simply put, there has not been a final adjudication on the merits by a court having jurisdiction of the proceedings."