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Case Bulletin – West Virginia Supreme Court Addresses Use of Writ of Prohibition

The West Virginia Supreme Court of Appeals in State of West Virginia ex rel., West Virginia Consolidated Public Retirement Board v. Whalen, No. 14-1250 (April 13, 2015) (Jan. 2015 Term), held that in cases where it is claimed that the lower court exceeded its legitimate powers, a writ of prohibition will issue only in clear cases, where the lower tribunal is proceeding without, or in excess of, jurisdiction.

 

Mr. Whalen entered into a four-year employment contract with Mason County Board of Education to serve as superintendent of schools.  After three years, Whalen and the Board of Education entered into a settlement whereby Whalen agreed to forego the final year of his contract in exchange for a lump sum payment of $60,000.00.  Whalen then retired.  Subsequently, the Retirement Board advised Whalen that the $60,000.00 payment would not be considered “salary” for purposes of calculating his retirement annuity benefit, as the buyout “was not full compensation for services rendered”.

 

Whalen filed an administrative appeal contending that the $60,000.00 be considered “salary” when calculating his retirement annuity benefit.  Following an administrative hearing, the Retirement Board adopted the recommended decision of the hearing officer that the $60,000.00 should not be included in the calculation because it was not salary but agreed-upon damages for anticipated breach of contract.  The Retirement Board’s Final Order was signed thereafter.  Through counsel, Whelan was subsequently advised that the Retirement Board’s Order was final.  The Board thereafter was unable to locate a signed copy of the Final Order in response to a request from Whalen’s counsel for “proper verification of a final order”.

 

Whalen subsequently filed a civil action in the Circuit Court of Mason County naming the Mason County of Board of Education and the Retirement Board as defendants.  Whalen sought the same relief he sought in the administrative action, namely, that the $60,000.00 be considered salary when calculating his retirement annuity benefit.  The Retirement Board filed a Motion to Dismiss alleging that Whalen sued the wrong party and that his Complaint was untimely filed.  The Retirement Board claimed that Whalen had never been a member of the West Virginia Public Employees Retirement System, but rather, that he was a member of the West Virginia Teachers Retirement System.  The 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 Supreme Court of Appeals, and a Show Cause Order was issued.  The Retirement Board asserted that the lower court exceeded its legitimate authority “by accepting an untimely filed petition for administrative review which was filed as a civil action”.  The parties agreed that the civil complaint was an appeal of the administrative decision issued by the Board, so the Court addressed the issue of whether Whelan’s Petition for Review of the administrative decision was timely filed with the Circuit Court.  The Court held that the plain language of the State Administrative Procedure Act, W.Va. Code § 29A-5-4(b) states that an administrative appeal must be filed within 30 days after the party received notice of the final decision or order of the agency.  The Court held that since Whelan did receive notice, his appeal was time-barred, and therefore, since Whelan did not file a timely appeal of the Board’s determination, the lower court’s order granting his Motion for Summary Judgment and denying the Board’s Motion for Summary Judgment and Motion to Dismiss was clearly erroneous as a matter of law.  For these reasons, the Court held that the Board was entitled to a writ of prohibition to prohibit enforcement of the lower court’s order granting Whelan’s Motion for Summary Judgment and denying the Board’s Motion for Summary Judgment and Motion to Dismiss.