When the only firefighter eligible for promotion to fire chief turns down the job, how does the city fill the vacancy?

Plain-English summary

The Weirton Fire Department had a chief vacancy, but the only captain eligible for promotion under the civil service rules turned the job down. Hancock County's prosecutor asked the AG how the Weirton Fire Civil Service Commission was supposed to proceed. Could it appoint someone outside the normal process? Could it limit who took the chief exam?

Attorney General Patrick Morrisey said no on both counts. The civil service provisions for paid firefighters in W. Va. Code Chapter 8, Article 15, Part IV are mandatory and unwaivable, and they recognize only four ways to fill a vacancy: promotion, appointment, reinstatement, or reduction in grade. Chief is the highest grade, so reduction is impossible. Reinstated firefighters must enter at the lowest grade, so reinstatement is impossible. Promotion was off the table because the eligible candidate had declined. That left appointment.

The appointment route under § 8-15-20 requires the Commission to certify the three highest-scoring candidates from competitive exams given in the last three years. Only one person had taken the chief exam in that window, the same captain who declined the promotion. So a new chief exam had to be administered.

The opinion's second holding was about who could take that new exam. Section 8-15-18 says competitive examinations "shall be open to all applicants who have fulfilled the preliminary requirements specified in the other civil service provisions of this article." The opinion read "shall" as mandatory and used the expressio unius canon: by listing certain disqualifications (drug or alcohol addiction, certain criminal conduct, prior dismissal for misconduct, failure to follow Commission rules under §§ 8-15-19, 20) and requirements (apprenticeship and certification under § 8-15A-2, age under § 8-15-17(d), optional medical exam), the Legislature foreclosed the Commission from inventing additional limits.

The closing section of the opinion addressed the practical reality of trying to run an exam during the early days of social distancing in spring 2020. Section 8-15-21 permits a provisional appointment for up to three months when "urgent reasons" exist. The AG said COVID-19 social distancing "almost certainly" qualified.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why couldn't Weirton just appoint anyone they wanted?
A: The civil service provisions for paid firefighters under § 8-15-11(b) are mandatory and cannot be waived. Section 8-15-22 prefers promotion when possible. When that fails, § 8-15-20 governs appointment by competitive exam. The opinion read these as a closed system with four enumerated paths to fill a vacancy, and only the appointment path was open in this scenario.

Q: Why did running a new exam matter? The same captain was the only person who had taken the prior one.
A: Section 8-15-20(a) requires the Commission to certify three candidates from exams in the previous three years. Only one person had taken the chief exam during that period, so the Commission could not legally certify three names. A new exam was the only way to expand the eligible pool.

Q: Could the Commission limit who took the new exam to only Weirton firefighters or only people with certain experience?
A: No. The opinion read § 8-15-18's "shall be open to all applicants who have fulfilled the preliminary requirements" as a mandatory rule. The Legislature spelled out specific requirements (apprenticeship, age, optional medical exam) and disqualifications (drug or alcohol addiction, certain criminal conduct, prior dismissal for misconduct, failure to follow Commission rules). The expressio unius canon ruled out additional restrictions invented by the Commission.

Q: What were the disqualifications under § 8-15-19?
A: Addiction to drugs or alcohol, "guilty of any crime, or of infamous or notoriously disgraceful conduct," prior "dismissal from public service for delinquency or misconduct," and failure to fully comply with Commission rules and regulations. These were the only grounds for keeping someone off the exam.

Q: How did the COVID-19 provisional-appointment workaround function?
A: Under § 8-15-21, when "urgent reasons" exist, the Commission could give the chief exam to a single qualified person of its choosing rather than holding a fully open exam. If that person passed, they could serve as provisional chief for up to three months. The AG said the social-distancing context of spring 2020 qualified as an urgent reason. This was a stopgap, not a substitute for the full open exam needed for a permanent appointment.

Q: Did the opinion break new ground?
A: It largely tracked a 1963 Office opinion, 50 W. Va. Op. Att'y Gen. 535, which had reached the same conclusion on similar facts. The 2020 opinion observed that statutory amendments over the prior 57 years had not changed the answer.

Background and statutory framework

Weirton's combination fire department, both paid and volunteer firefighters, was created by city council in 2002 and discussed in Weirton Heights Volunteer Fire Dep't, Inc. v. State Fire Comm'n, 218 W. Va. 668, 628 S.E.2d 98 (2005). Because chief is a paid position, it falls squarely within the Chapter 8, Article 15, Part IV civil service framework rather than the volunteer-firefighter rules.

The four ways to fill a paid-firefighter vacancy under § 8-15-11(b):

1. Promotion under § 8-15-22, which requires two years' continuous service in the next-lower grade.
2. Appointment under § 8-15-20, which requires the Commission to certify "the three individuals... who received the highest averages at preceding competitive examinations held under the civil service provisions of this article within a period of three years next preceding the date of the prospective appointment."
3. Reinstatement under § 8-15-17(f), which requires entering at the lowest grade in the department.
4. Reduction in grade, which by definition cannot fill the highest grade.

For Weirton's chief vacancy, only path 2 was open. The opinion's analysis of path 2 produced two requirements: a new exam, and an exam open to all qualifying applicants.

The provisional-appointment safety valve in § 8-15-21 lets the Commission appoint someone for up to three months when "urgent reasons" exist, by giving the exam to one person rather than the full pool. The opinion treated COVID-19 social distancing as a qualifying urgent reason, a contextual observation specific to spring 2020.

Citations and references

Statutes:
- W. Va. Code § 8-15-11 (paid firefighter civil service)
- W. Va. Code § 8-15-17(d), (f) (age; reinstatement)
- W. Va. Code § 8-15-18 (open competitive exams)
- W. Va. Code § 8-15-19 (disqualifications)
- W. Va. Code § 8-15-20 (appointment process)
- W. Va. Code § 8-15-21 (provisional appointments)
- W. Va. Code § 8-15-22 (promotion preference)
- W. Va. Code § 8-15A-2 (apprenticeship and certification)
- W. Va. Code § 5-3-2 (AG advice to prosecutors)

Cases and prior opinions:
- Weirton Heights Volunteer Fire Dep't, Inc. v. State Fire Comm'n, 218 W. Va. 668, 628 S.E.2d 98 (2005)
- Cawley v. Bd. of Trustees of Firemen's Pension or Relief Fund of City of Beckley, 138 W. Va. 571, 76 S.E.2d 683 (1953)
- Nelson v. W. Va. Pub. Employees Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982) (mandatory "shall")
- Christopher J. v. Ames, 241 W. Va. 822, 828 S.E.2d 884 (2019) (expressio unius canon)
- 50 W. Va. Op. Att'y Gen. 535 (1963) (same conclusion on similar facts)

Source

• Landing page: https://ago.wv.gov/media/17681/download?inline
• Original PDF: https://ago.wv.gov/media/17681/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
(304) 558-2021
Fax (304) 558-0140

Patrick Morrisey
Attorney General

April 2, 2020

The Honorable James W. Davis, Jr.
Hancock County Prosecuting Attorney
1114 Ridge Avenue
New Cumberland, WV 26047

Dear Prosecuting Attorney Davis:

You have asked for an Opinion of the Attorney General about the proper procedure for filling a vacancy in the Weirton Fire Department for the position of fire chief. This Opinion is being issued pursuant to West Virginia Code § 5-3-2, which provides that the Attorney General "may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office." To the extent this Opinion relies on facts, it is based solely on the factual assertions in your correspondence with the Office of the Attorney General and communications with the City of Weirton related to your request.

In 2002, the Weirton City Council "create[d] a single combination fire department, consisting of both paid and volunteer fire fighters." Weirton Heights Volunteer Fire Dep't, Inc. v. State Fire Comm'n, 218 W. Va. 668, 669, 628 S.E.2d 98, 99 (2005). The Weirton Fire Department currently has a vacancy for the chief position. Because this is a paid firefighter position, filling the vacancy is governed by West Virginia Code Chapter 8, Article 15, Part IV. See W. Va. Code § 8-15-11(a). The open fire chief position in Weirton must therefore be filled, "so far as practicable, by promotions from among individuals holding positions in the next lower grade in the department." Id. § 8-15-22. But "no individual shall be eligible for promotion from the lower grade to the next higher grade until such individual shall have completed at least two years of continuous service in the next lower grade." Id.

At the Weirton Fire Department there is only one captain, the grade below chief, who satisfies the time-in-service requirement. That captain, however, declined a promotion to fire chief. Your letter thus asks what alternate procedures the Weirton Fire Civil Service Commission ("Commission") must follow when filling the chief vacancy.

Your letter raises the following legal questions:

1. Must the Commission fill the position of chief through the appointment process outlined in West Virginia Code § 8-15-20?

2. If the chief position must be filled through the appointment process, which requires a competitive examination, who is eligible to take the examination?

We conclude that the Commission must fill the position of chief through the statutory appointment process and that the examination for the position must be open to all individuals who meet the statutory requirements for appointment.

Discussion

The civil service provisions governing paid firefighters are mandatory and cannot be waived. W. Va. Code § 8-15-11(b); see also Cawley v. Bd. of Trustees of Firemen's Pension or Relief Fund of City of Beckley, 138 W. Va. 571, 581-82, 76 S.E.2d 683, 689 (1953). These provisions provide that, whenever possible, a vacancy in a paid firefighting department must be filled by promotion. W. Va. Code § 8-15-22. But as explained above, the only individual eligible for promotion to chief has declined the promotion. There are only three other ways to fill a vacancy in a paid fire department: appointment, reinstatement, or reduction in grade. Id. § 8-15-11(b). As fire chief is the highest grade in the department, it cannot be filled by reduction in grade. Similarly, a reinstated firefighter must take the lowest grade in the department. See id. § 8-15-17(f). The only avenue to fill the vacancy is therefore appointment. Id. § 8-15-20(a); see also 50 W. Va. Op. Att'y Gen. 535, 536 (1963).

When filling a position by appointment, the Commission must certify the "three individuals ... who received the highest averages at preceding competitive examinations held under the civil service provisions of this article within a period of three years next preceding the date of the prospective appointment." W. Va. Code § 8-15-20(a). Here, over the past three years only one individual took the fire chief exam, the captain who declined promotion to chief.

There are no exceptions to the statutory framework for filling a vacancy like this, nor to the requirement that an individual is eligible for appointment only after passing the exam. Thus, and consistent with the conclusion of a 1963 Opinion issued by this Office, the only way to fill the fire chief vacancy under these circumstances is to administer a new fire chief exam to expand the pool of individuals qualified for appointment to the open role. See 50 W. Va. Op. Att'y Gen. at 537. The answer to your first question is thus yes; the Commission must fill the chief vacancy by appointing an individual under Section 8-15-20 after administering a new competitive exam.

Your second question asks who is eligible to sit for the new fire chief exam. The Code provides that "[a]ll competitive examinations shall be open to all applicants who have fulfilled the preliminary requirements specified in the other civil service provisions of this article." W. Va. Code § 8-15-18. There are two mandatory requirements for individuals who are not currently members of the Weirton Fire Department: The applicant must have completed an apprenticeship and certification program, id. § 8-15A-2, and must meet certain age requirements, id. § 8-15-17(d). In addition to these mandatory requirements, the Commission has discretion to allow only those individuals who have passed a medical examination to sit for the written test. Id. § 8-15-20(a). The Commission may also decline to administer the chief exam to those addicted to drugs or alcohol, those "guilty of any crime, or of infamous or notoriously disgraceful conduct," those previously "dismissed from public service for delinquency or misconduct," and those who fail to fully comply with the Commission's rules and regulations. Id. § 8-15-19.

The statute does not allow for additional restrictions on who may sit for the chief exam. Section 8-15-18 states that competitive examinations "shall be open to all applicants who have fulfilled the preliminary requirements specified in the other civil service provisions of this article." W. Va. Code § 8-15-18 (emphases added). The word "shall" is mandatory. See syl. pt. 1, Nelson v. W. Va. Pub. Employees Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982). And by emphasizing that the exam shall be available to all applicants who meet other statutory requirements, the Legislature underscored that it did not give individual appointing bodies discretion to set additional requirements. Further, the expressio unius est exclusio alterius canon of interpretation, or "the express mention of one thing implies the exclusion of another," confirms that by specifying certain requirements the Legislature did not intend for the Commission to add more. See syl. pt. 4, Christopher J. v. Ames, 241 W. Va. 822, 828 S.E.2d 884 (2019) (citation omitted). As such, the answer to your second question is that all individuals who satisfy the statutory requirements to sit for a competitive examination may take the fire chief exam.

Our conclusions on these two questions are consistent with the 1963 Opinion of this Office. In that situation, as here, there was no one eligible for promotion nor had anyone passed the requisite exam during the preceding three years. This Office advised that the relevant position must be filled by competitive examination open to all who met the statutory requirements. 50 W. Va. Op. Att'y Gen. at 538-39. Although some of the statutes have changed over the past 57 years, none of those amendments alter our answers when faced with a similar situation here.

Finally, this analysis describes the procedure for permanently filling the fire chief vacancy. We recognize that because our State and Nation are engaging in "social distancing" to help stop the spread of severe acute respiratory syndrome coronavirus 2 ("COVID-19"), it may be difficult to quickly administer a chief exam under Section 8-15-20. The City of Weirton may thus consider appointing a provisional chief because the COVID-19 situation almost certainly constitutes an "urgent reason[]" under the statute. See W. Va. Code § 8-15-21. Under this Code section, the appointing entity may allow one qualified individual of its choice to sit for the competitive chief exam (rather than administering it to all interested and qualified individuals), and if that individual passes the exam, he or she may be appointed provisional chief. Id. Any individual appointed under this provision may serve up to three months. See id.

In sum, the Weirton Fire Civil Service Commission must fill the position of fire chief through the appointment process outlined in West Virginia Code § 8-15-20. The Commission may appoint a provisional chief for up to three months without making the fire chief examination generally open, but must give all individuals who meet the statutory requirements the opportunity to sit for the exam before making a permanent appointment.

Sincerely,

Patrick Morrisey
Attorney General

Lindsay See
Solicitor General

John M. Masslon II
Assistant Solicitor General