On a West Virginia fire chief appointment exam, do veterans get five extra points, and can the city add bonus points for years of service in the local fire department?

Plain-English summary

This is the second of the AG's Weirton fire-chief opinions in 2020. The first (April 2, 2020, media id 17681) had told the Weirton Fire Civil Service Commission that the chief vacancy had to be filled by appointment after a new exam open to all qualifying candidates. The second came back in July with two scoring questions: does the five-point veteran preference apply, and can the Commission tack on experience points for years served in the Weirton department?

On veterans: yes. W. Va. Code § 6-13-1 says that for civil service positions, "a preference of five points in addition to the regular numerical score received on [the] examination shall be awarded to all veterans having qualified for appointment by making a minimum passing grade." The AG read "shall" as mandatory. Every veteran who passes gets the bump, including veterans already on the Weirton force. The opinion specifically rejected Weirton's "double-counting" concern, saying the statute speaks of "all" veterans and reading in an exception for already-employed members would create unequal treatment.

On experience points: no, with a caveat. Meek v. Pugh, 186 W. Va. 609 (1991), held that under § 8-15-20 experience cannot be added to the exam score itself. The relevant statutory text had not changed since Meek, so its holding remained binding. But experience could still be a factor at the next stage, when the appointing authority chose among the three top scorers. The opinion also flagged a 2019 police-civil-service decision, Burner v. Martinsburg Police Civil Service Commission, in which the Supreme Court of Appeals approved an education-points rule promulgated by a police commission. The AG suggested that if the question came back, the Court might extend Burner to fire civil service and bless commission-rule-based experience points, but until that happens, Meek controls.

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 did the veteran preference apply here?
A: Section 6-13-1 imposes the preference on civil service positions filled by appointment, not promotion. Weirton's fire chief vacancy was being filled by appointment under § 8-15-20 (because no one was eligible for promotion under § 8-15-22), so the preference applied. Different rules govern when a position is filled by promotion, as the Marascio Grievance Board decision noted.

Q: Could the Commission cap how many veteran points it added across all candidates?
A: No. The opinion read § 6-13-1 to mandate five points for every veteran who scored at or above the passing grade. There was no statutory ceiling.

Q: Did the opinion address whether veterans hired during a prior cycle should get points again?
A: Yes. Weirton was worried about "double-awarding" preference points to veterans who had already gotten the bump when they were first hired. The AG said the statute draws no such line: "all" veterans who pass receive the five-point boost, and reading in an exception for current employees would create less favorable treatment for veterans already in the department compared to outside applicants.

Q: Why couldn't experience points be added to the exam score?
A: Because in Meek v. Pugh, the West Virginia Supreme Court of Appeals contrasted appointment under § 8-15-20 (where experience is not a factor in determining the top three) with promotion under § 8-15-22 (where it is, by statute). The text of § 8-15-20 did not list experience as a scoring factor, so the Commission could not add it.

Q: Could experience matter at all?
A: Yes, just at a different stage. After the top three scorers were identified using exam scores plus the veteran preference, the appointing authority could weigh "any lawful factors," including experience, when choosing among them. Legg v. Smith footnote 5 supports that.

Q: What's the Burner angle?
A: In Burner v. Martinsburg Police Civil Service Commission (2019), the Supreme Court of Appeals upheld a police commission rule that added education points to officer appointment scores. The Court read the police civil service act not to "exclude all other selection requirements." The AG noted the Court typically treats Article 14 (police) and Article 15 (fire) provisions as analogous, and suggested that if the experience-points question came back the Court might allow a Commission-rule-based experience bonus on the fire side too. The opinion was careful: this was a flag, not a holding. Meek still controlled at the time.

Background and statutory framework

The setting was the same as the April 2 opinion: a Weirton chief vacancy with one captain who was eligible for promotion but had declined. Filling by appointment under § 8-15-20 meant administering a new open chief exam.

Section 6-13-1 provides the veteran preference that applies across civil service positions filled by appointment. The opinion called the language plain and unambiguous: a passing veteran "shall be awarded" five extra points.

Section 8-15-20 governs fire-chief appointment. The statute identifies "the three individuals on the eligible list who received the highest averages at preceding competitive examinations" as the pool from which the appointment must be made. It does not list experience as a scoring factor.

Section 8-15-22, the promotion provision, does include experience. Meek v. Pugh leaned on the contrast: "only two factors are used under Section 8-15-22 to determine who receives a promotion, the score on the promotion exam and experience points." Because § 8-15-20 omitted experience, Meek read the omission as deliberate.

The 2019 Burner opinion in the police context introduced new flexibility for civil service commissions to adopt their own discretionary scoring factors by rule, as long as the rule is "not inconsistent with the express provisions of the Act" and not based on "personal or political whim." That move loosened the strict-list reading that Meek had embraced for the fire side, but only by analogy: no fire-side decision had yet adopted the Burner logic.

Citations and references

Statutes:
- W. Va. Code § 5-3-2 (AG advice to prosecutors)
- W. Va. Code § 6-13-1 (veteran preference, civil service appointments)
- W. Va. Code § 8-15-11 (paid firefighter civil service mandatory)
- W. Va. Code § 8-15-20 (firefighter appointment process)
- W. Va. Code § 8-15-22 (firefighter promotion preference)

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)
- Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975)
- Appalachian Power Co. v. State Tax Dep't, 195 W. Va. 573, 466 S.E.2d 424 (1995)
- State v. A.D., 242 W. Va. 536, 836 S.E.2d 503 (2019)
- Marascio v. Dep't of Transp., Div. of Hwys., 2007 WL 960121 (W. Va. Ed. & State Emp. Grievance Bd. Feb. 16, 2007)
- 49 W. Va. Op. Att'y Gen. 264 (1961)
- Meek v. Pugh, 186 W. Va. 609, 413 S.E.2d 666 (1991)
- Legg v. Smith, 181 W. Va. 796, 384 S.E.2d 833 (1989)
- Burner v. Martinsburg Police Civil Serv. Comm'n, 241 W. Va. 677, 827 S.E.2d 622 (2019)
- Morgan v. City of Wheeling, 205 W. Va. 34, 516 S.E.2d 48 (1999)

Source

• Landing page: https://ago.wv.gov/media/17691/download?inline
• Original PDF: https://ago.wv.gov/media/17691/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General

(304) 558-2021
Fax (304) 558-0140

July 9, 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 scoring the Weirton Fire Department fire chief examination. 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." When this Opinion relies on facts, it depends 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. You previously asked whether the Weirton Fire Civil Service Commission ("Commission") must fill the vacancy by appointment instead, and if so, who may take the qualifying examination. We advised that the Commission must fill the position of fire chief through the appointment process and that anyone who meets the statutory requirements may take the exam. Opinion of the Attorney General on the Procedure for Filling a Fire Chief Vacancy, 2020 WL 1855825, 1, 3 (W. Va. A.G. Apr. 2, 2020). In this second request you ask additional questions related to scoring the exam.

Your current request thus raises two legal questions:

1. Must the Commission add five points to passing scores of veterans who take the fire chief exam?

2. May the Commission add one point to passing scores for each year an applicant has served in the Weirton Fire Department?

We conclude that the five-point veteran preference applies to all positions filled by appointment, and therefore must be added to all veterans' passing scores on this exam. Experience points, by contrast, may not be added under current precedent, but are an appropriate factor to consider when choosing among the applicants with the three highest scores.

Discussion

Question 1: Veteran-Preference Points Apply To Fire Chief Appointments

As explained in our previous Opinion, under these circumstances the only statutory option to fill the vacant fire chief position is appointment. See W. Va. Code § 8-15-11(b) (listing options of promotion, appointment, reinstatement, or reduction in grade). The appointment process, in turn, requires choosing the next fire chief from "the three individuals on the eligible list who received the highest averages at preceding competitive [fire chief] examinations." Id. § 8-15-20(a). And for positions like fire chief that are "filled under civil service," "a preference of five points in addition to the regular numerical score received on [the] examination shall be awarded to all veterans having qualified for appointment by making a minimum passing grade." Id. § 6-13-1. Your request asks whether the Commission is required to add five points to the passing scores of veterans under this Code provision when determining the three highest scores.

Whether veteran-preference points must be added to passing scores for the fire chief exam is a question of statutory interpretation. "The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975). And the best evidence of legislative intent is the statutory text. If that text, "given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed." Appalachian Power Co. v. State Tax Dep't, 195 W. Va. 573, 587, 466 S.E.2d 424, 438 (1995).

Here the language of Section 6-13-1 is plain and unambiguous: Assuming that a veteran sitting for the exam "mak[es] a minimum passing grade," five veteran-preference points "shall be awarded" and added to that base score. The word "shall" is mandatory. Syl. pt. 3, State v. A.D., 242 W. Va. 536, 836 S.E.2d 503 (2019). Thus, five points must be added to the scores of all veterans that receive a passing score for purposes of determining the three individuals eligible for appointment.

There is little precedent interpreting this provision, but an Education and State Employees Grievance Board decision supports this conclusion: The Board held that veteran-preference points must be added when a position is filled by appointment and noted different rules apply when a position is filled by promotion. Marascio v. Dep't of Transp., Div. of Hwys., 2007 WL 960121, 3 (Feb. 16, 2007); see also* 49 W. Va. Op. Att'y Gen. 264, 265 (1961) (explaining that the Legislature does not use the terms "appointment" and "promotion" interchangeably).

The City of Weirton's concern about potentially "double-awarding" preference points to individuals who received veteran preference when hired into the Weirton Fire Department does not change the statutory analysis. The statute is clear that "all" veterans who pass the exam are entitled to the five-point bump. W. Va. Code § 6-13-1. Further, as we explained in our April 2 Opinion, the fire chief exam is open to anyone who satisfies the statutory requirements, even those who are not current members of the Weirton Fire Department. There is no textual support for awarding veteran-preference points to those applying to the Weirton Fire Department for the first time but not current members of the department, and reading an implicit distinction into the statute would result in less favorable treatment for currently employed veterans. The veteran-preference points must therefore be awarded to all veterans who receive passing scores on the fire chief exam.

Question 2: Experience Points May Not Be Added To Exam Scores Under Current Precedent

Your second question asks whether one point may be added to passing exam scores for every year the applicant has served with the Weirton Fire Department. Under current precedent, the answer is no. Nevertheless, a recent Supreme Court of Appeals decision in the analogous police officer appointment contexts suggests that the Court may be open to revisiting this precedent in the future.

Almost 30 years ago, the Court examined the role of experience points in Section 8-15-20. Meek v. Pugh, 186 W. Va. 609, 611, 413 S.E.2d 666, 668 (1991). In Meek, the Court contrasted appointment under Section 8-15-20 with promotion under Section 8-15-22. It explained that only two factors are used under Section 8-15-22 to determine who receives a promotion, the score on the promotion exam and experience points. Id. at 611, 413 S.E.2d at 668. The Court then explained that under Section 8-15-20, experience may not be considered when deciding who is eligible for appointment. See id.

The relevant language of the two statutes has not changed since Meek. Section 8-15-20 still does not reference experience. Rather, as noted above, the exam score, after being adjusted as required by other Code provisions, determines the three individuals from whom the final appointment may be made. To be sure, the appointing authority may consider any lawful factors at that stage when choosing from the pool of three, including experience. See Legg v. Smith, 181 W. Va. 796, 799 n.5, 384 S.E.2d 833, 836 n.5 (1989). But Meek's holding that experience points may not be added to the exam scores themselves remains good law.

We note that if this question were presented to the Court again now, however, it might reach a different result. Last year, the Court expanded the power of police civil service commissions to issue regulations on factors that may be considered when appointing or promoting police officers. The Court held "that the provisions of the police civil service act" do not "exclude all other selection requirements for police officers." Burner v. Martinsburg Police Civil Serv. Comm'n, 241 W. Va. 677, 683, 827 S.E.2d 622, 628 (2019) (quoting Morgan v. City of Wheeling, 205 W. Va. 34, 39-40, 516 S.E.2d 48, 53-54 (1999)). The Court thus blessed awarding education points as "a discretionary factor developed by the Commission pursuant to the authority bestowed upon it by the Police Civil Service Act." Id.

The Court frequently analogizes the provisions of Article 14 of Chapter 8 at issue in Burner with those relevant here of Article 15 of Chapter 8. See Meek, 186 W. Va. at 612, 413 S.E.2d at 669 ("The statutes governing employment and promotion of paid fire departments are similar to the statutes governing paid police departments."). And just as police civil service commissions may promulgate rules adopting discretionary factors that are "not inconsistent with the express provisions of the Act" nor based on "personal or political whim," Burner, 241 W. Va. at 683, 827 S.E.2d at 628 (emphasis removed; citation omitted), the Court might conclude that adding experience points to firefighter appointment exams pursuant to a lawfully issued Commission rule would not be inconsistent with the express provisions of Article 15 nor based on mere whim. Thus, if the Court were presented with the issue you raise (and determined that principles of stare decisis allow reconsideration), it might well extend its decision in Burner to conclude that the factors enumerated in Section 8-15-20 are not exclusive. To date, however, the Court has not approved adding experience points to firefighter appointment exam scores.

Sincerely,

Patrick Morrisey
Attorney General

Lindsay See
Solicitor General

John M. Masslon II
Assistant Solicitor General