After the Nicholas County emergency services director resigned during a flood emergency, did the County Commission have to repost the job and run a fresh hiring process, or could it just pick from the existing pool of resumes?

Plain-English summary

In June 2016, devastating floods struck Nicholas County, West Virginia. The newly-hired Office of Emergency Services director resigned on July 7, 2016, while still in his ninety-day probationary period. The County Commission needed to fill the job fast. The prosecutor asked the AG: must the Commission run a fresh "formal process" of posting the job and collecting resumes, or could it just pick from the resumes it already had?

The AG's answer had two layers.

State law layer. W. Va. Code § 15-5-8 provides that a local OES director "shall be appointed by the executive officer or governing body of the political subdivision to serve at the will and pleasure of the executive officer or governing body." That is at-will employment. Cases interpreting "serve at the will and pleasure" language consistently give the appointing authority broad discretion in hiring and firing (Marple (2015) on state board appointees; Macri (1996) on assistant prosecutors; Williams v. Brown (1993) on assistant attorneys general). State law thus did not require the Commission to follow any particular hiring procedure.

Commission's own procedures layer. The Supreme Court of Appeals has held that "a governmental agency must abide by its own stated procedures even though it is under no constitutional obligation to provide the procedures in the first place and even though it can change the procedures at any time." Williams v. Precision Coil, Inc. (1995). Trimboli v. Bd. of Educ. of Wayne Cnty. (1979) is the canonical example: even where the underlying statute let a county school board fire a federal-programs director at will, the board had to comply with its own pre-existing procedures because "the procedure was generous beyond statutory or constitutional requirements."

So if the Nicholas County Commission had formally adopted hiring procedures requiring reposting and a fresh resume collection, it had to follow them. But the AG flagged several open factual questions: whether the procedures were formally adopted or just informal custom; whether the procedures had emergency exceptions; whether the procedures distinguished between permanent and temporary acting directors; and whether the Commission could repeal the procedures (subject to ordinary requirements like the Open Meetings Act, Daugherty v. Ellis (1956)).

The opinion expressed sympathy for the Commission's flood-emergency situation and offered the AG's analysis as guidance for the Commission to make a fast, defensible hiring decision.

Currency note

This opinion was issued in 2016. 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.

The OES statute and case law on agency-procedure compliance have continued to develop. Anyone working a present-day OES hiring question should pull current W. Va. Code § 15-5-8 and current case law on agency-procedure compliance, plus any locally-adopted county hiring procedures.

Common questions

Q: Could the Commission have just hired anyone, even outside the existing resume pool?
A: At the state-law level, yes. § 15-5-8 makes the OES director at-will, and at-will appointments do not require open competitive hiring under state law. The Commission's own procedures, if any, might constrain that discretion.

Q: What does "must follow its own procedures" really mean?
A: From Williams v. Precision Coil: an agency that adopts procedures, even procedures it was not legally required to adopt, must follow them while they are in effect. The remedy for failing to follow them is typically reinstatement or remand for a procedurally-correct decision (Trimboli; Powell v. Brown).

Q: Could the Commission have just repealed its hiring procedures and then hired immediately?
A: Probably yes, subject to Open Meetings Act compliance. The Commission can change its procedures, but only through legitimate legislative action (a public meeting, with quorum, on the record). Daugherty v. Ellis, syl. pt. 3: "A county court [commission] can exercise its powers only as a court, while in legal session with a quorum present." Repealing in a hallway conversation would not work.

Q: What about appointing a temporary acting director?
A: The opinion suggests this might be a way around procedures that only address permanent hires: "If the procedures speak only to the process for hiring a permanent OES director, it may be that they do not preclude the appointment of a temporary, acting director." This reading depends on the actual text of the procedures.

Q: Could the AG have offered a more definitive answer?
A: Not without the actual text of the County's hiring procedures. AG opinions rely on the factual assertions in the request letter; the prosecutor's letter described the procedures as "formal" but did not include them. Without seeing them, the AG could only sketch the framework.

Q: Does the same analysis apply to other at-will county appointments?
A: Yes. The two-layer framework (state law + agency's own procedures) applies whenever the underlying statute creates at-will service and the appointing authority has adopted its own procedures.

Q: Does this give an OES director any tenure protection at all?
A: At the state-law level, no. § 15-5-8 explicitly contemplates at-will service. Procedural protections, if any, come from procedures the Commission itself adopts (and chooses to keep in place).

Background and statutory framework

The OES statute. W. Va. Code § 15-5-8 governs local organization for emergency services. The local OES director "shall be appointed by the executive officer or governing body of the political subdivision to serve at the will and pleasure of the executive officer or governing body." Elsewhere in chapter 15, article 5, the statute creates the broader emergency-services framework, but for hiring procedures, § 15-5-8 says all that state law says.

At-will service across statutes. W. Va. Bd. of Educ. v. Marple, 236 W. Va. 654 (2015) (state board has wide discretion over its appointee who "serves at the will and pleasure of the state board"); State v. Macri, 199 W. Va. 696 (1996) (prosecutor controls assistant prosecutor who "shall serve at the will and pleasure of [the prosecutor]"); Williams v. Brown, 190 W. Va. 202 (1993) ("serve at the pleasure" gives "unfettered control over hiring and firing").

Agency must follow its own procedures. Williams v. Precision Coil, Inc., 194 W. Va. 52 (1995): "It is . . . a basic notion of due process of law that a governmental agency must abide by its own stated procedures even though it is under no constitutional obligation to provide the procedures in the first place and even though it can change the procedures at any time." Trimboli v. Bd. of Educ. of Wayne Cnty., 163 W. Va. 1 (1979) (county school board had to follow its own removal procedures even though state law made the position discretionary). Powell v. Brown, 160 W. Va. 723 (1977) (emphasizing "notions of fair play and due process").

Open Meetings constraint on commission procedure. Daugherty v. Ellis, 142 W. Va. 340 (1956), syl. pt. 3: "A county court [commission] can exercise its powers only as a court, while in legal session with a quorum present, and it must follow that procedure and enter its proceedings of record to make its action valid and binding."

Citations

• W. Va. Code §§ 5-3-2; 15-5-8
• W. Va. Bd. of Educ. v. Marple, 236 W. Va. 654 (2015)
• State v. Macri, 199 W. Va. 696 (1996)
• Williams v. Brown, 190 W. Va. 202 (1993)
• Williams v. Precision Coil, Inc., 194 W. Va. 52 (1995)
• Trimboli v. Bd. of Educ. of Wayne Cnty., 163 W. Va. 1 (1979)
• Powell v. Brown, 160 W. Va. 723 (1977)
• Daugherty v. Ellis, 142 W. Va. 340 (1956)

Source

• Landing page: https://ago.wv.gov/media/17916/download?inline
• Original PDF: https://ago.wv.gov/media/17916/download?inline

Original opinion text

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

July 12, 2016

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

Honorable Samuel R. White
Prosecuting Attorney
Office of the Nicholas County Prosecuting Attorney
203 Courthouse Annex
511 Church Street
Summersville, West Virginia 26651

Dear Prosecutor White:

You have asked for an Opinion of the Attorney General regarding the process for filling a vacancy for the position of director of the local Office of Emergency Services ("OES"). 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 upon the factual assertions set forth in your correspondence with the Office of the Attorney General.

According to your letter, the Nicholas County Commission ("Commission") recently hired a director of the Nicholas County OES, who has now resigned. You explain that the Commission went through a "formal process" of posting an employment vacancy and soliciting resumes for the position of director of the Nicholas County OES. The Commission received a number of resume submissions, from which it selected an individual to hire as director. The individual accepted the job and began his duties, subject to a ninety-day "probationary period." During the new director's "probationary period," flood waters destroyed many parts of Nicholas County. On July 7, 2016, the individual opted to resign from the position, while still within the ninety-day "probationary period." Your letter does not explain the origin of the "formal process" or the "probationary period," and does not include or reference any specific laws or available Commission procedures.

Your letter raises the following legal question:

Must the Nicholas County Commission go through the formal process of reposting and recollecting resumes for the position of director of OES, or may the Commission appoint a new director of OES from the pool of previously collected resumes?

Under the facts you provided, we believe that nothing in the state code requires the Commission to follow a particular process in hiring a replacement director. West Virginia Code § 15-5-8 governs local organization for emergency services and instructs only that a local OES "shall be appointed by the executive officer or governing body of the political subdivision to serve at the will and pleasure of the executive officer or governing body . . . ." W. Va. Code § 15-5-8. By designating the director an "at will" employee of the Commission, the statute gives the Commission wide discretion in appointing (and discharging) a director. See, e.g., W. Virginia Bd. of Educ. v. Marple, 236 W. Va. 654, 783 S.E.2d 75, 84 (2015) (state board has wide discretion in deciding whether to retain its appointee who "serves at the will and pleasure of the state board"); State v. Macri, 199 W. Va. 696, 704-05, 487 S.E.2d 891, 899-900 (1996) (prosecutor has wide authority to hire and control the activities of an assistant prosecutor who "shall serve at the will and pleasure of [the prosecutor]"); Williams v. Brown, 190 W. Va. 202, 205, 437 S.E.2d 775, 778 (1993) ("The use of the phrase 'serve at the pleasure of the attorney general' . . . indicates the intent of the Legislature to give the Attorney General unfettered control over the hiring and firing of assistant attorneys general.").

We do note, however, the instruction by the West Virginia Supreme Court of Appeals that "[i]t is . . . a basic notion of due process of law that a governmental agency must abide by its own stated procedures even though it is under no constitutional obligation to provide the procedures in the first place and even though it can change the procedures at any time." Williams v. Precision Coil, Inc., 194 W. Va. 52, 65, 459 S.E.2d 329, 342 (1995). For example, in Trimboli v. Board of Education of Wayne County, 163 W. Va. 1, 254 S.E.2d 561 (1979), a county board of education removed the plaintiff, a director of federal programs for the county schools, from his position. West Virginia Code § 18-5-32 provided that the period of employment for directors such as the plaintiff was at the discretion of the board. See id. at 8, 254 S.E.2d at 565 ("[O]ne would conclude from it that [the plaintiff] served at the board's pleasure."). Nevertheless, the Court required the county board to comply with procedures set forth in pre-existing rules, even though "the procedure was generous beyond statutory or constitutional requirements." Id. at 9, 254 S.E.2d at 565. In short, "so long as the procedures are in place, the agency must follow them." Williams v. Precision Coil, Inc., 194 W. Va. 52, 65, 459 S.E.2d 329, 342 (1995); see also Powell v. Brown, 160 W. Va. 723, 728, 238 S.E.2d 220, 222 (1977) (emphasizing "notions of fair play and due process").

In sum, nothing in the state code dictates the procedures under which the Commission may hire a new OES director, but it may wish to follow any formal procedures that it previously adopted. Whether it must follow those procedures depends on facts we have not been provided. For instance, we do not know whether the procedures you reference were formally adopted by the Commission or are simply an informal, non-binding custom and practice. We do not know whether the procedures could be read to permit exceptions for emergencies or other special circumstances. If the procedures speak only to the process for hiring a permanent OES director, it may be that they do not preclude the appointment of a temporary, acting director. And it may also be that the Commission could simply repeal the procedures, recognizing that the Commission must ordinarily comply with certain requirements, such as the Open Government Proceedings Act, for conducting its business. See, e.g., Daugherty v. Ellis, Syl. Pt. 3, 142 W. Va. 340, 97 S.E.2d 33 (1956) ("A county court [commission] can exercise its powers only as a court, while in legal session with a quorum present, and it must follow that procedure and enter its proceedings of record to make its action valid and binding.").

We understand that Nicholas County is facing an emergency situation and that there is great importance in filling the director of OES position quickly. We hope that this letter will assist the Commission in doing so.

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

Katlyn M. Miller
Assistant Attorney General