Was Saturday, August 28, 2010, the special primary election to fill Senator Byrd's Senate seat, a legal holiday for West Virginia state employees, and did employees scheduled to work get paid time off to vote?

Plain-English summary

Senator Robert C. Byrd's death created a U.S. Senate vacancy that the West Virginia Legislature decided to fill with a special primary on Saturday, August 28, 2010, and a special general election that fall (under H.B. 201, codified at W. Va. Code § 30-10-4a). Governor Manchin asked AG McGraw three administrative questions about the Saturday primary day:

1. Was it a legal holiday for state employees? Yes. W. Va. Code § 2-2-1(a)(13) declares any day on which a "general, primary or special election is held" a holiday throughout the state. The statute is unambiguous and applies on its own terms.
2. Did the holiday transfer to the preceding Friday because August 28 was a Saturday? No. The general weekend-transfer rule in § 2-2-1(b) (Saturday holidays move to Friday, Sunday holidays move to Monday) expressly does not apply to subdivision (13) of subsection (a), the election-day provision. The election-day holiday stays on the election day.
3. Did employees scheduled to work that Saturday get a holiday plus voting leave? State employees scheduled to work and working on August 28 were entitled to: (a) the legal holiday itself (a comparable day off, addressed in the AG's follow-up opinion of August 25, 2010), and (b) up to three hours of paid time off to vote under W. Va. C.S.R. § 143-1-14.1(f), if they submitted a written request to their appointing authority at least three working days before the election and they had less than three hours of free time during open polling hours.

The AG noted that the Division of Personnel's holiday rule, W. Va. C.S.R. § 143-1-14, did not include the statutory carve-out for election days from the weekend-transfer rule. That omission did not matter, because under Appalachian Power Co. v. State Tax Department and Harrison v. Commissioner, a legislative rule cannot override the clear text of the statute it implements. The statute controls.

Currency note

This opinion was issued in 2010. 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: Are election days always holidays in West Virginia?
A: According to the statute discussed in this opinion, yes. W. Va. Code § 2-2-1(a)(13) names any day of a general, primary, or special election a legal holiday "throughout the state, a political subdivision of the state, a district or an incorporated city, town or village in which the election is conducted." The election day creates the holiday automatically.

Q: Does this mean every state office must close on every primary day?
A: This opinion focuses on the holiday status and on rights of employees scheduled to work. Whether an agency stays open for business is partly a function of the holiday rules, partly a function of operational needs (essential services, emergency operations, election-administration roles). The opinion did not address closure requirements directly.

Q: How does the three-hour voting leave work?
A: Under W. Va. C.S.R. § 143-1-14.1(f), an employee scheduled to work on an election day who has less than three hours of time off work during polling hours can submit a written request to the appointing authority at least three working days before the election. The appointing authority must then grant up to three hours of paid time off to vote, scheduled to avoid disrupting essential services.

Q: What is an "appointing authority"?
A: Under W. Va. Code § 29-6-2(c) and W. Va. C.S.R. § 143-1-3.8, it is the executive or administrative head of an agency authorized by statute to appoint employees in the classified or classified-exempt service. The agency head can delegate specific powers in writing to staff who meet the rule's definition of employee.

Q: Does the holiday apply to private-sector employees?
A: This opinion addresses state employees only. Private-sector employees' rights to time off to vote in West Virginia are governed by separate provisions and are not the subject of this opinion.

Background and statutory framework

The Saturday primary date was an unusual feature of the legislative response to Senator Byrd's death. Saturday elections are uncommon in West Virginia, and a Saturday creates the question of whether the holiday transfers to a weekday under the general weekend-transfer rule.

W. Va. Code § 2-2-1(a) lists statutorily designated holidays, with subdivision (13) covering election days. Subsection (b) of the same section creates the weekend-transfer rule, but expressly excludes subdivision (13). The Legislature thus deliberately treated election days differently from other holidays: they fall on the actual election day, no matter the day of the week.

The Division of Personnel had promulgated W. Va. C.S.R. § 143-1-14 to implement the statute, but the rule's text did not pick up the carve-out from the weekend-transfer rule. The AG addressed that gap with the Appalachian Power Co. principle that rules cannot trump clear statutes. The newer Harrison v. Commissioner decision (June 2010) reinforced that a legislative rule "must always submit to the legislative intent expressed in the controlling or substantive statute."

For the right to vote on election day, the AG relied on W. Va. C.S.R. § 143-1-14.1(f), which the Division of Personnel had promulgated to protect the constitutional right to vote (citing Bartlett v. Strickland). The "shall" in that rule was treated as mandatory under Nelson v. West Virginia Public Employees Insurance Board and Terry v. Sencindiver. The procedural conditions (written request, three-working-days notice, less than three free hours during polling) tightened the rule but did not undermine the substantive right.

Citations and references

Statutes and rules:
- W. Va. Code § 2-2-1(a)(13) (election day as legal holiday)
- W. Va. Code § 2-2-1(b) (weekend transfer rule, with carve-out)
- W. Va. Code § 30-10-4a (special primary to fill Senate vacancy)
- W. Va. C.S.R. § 143-1-14 (Division of Personnel holiday rules)
- W. Va. C.S.R. § 143-1-14.1(f) (three-hour paid voting leave)

Cases:
- Pullano v. City of Bluefield, 176 W. Va. 198, 342 S.E.2d 164 (1986)
- Appalachian Power Co. v. State Tax Department, 195 W. Va. 573, 466 S.E.2d 424 (1995)
- Harrison v. Commissioner, W. Va. June 3, 2010 (rule cannot override clear statute)
- Bartlett v. Strickland, 129 S. Ct. 1231 (2009) (right to vote)
- Nelson v. West Virginia Public Employees Insurance Board, 171 W. Va. 445, 300 S.E.2d 86 (1982) ("shall" is mandatory)

Source

• Landing page: https://ago.wv.gov/media/18146/download?inline
• Original PDF: https://ago.wv.gov/media/18146/download?inline

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

State of West Virginia
Office of the Attorney General
Darrell V. McGraw, Jr., Attorney General
Charleston 25305
(304) 558-2021 / Fax (304) 558-0140

August 24, 2010

The Honorable Joe Manchin III
Governor
State Capitol, 1900 Kanawha Boulevard, East
Charleston, West Virginia 25305

Dear Governor Manchin:

This office is in receipt of your request for an Opinion of the Attorney General relative to the special primary election to be held on August 28, 2010. As you observe, the Legislature enacted H.B. 201 (2010 2nd Ex. Sess.), codified at W. Va. Code § 30-10-4a, which directs the Governor to proclaim a special primary and a special general election to elect a successor to the late Senator Robert C. Byrd. The special primary election is to be held on August 28, 2010, W. Va. Code § 30-10-4a(b)(2)(A), which is a Saturday.

At the outset, we reiterate as we have previously recognized in issuing opinions "that the question presented comes to us in the abstract. Inasmuch as we render opinions in the abstract without memoranda or argument representing diverse points of view, we are constrained to approach matters conservatively. Courts may construe facts and argument differently and apply them to the law in a fashion not contemplated by an abstract opinion. Unless and until that occurs, however, our formal opinion has the force and effect of law." 65 W. Va. Op. Att'y Gen. No. 16 (Jan. 11, 1994).

You pose three questions:

A. Will Saturday, August 28, 2010, be a legal holiday for State employees?

B. If Saturday, August 28, 2010, is a legal holiday for all State employees, will it be observed the preceding Friday?

C. If Saturday, August 28, 2010, is a legal holiday, will all State employees receive credit for the holiday or just those scheduled to work on Saturday, August 28, 2010?

Our short answers to your questions are that (1) Saturday, August 28, 2010, is a legal holiday for State employees; (2) the Saturday, August 28, 2010, holiday is not transferred to Friday, August 27, 2010; and (3) employees scheduled to work on Saturday, August 28, 2010, are entitled to three hours of paid leave time to vote as long as these employees properly request such time. We now elaborate on our conclusions.

A. Saturday, August 28, 2010, is a legal holiday for State employees.

"Legal holidays are generally created either by legislative enactments or by gubernatorial or presidential proclamations authorized by general legislation." Syl. Pt. 1, Pullano v. City of Bluefield, 176 W. Va. 198, 342 S.E.2d 164 (1986). The West Virginia Legislature has enacted West Virginia Code § 2-2-1 that addresses the issue of legal holidays. Specifically, West Virginia Code § 2-2-1(a)(13) provides that "[a]ny day on which a general, primary or special election is held is a holiday throughout the state, a political subdivision of the state, a district or an incorporated city, town or village in which the election is conducted[.]" "When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute." Syl. Pt. 5, State v. General Daniel Morgan Post, 144 W. Va. 137, 107 S.E.2d 353 (1959). More succinctly, "[w]here the statutory language is clear and unambiguous, it should be applied as written." State ex rel. Corp. of Charles Town v. Sanders, 224 W. Va. 630, 633, 687 S.E.2d 568, 571 (2009) (per curiam). Applying the clear and unambiguous language of West Virginia Code § 2-2-1(a)(13), we conclude that Saturday, August 28, 2010, is a legal holiday in light of West Virginia Code § 30-10-4a(2)(A)'s designation of that day as a special primary election day.

B. Saturday, August 28, 2010, is the legal holiday and the holiday is not transferred to the preceding Friday.

West Virginia Code § 2-2-1(b) provides a weekend transfer rule; that is, if a legal holiday falls on a Saturday, the holiday is transferred to the preceding Friday, and if the holiday falls on a Sunday, the following Monday becomes the holiday. This transfer, though, does not apply to "subdivision (13), subsection (a)" of West Virginia Code § 2-2-1. Subsection a of subdivision thirteen (13) of West Virginia Code § 2-2-1 is the subsection that creates special election days as legal holidays.

We are compelled to observe here that the Division of Personnel Administrative Rule dealing with holidays and implementing West Virginia Code § 2-2-1 does not contain language exempting election days from the weekend transfer rule. See W. Va. C.S.R. § 143-1-14 (2007). In dealing with legislative rules, the Supreme Court of Appeals has held "[t]he court first must ask whether the Legislature has directly spoken to the precise question at issue. If the intention of the Legislature is clear, that is the end of the matter, and the agency's position only can be upheld if it conforms to the Legislature's intent." Syl. Pt. 3, in part, Appalachian Power Co. v. State Tax Dep't, 195 W. Va. 573, 466 S.E.2d 424 (1995). Only recently the West Virginia Supreme Court of Appeals has explained that a legislative rule cannot trump the legislative intent embodied in a clear and unambiguous statute. "[A] rule must always submit to the legislative intent expressed in the controlling or substantive statute which the rule is promulgated to implement." Harrison v. Commissioner, No. 34970, slip op. at 13 (W. Va. June 3, 2010). Thus, the absence of the weekend transfer rule in the Code of State Rules is of no moment here since the controlling authority is the statute not the administrative rule.

The clear and unambiguous language of West Virginia Code § 2-2-1 in light of West Virginia Code § 30-10-4a, leads to the unassailable conclusion that the special primary election holiday of Saturday, August 28, 2010, is not transferred to the preceding Friday.

C. On an election day, State employees who are working are entitled to "ample and convenient time and opportunity" to vote.

Because the special primary election to replace Senator Byrd will occur on a Saturday, most State employees will not be working and they will simply be unaffected because, as to them, the Saturday has no real significance. For those that are working, however, the Division of Personnel has implemented a legislative rule to protect the employees' fundamental, constitutional right to vote. Bartlett v. Strickland, 129 S. Ct. 1231, 1240 (2009) (plurality opinion) (observing that "the right to vote [is] one of the most fundamental rights of our citizens.").

An appointing authority shall, if necessary, allow any employee required to work on any election day ample and convenient time and opportunity to cast his or her vote. Upon receipt of a written request at least three work days prior to an election, an appointing authority shall give any employee who has less than three hours of time away from work during hours polling places are open, up to three hours of paid time off between the opening and closing of the polls, to vote. The appointing authority shall schedule such time off to avoid impairment or disruption of essential services and operations.

W. Va. C.S.R. § 143-1-14.1(f) (2007). We observe that this section uses the word "shall," which is generally mandatory. Syl. Pt. 1, Nelson v. West Virginia Public Employees Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982); Syl. Pt. 2, Terry v. Sencindiver, 153 W. Va. 631, 171 S.E.2d 480 (1969). The appointing authority is obligated, therefore, to provide to an employee who must work on Saturday, August 28, 2010, up to three hours of paid time off between the opening and closing of the polls, to vote as long as the employee (1) has less than three hours of time away from work when the polls are open; (2) asks for time off to vote; (3) in writing; (4) to the appointing authority or the appointing authority's designate; (5) within three working days before the election.

In summary, we conclude that (1) Saturday, August 28, 2010, is a legal holiday for State employees; (2) the Saturday, August 28, 2010, holiday is not transferred to Friday, August 27, 2010; and (3) employees scheduled to work on Saturday, August 28, 2010, are entitled to three hours of paid leave time to vote if they satisfy the procedural criteria spelled out in West Virginia C.S.R. § 143-1-14.1(f) (2007).

Thank you for the opportunity to render an opinion on this matter.

Very truly yours,

Darrell V. McGraw, Jr.
Attorney General

Scott E. Johnson
Assistant Attorney General