W.Va. SC: State DEP employee's job should be reinstated

Jessica M. Karmasek Apr. 9, 2012, 10:44am


CHARLESTON, W.Va. (Legal Newsline) - The West Virginia Supreme Court of Appeals ruled last month that a woman's job at a state agency should be reinstated.

The state's high court, in its March 22 opinion, upheld an Oct. 26, 2010 order by the Kanawha County Circuit Court, which affirmed the decision of the state Public Employees Grievance Board.

The board found merit in respondent Michelle L. Falquero's contention that her job at the state Department of Environmental Protection should not have been terminated because she could, and did, rescind her voluntary resignation before the agency had accepted it.

The board then ordered the DEP to reinstate Falquero with back pay.

In its appeal to the state Supreme Court, the DEP maintains that the circuit court incorrectly affirmed the board.

It contends the board's decision to allow a voluntary resignation of a public employee to be withdrawn was not grounded in established state law.

Additionally, the agency claims that the administrative law judge acted "arbitrarily" and "capriciously," and exceeded his statutory authority when he did not follow a past board decision.

The state's high court said in its 18-page opinion that the DEP's argument is based on the "flawed premise" that classified civil service employees may be treated as at-will employees.

"This Court has unequivocally said that '(a) person covered under a civil service system is afforded certain statutory protections surrounding his employment and is, therefore, not an at-will employee,'" Justice Thomas McHugh wrote for the Court.

Refusal to accept a public employee's withdrawal of a prospective resignation has been viewed as having the same effect as terminating a public employee without cause, McHugh explained.

"We hold that unless otherwise provided by law, a classified public employee may rescind or withdraw a tender of resignation at any time prior to its effective date as long as the withdrawal occurs before acceptance by the employing agency," the justice wrote.

"We also do not find that simply stating 'okay' is an indication of acceptance when other actions of the agency do not contemplate acceptance."

Then what constitutes acceptance of a resignation?

"We find no reason to follow the course taken by some states of imposing a rigid requirement on governmental agencies to formally, in writing or other prescriptive means, indicate acceptance whenever a classified public employee tenders a resignation," McHugh wrote.

"Nevertheless, the tender of a resignation should not render an agency at the mercy of the employee until the appointed date of resignation arrives."

He continued, "Consequently, we adopt a more flexible approach by holding that acceptance of a tender of resignation of public employment may occur when the employer (1) clearly indicates acceptance through communication with the employee, or (2) acts in good faith reliance on the tender."

The evidence -- which was not disputed -- establishes that acceptance of Falquero's resignation did not occur, the Court said.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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