Nelson v. West Virginia Public Employees Insurance Board

300 S.E.2d 86, 171 W. Va. 445

• Court: West Virginia Supreme Court
• Decided: January 20, 1983
• Docket: 15468
• Status: Published

Opinions

McGRAW, Justice:

This is an original proceeding in mandamus. The petitioners are Robert Nelson, Kathleen Via and Leoda Fortney. Petitioner Nelson is a member of the Senate of West Virginia and the chairman of the Senate Committee on Banking and Insurance. Petitioners Via and Fortney are surviving spouses of former employees of the State of West Virginia and its political subdivisions. The respondents are the West Virginia Public Employees Insurance Board, a body created and established in 1971 under the provisions of W.Va.Code § 5-16-3 (1979 Replacement Vol.) to provide group health and life insurance for all public employees, and Board members Glen B. Gainer, Jr., Auditor of the State of West Virginia, Gretchen Lewis State Workmen’s Compensation Commissioner, and Larrie Bailey, Treasurer of the State of West Virginia. The petitioners seek to compel the respondents to comply with the provisions of W.Va.Code § 5-16-18 (1979 Replacement Vol.) which directs the Board to promulgate rules and regulations providing for the participation of dependents of deceased members of the group insurance plan administered by the Board. We find that the respondents have not fulfilled the mandate imposed by statute and award the writ.

Petitioner Via’s husband was an employee of the Cabell County Board of Education for 37 years until his retirement in June of 1978. Petitioner Fortney’s husband was an employee of the State of West Virginia for 42 years until he retired in August of 1981. Mr. Via and Mr. Fortney were participating members in the Board’s Public Employees Group Insurance Plan during their years of employment. Upon retiring, both men elected to continue to participate in the insurance plan and paid to the Board the monthly premiums for continuing full coverage. Mr. Via died in May of 1981, and Mr. Fortney died in August of 1981. Both Mrs. Via and Mrs. Fortney wished to continue to participate in the group insurance plan, but were told that they could purchase insurance coverage under the Board’s plan for only 90 days after their husbands’ deaths. These petitioners purchased full coverage under the Board’s plan for the three months following the death of their spouses, but were not permitted to participate in the plan thereafter. It is not contested that Mrs. Via and Mrs. Fortney were dependent spouses of their deceased husbands.

Mrs. Via contacted Senator Robert Nelson and informed him that her benefits under the Board’s insurance plan had been terminated. Before the 1982 regular session of the West Virginia Legislature, the Senator had a bill drafted to provide for continued coverage of the dependents of deceased members of the insurance plan, but, upon introducing the bill to the Senate, discovered that an existing statute, W.Va. Code § 5-16-18 (1979 Replacement Vol.), already provided for such extended coverage. The Senator wrote to the executive secretary of the Board requesting an explanation for the Board’s failure to extend coverage to dependents of deceased employees. In reply, the executive secretary admitted that the Board was fully aware that the law provided for extended coverage to dependents of deceased members, but indicated that it had been the policy of the Board since the inception of the program in 1972 to allow participation of such persons in the program only for a limited time following the death of the plan member.

The Senator found this response unacceptable and informed the executive secretary that extending an option to the dependents of deceased members to pay premiums and continue coverage was not a discretionary function of the Board, but, rather, was mandated by statute. Thereafter, Senator Nelson, Mrs. Via and Mrs. Fortney filed this petition for a writ of mandamus to compel the Board to: (1) reinstate coverage for dependents who have been wrongly terminated from group coverage; (2) cease forthwith from terminating citizens of the State entitled to group insurance under the law; (3) adopt rules and regulations permitting dependents of deceased members of the Public Employees Group Insurance Plan to continue participation and coverage in the plan to the same extent as any public employee or member of the group, upon payment of total cost for coverage; and (4) terminate from employment those administrators who have knowingly and willfully terminated from coverage citizens whom they knew were entitled to benefits under the law. The petitioners also pray for court costs and attorney fees and such other further and general relief as may seem proper.

The Public Employees Insurance Board was established by the Legislature in 1971 “to provide major medical insurance, and group life and accidental death insurance for all employees” of the State and its political subdivisions, including elected officers. W.Va.Code § 5-16-3 (1979 Replacement Vol.). The statute we are here asked to consider mandates that the Board extend the opportunity to participate voluntarily in the group insurance plan to retired employees, their spouses and dependents and the dependents of any deceased member:

The board shall promulgate such rules and regulations as may be required for the effective administration of the provisions of this article....

Such regulations shall provide that ... the dependents of any deceased member shall be entitled to continue their participation and coverage upon payment of the total cost for such coverage _ (Emphasis added.) W.Va. Code § 5-16-18 [1972],

It is well established that the word “shall,” in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation. See Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981); Woodring v. Whyte, 161 W.Va. 262, 242 S.E.2d 238 (1978); Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969).

The Board, by its answer, admits that it is required by W.Va.Code § 5-16-18 to extend optional coverage under its group plan to petitioners Via and Fortney, and other surviving dependents of deceased members. The Board contends, however, that the issues raised by the petitioners have been resolved by the Board’s approval of a resolution proposing extension of coverage to surviving spouses and dependents of deceased covered members, and therefore moves to discharge the rule to show cause. The petitioners resist this motion contending the resolution, which was adopted after the petition herein was filed, is unclear with respect to the cost of coverage for dependents of deceased employees. The petitioners’ concern is understandable. The resolution would be unacceptable if it places surviving spouses and dependents in a unique category of special risk participants, thereby destroying the character and purpose of the group insurance plan in opposition to the public policy statement of the relevant statutes.

The purpose of a group health insurance plan is to provide insurance protection at the lowest possible participant cost. The low participant cost is achieved by the efficiencies of administration inherent in issuing insurance to groups, and by the distribution of risk over the entire participating group.

The West Virginia plan is especially attractive to the employee for it provides that upon the death of the employee, his dependents “shall be entitled to continue their participation and coverage upon payment of the total cost for such coverage.” W.Va.Code § 5-16-18. The public employee who participates in the group insurance plan authorized by the act should be secure in his belief that after his death his family will continue to receive adequate insurance protection at low group rates. The employee’s survivors have a constitutional right to the benefits provided by extant statute. See Cooper v. Gwinn, supra.

However if the Board creates a unique category of special risk for surviving spouses and dependents it substantially reduces, if not eliminates, the advantages of group insurance to those dependents in a manner which is not contemplated by the act. The statutes contemplate that spouses and dependents of deceased employees will be entitled to continue to participate in the insurance plan at the same average premium rate chargeable to the members of the pool of which their decedents were members. Otherwise the size of the dependents’ class and the number of claims that can be expected from a group with its characteristics will raise their premium rate to such a level as to eviscerate the advantages that normally attend participation in a group insurance plan.

While it is true that the Board is authorized to separately rate for claims experience purposes “any ... categorization which would insure the stability of the overall program,” W.Va.Code § 5-16-7 (1979 Replacement Vol.), this authorization does not permit the establishment of categories which defeat the inherent purposes of group insurance plans. We do not believe that the Legislature intended by enactment of this language to permit the Board to disenfranchise spouses and dependents of deceased employees from the benefits of the group insurance plans which are authorized by the act.

W.Va.Code § 5-16-18 bestows upon the petitioners, and all other spouses and dependents of deceased members of the West Virginia Public Employees Group Insurance Plan, a clear right to continue their participation and coverage in the group insurance plan administered by the West Virginia Public Employees Insurance Board. The language of the statute is mandatory, and therefore also imposes a non-discretionary legal duty on the part of the respondents to extend coverage to the petitioners. The resolution adopted by the Board on February 4, 1982 would not be an adequate remedy if it places a burden upon the petitioners, and similarly situated persons, which is not contemplated by the West Virginia Public Employees Insurance Act. The Legislature has mandated that “dependents of any deceased member shall be entitled to continue their participation and coverage _” (Emphasis added.) W.Va.Code § 5-16-18. It is the Board’s duty to fulfill that mandate. The petitioners are therefore entitled to a writ of mandamus requiring the respondents to: (1) reinstate coverage for spouses and dependents of deceased members who have been wrongfully terminated from group coverage; (2) cease forthwith from terminating from coverage those spouses and dependents of deceased members entitled to group insurance by law; and (3) adjust the rules and regulations to permit dependents of deceased members of the Public Employees Group Insurance Plan to continue participation in the plan at the same average premium rate chargeable to members of the pool of which their decedents were members.

Included in the petitioners’ prayer for relief is the request that this Court “terminate from employment those administrators who have knowingly and willfully terminated from coverage citizens whom they knew were entitled to benefits under the law.” We appreciate the petitioners’ view that the respondents have not acted properly in applying the law and in carrying out the public policy established by the Legislature. The petitioners are correct to expect that the acceptance of every public office implies an agreement on the part of the officer that he will execute its duties with diligence and fidelity. Green v. Jones, 144 W.Va. 276, 108 S.E.2d 1, adhered to on rehearing, 144 W.Va. 276, 295, 110 S.E.2d 329 (1959). As we stated in State ex rel. Preissler v. Dostert, 163 W.Va. 719, 260 S.E.2d 279 (1979):

One who accepts a public office does so cum onere, that is, he assumes the burdens and obligations of the office as well as its. benefits, subjects himself to all constitutional and legislative provisions relating to the office, and undertakes to perform all duties imposed on its occupant; and while he remains in such office he must perform all such duties. 163 W.Va. at 730, 260 S.E.2d at 286.

We elaborated upon the duties of public officers in Cooper v. Gwinn, supra:

The responsibility of all public officials is to execute their duties as the Legislature, through law, instructs .... [A]n executive officer ... has the constitutional duty to “take care that the laws be faithfully executed.” W.Va. Const, art. 7, § 5. Our Constitution does not permit executive officers to pick and choose the laws they will or will not execute, for if such were the case, the executive department could, either by commission or omission, model a system of law different than that specified by the people acting through the Legislature. So long as a legislative enactment as law exists, the executive department has the constitutional duty to attend to its faithful execution. Cooper v. Gwinn, supra at 789.

The American form of republican government contemplates that public policy expressions of the people as enacted by the Legislature in law are binding upon officers of the executive branch of government in the discharge of their duties. Executive department officers may not disregard a clear legislative mandate embodied in a statute. See Cooper v. Gwinn, supra, for a discursive treatment of the theory of republican government as guaranteed by article IV, section 4 of the United States Constitution and as embodied in the West Virginia Constitution.

In this case the respondents admit that they have failed to implement the legislative mandate of W.Va.Code § 5-16-18 in knowing disregard of the statute’s requirements. Our constitution provides that public officers may be removed from office for “official misconduct, incompetence, neglect of duty, or gross immorality_” W.Va. Const, art. 4, § 6. Willful or negligent violation of a statute has been held to constitute grounds for removal of a public officer. Wysong v. Walden, 120 W.Va. 122, 52 S.E.2d 392 (1938); Ball v. Toler, 109 W.Va. 61, 153 S.E. 238 (1930).

However, this is not a proper proceeding in which removal can be effected. All of the respondents serve as members of the West Virginia Public Employees Insurance Board by statutory mandate. W.Va. Code § 5-16-5 (1979 Replacement Vol.). Two of the respondents are executive officers who are elected to their respective offices of auditor and treasurer. W.Va. Const, art. 7, § 1. Under the provisions of W.Va.Code §§ 6-6-5 and 6-6-6 (1979 Replacement Vol.), jurisdiction for removal of these officers is given to the Governor as chief executive officer of the State. The other named respondent is an executive officer appointed by the Governor to the office of workmen’s compensation commissioner. W.Va.Code § 23-1-1 (1981 Replacement Vol.); W.Va.Code § 6-7-2a (Cum.Supp.1981). Under the provisions of article 7, section 10 of the West Virginia Constitution and W.Va.Code § 6-6-4 (1979 Replacement Vol.) jurisdiction for removal of officers appointed by the Governor is also vested in the Governor. The executive secretary and other administrative personnel of the Board, who are not named respondents herein, are appointed by the Board itself. W.Va.Code § 5-16-6 (1979 Replacement Vol.). Thus jurisdiction for the removal of these personnel lies first with the Board and next with the Governor. The jurisdiction of this Court under the statutory procedure is appellate, not original. See W.Va. Const, art. 3, § 17; art. 8, § 3.

Finally, the petitioners request an award for court costs and attorney fees. As a general rule awards of costs and attorney fees are not recoverable in the absence of a provision for their allowance

in a statute or court rule. See, e.g., Burdette v. Campbell, 126 W.Va. 591, 30 S.E.2d 713 (1944); see generally, 1 S. Speiser, Attorneys’ Fees § 12:3 (1973) and cases cited therein. By statute in West Virginia the writ of mandamus may be awarded with or without costs as the court or judge may determine. W.Va.Code § 53-1-8 (1981 Replacement Vol.). Ordinarily, in mandamus proceedings, costs will not be awarded against a public officer who is honestly and in good faith endeavoring to perform his duty as he conceives it to be. State ex rel. Koontz v. Board of Park Commissioners of City of Huntington, 131 W.Va. 417, 47 S.E.2d 689 (1948). However, it is settled that in mandamus proceedings where a public officer willfully fails to obey the law, costs will be awarded. See, e.g., State ex rel. Board of Education v. Cavendish, 81 W.Va. 266, 94 S.E. 149 (1917). The respondents herein admit that they have willfully disregarded the mandatory provisions of W.Va.Code § 5-16-18. Accordingly, an award of costs against them is justified.

The general rule denying awards of attorney fees has developed primarily in the context of civil litigation dealing with controversies between private parties. See 1 S. Speiser, supra at § 12:4. There are few cases discussing such awards in the context of extraordinary proceedings, as mandamus, where public officers are parties to the action. Generally those jurisdictions which have addressed the issue have adhered to the traditional rule denying attorney fees in the absence of express statutory authorization. See State ex rel. Roberson v. Board of Education, 70 N.M. 261, 372 P.2d 832 (1962); State ex rel. Ray v. South, 176 Ohio St. 241, 27 Ohio Ops.2d 133, 198 N.E.2d 919 (1964); State ex rel. Pacific Bridge Co. v. Washington Toll Bridge Authority, 8 Wash.2d 337, 112 P.2d 135 (1941). However, some jurisdictions have permitted awards of attorney fees in mandamus proceedings where the statute permits recovery of “costs” or “damages.” See Cities Service Oil Co. v. Board of City Commissioners, 224 Kan. 183, 578 P.2d 718 (1978); State ex rel. Wolff v. Geurkind, 111 Mont. 417, 109 P.2d 1094 (1941); Colorado Development Co. v. Creer, 96 Utah 1, 80 P.2d 914, reh. den. 96 Utah 19, 84 P.2d 785 (1938).

This Court has previously held that attorney fees are not “costs,” State ex rel. Citizens Nat’l Bank v. Graham, 68 W.Va. 1, 69 S.E. 301 (1910), and thus attorney fees would not ordinarily be recoverable as such. Nevertheless the petitioners’ request for attorney fees has merit. Our statutory law does not contemplate that officers of the executive branch of government, after taking their oath, W.Va. Const, art. 4, § 5; W.Va.Code § 6-1-3 (1979 Replacement Vol.), will knowingly disregard their duty to faithfully execute the law. It is implicit in our system of government that public officers will perform their duties in accordance with statute. Indeed, the constitution explicitly contemplates and mandates that public officers “shall perform such duties as may be prescribed by law.” (Emphasis added.) W.Va. Const, art. 7, § 1. Citizens should not have to resort to lawsuits to force government officials to perform their legally prescribed non-discretionary duties. When, however, resort to such action is necessary to cure willful disregard of law, the government ought to bear the reasonable expense incurred by the citizen in maintaining the action. No individual citizen ought to bear the legal expense incurred in requiring the government to do its job.

A well established exception to the general rule prohibiting the award of attorney fees in the absence of statutory authorization, allows the assessment of fees against a losing party who has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. See, e.g., Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); see also, Annot., 31 A.L.R.Fed. 833 (1977). The actions of the respondents evidence a deliberate disregard for the mandatory provisions of W.Va.Code § 5-16-18. As a result of the respondents’ willful evasion of the law, the petitioners were forced to hire a lawyer and go to court to get what they were clearly entitled to by statute. The respondents’ refusal to perform their clear statutory duty justifies an award of attorney fees. Cf State ex rel. Koontz v. Board of Park Commissioners of City of Huntington, supra. We therefore hold that the petitioners herein are entitled to reasonable attorney fees expended in the prosecution of this action. In mandamus proceedings where a public officer willfully fails to obey the law, attorney fees will be awarded. The reasonableness of the attorney fees sought to be recovered will be determined by reference to the factors set out in Disciplinary Rule 2-106 of our Code of Professional Responsibility. See Farley v. Zapata Coal Corp., 167 W.Va. 630, 281 S.E.2d 238 (1981).

For the foregoing reasons we award a writ of mandamus and order the respondents to (1) immediately reinstate coverage for spouses and dependents of deceased members who have been wrongfully terminated from group coverage in violation of W.Va.Code § 5-16-18; (2) cease forthwith from terminating from coverage those spouses and dependents of deceased members who desire to continue coverage in the group insurance plan; (3) adjust the rules and regulations to permit dependents of deceased members of the Public Employees Group Insurance Plan to continue participation in the plan by payment of the total cost of their coverage at the same average premium rate chargeable to members of the pool of which their decedents were members; and (4) pay the petitioners’ costs and reasonable attorney fees.

Writ awarded.