James C. Weimer, Petitioner Below, Petitioner
Public Service Commission of West Virginia, Respondent Below, Respondent and Robert Weiford, Intervenor Below, Respondent
Kanawha County 16-AA-99
James C. Weimer, pro se, appeals the June 28, 2017, order of
the Circuit Court of Kanawha County affirming the September
29, 2016, decision of the West Virginia Public Employees
Grievance Board denying his grievance challenging the
appointment of Respondent Robert Weiford to a "Engineer
Senior" position for which petitioner also applied.
Respondent Public Service Commission of West Virginia
("PSC"), by counsel Belinda B. Jackson, filed a
summary response. Petitioner filed a reply.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's orders is appropriate under
Rule 21 of the Rules of Appellate Procedure.
is a long-term "Engineer Associate" with the PSC.
On February 27, 2015, the PSC posted two job classifications
for the same opening within its division of gas pipeline
safety. According to the testimony of Elizabeth Sharp, the
PSC's human resources manager, the posting of the single
job opening under both "Engineer Senior" and
"Technical Analyst Senior" classifications was not
unusual and occurs to expand the applicant pool and
"find the best suitable candidate for the
position." Both petitioner and Mr. Weiford, then an
employee of the West Virginia American Water Company
("WVAWC"), applied for the position as engineers.
The "Engineer Senior" posting described the job
At an administrative and supervisory level assisting
with the functions of the gas pipeline safety division, this
position will be responsible for the following duties: assist
with the day to day management of inspection schedules and
staff, including time sheet and expense account; assist
[the] director in development of division policies and
procedures and monitoring budget; collect, generate[, ]
and furnish data and paperwork associated with the federal
pipeline safety grant program and assist with the annual
program review; write and evaluate compliance actions for
enforcement; act in place of the director when [the]
director is unavailable; lead investigations of pipeline
accidents and incidents, including collection evidence[, ]
providing expert testimony . . . .
to the testimony of Rebecca White of the West Virginia
Division of Personnel ("DOP"),  a person such as
petitioner or Mr. Weiford would know to apply due to the
"Engineer Senior" posting which
"established" the job opening. To be eligible to
fill the vacancy, an applicant was required to meet the
minimum qualifications listed in the posting, which were
"eight years of full-time or equivalent part-time paid
employment as a licensed professional engineer in a
responsible capacity in charge of engineering projects."
The PSC interviewed all seven minimally-qualified applicants.
Mary Friend, the director of the PSC's gas pipeline
division, developed the interview questions in consultation
with Ms. Sharp. Ms. Friend determined that the questions
should focus on the supervisory skills that an applicant
would need to fill the position. The interview panel
consisted of Ms. Friend, who was a licensed professional
engineer, and two managers of different divisions within the
PSC, with Ms. Sharp also present in order to ensure
compliance with applicable employment policies. Ms. Friend
and the two managers scored each applicant according to their
answers to the questions previously developed by Ms. Friend
and asked of every applicant. Once the scores were tabulated,
Mr. Weiford ranked first with a score of 140. Petitioner
ranked sixth out of the seven applicants, with a score of
Ms. Friend checked Mr. Weiford's references including
Jeff Ferrell, Mr. Weiford's direct supervisor at his
former job with WVAWC. Mr. Ferrell informed Ms. Friend that
Mr. Weiford had a good work ethic with "no issues"
and that he would recommend Mr. Weiford for the
"Engineer Senior" position. Ms. Friend recommended
to Michael A. Albert, the PSC's chairman, that the
position be offered to Mr. Weiford. Following Mr.
Albert's approval of Ms. Friend's request, Ms. Sharp
sent the necessary paperwork to the DOP. Ms. White testified
that the DOP validated that Mr. Weiford met the minimum
qualifications for the "Engineer Senior" position:
. . . In looking at his application, he's with [WVAWC]
since 1996 to present. In going over his duties, all of these
duties I deemed, along with the first [p]ersonnel
[s]pecialist review, they are professional engineer in
nature. Though his license was not obtained until 2005, we
would not give credit until the start of 2005 when he
actually obtained his [p]rofessional [e]ngineer license.
So with that, the dates from 2005 to present, that would be a
little over nine years. So[, ] he would meet the minimum
qualifications for [the "Engineer Senior"
White further testified that it is a legitimate practice for
an agency such as the PSC to select a candidate out of the
applicant pool prior to having that candidate's minimum
qualifications validated by the DOP, explaining that
"[w]e do not govern that." Accordingly, on May 20,
2015, the DOP sent Mr. Weiford a notice of eligibility
stating that he was qualified for the "Engineer
Senior" position within the PSC's gas pipeline
division. On June 15, 2015, the PSC appointed Mr. Weiford to
the position with the title of manager of the gas pipeline
25, 2015, petitioner filed a grievance challenging Mr.
Weiford's appointment, requesting that it be rescinded
and that he be appointed to the position or that he be given
an equivalent open position. Petitioner also moved that Mr.
Albert, the PSC's chairman, recuse himself from the
initial levels of the grievance process given Mr.
Albert's former employment as an attorney for WVAWC. Mr.
Albert subsequently scheduled the level one grievance hearing
for July 10, 2015, and denied petitioner's motion for his
recusal, finding that petitioner "failed to explain or
establish any basis for disqualification." On June 30,
2015, Mr. Weiford was allowed to intervene in
petitioner's grievance. The level one hearing was
rescheduled to August 24, 2015, and, at petitioner's
request, held as a conference. Petitioner's grievance was
denied at level one. At level two, the parties participated
in meditation which did not lead to a resolution.
level three, an administrative law judge ("ALJ")
with the West Virginia Public Employees Grievance Board held
an evidentiary hearing on May 16, 18, and 19, 2016.
Petitioner, Mr. Weiford, Ms. Sharp, Ms. White, Ms. Friend,
and the two managers, who interviewed the applicants with Ms.
Friend during the hiring process, all testified at the
hearing. Mr. Weiford testified with regard to discipline that
he had received at his former job with WVAWC due to a safety
incident. Ms. Friend testified that, while she would have
preferred that Mr. Weiford had disclosed the incident during
his interview, she did not believe that the incident was
significant because the same supervisor at WVAWC who
disciplined Mr. Weiford also recommended him for the
"Engineer Senior" position:
Q. Do you think that's something that his reference and
his direct supervisor, who actually gave him the safety
reprimand, should have disclosed to you ...