WILLIAM ANNON

v DOCKET NO. 91-T-316

WEST VIRGINIA DEPARTMENT OF TAX and REVENUE/ WEST VIRGINIA DIVISION OF PERSONNEL

DECISION Grievant, William Annon, is employed by the West

Virginia Department of Tax and Revenue (Respondent) as a Revenue Agent. Mr. Annon initiated this grievance on July 11, 1989, when he filed a complaint at level four alleging that his salary had been reduced without basis or justification. Because the procedural history of this matter is unusual it will be included in the recital of facts which are undisputed.
Grievant was first employed by Respondent in August

1985 as a Tax Field Agent I. In December 1985 all Tax Field Agents were reclassified by Civil Service to the position of Revenue Agent. Grievant served as a Revenue Agent until June 30, 1988, when he resigned. At the time of hisresignation Grievant was assigned to Pay Grade 12, Step 1A, and received an annual salary of $15,165.60. Effective July 1, 1988, Grievant began employment with

the West Virginia Department of Highways (Highways) as a Highway Administrative Manager, with an annual salary of $24,615.60. In November 1988 Grievant applied for reinstatement at the Department of Tax and Revenue to his prior position of Revenue Agent. Grievant rejected an offer made by John Marlow, then Deputy Tax Commissioner, of reinstatement at his separation salary but negotiated his return as a Revenue Agent with a salary of $21,062.40. Thereafter Grievant resumed his employment with Respondent on December 30, 1988. On or about this same date Respondent hired two other individuals as Revenue Agents, neither of whom had been previously employed by the State. These new employees were also awarded a higher than entry-level salary at Pay Grade 12, Step 7E, or $18,156.00 per annum. Following these hirings eleven other Revenue Agents, all of whom were earning less than $18,156.00, filed grievances regarding the disparities in salaries. These grievances were consolidated at level three as Coon, et al. v. State Tax Department. John Melton, hearing evaluator at level three, determined that the employment of the two agents at Pay Grade 12, Step 7E, was in conformity with Civil Service Regulations, Section 6.04(b), and that no discrimination had occurred; however, Mr. Melton found Mr. Annon's situation to be different. Specifically, Mr. Melton could find no precedent which would allow an employee to be reinstated to exactly the same position with an eight-step salary increase, and that in the absence of such precedent, Mr. Annon's salary would have to be reduced from Pay Grade 12, Step 8B to Pay Grade 12, Step 1A (from $21,062.40 to $15,165.60 per year). The salary reduction was not to become effective until September 1, 1989, so as to allow Mr. Annon the opportunity to file his own grievance prior to the implementation of the reduction.
Mr. Annon filed a grievance directly at level four on July 11, 1989; said matter was remanded for processing at the lower levels. On September 5, 1989, Grievant filed a complaint at level one in which he alleged:

Mr. John Melton, Level III Grievance Evaluator, notified me of a decision he made to reduce my pay from Pay Grade 12, Step 8B to Pay Grade 12, Step 1A, effective 9/1/89. As a result of a grievance filed by Paul Coon et al. I feel there is no basis or justification for Mr. Melton's decision regarding this matter. The relief I am seeking as a result of Mr. Melton's decision is that my pay not be reduced effective 9/1/89, and reimbursement be made for all legal expenses and any other expenses incurred pursuing this matter.

The grievance was denied at levels one and two but was

granted by Dale Steager, grievance evaluator at level three. Mr. Steager found that the salary calculations set forth in Civil Service Regulations, Section 6.04(b) applied to reinstated as well as new employees, therefore, Grievant was entitled to the higher salary at which he had been rehired. Mr. Steager noted that although Respondent had offered some support for its action by arguing that the disproportionate salary paid to Grievant resulted from favoritism, this issue could not be considered because Grievant had no cause to believe the salary reduction was based on any reason other than that stated in Mr. Melton's decision. Following Mr. Steager's decision, issued October 30,

1989, then-Secretary of the West Virginia Department of Tax and Revenue Charles Lorensen issued a letter to Grievant dated November 13, 1989, which rescinded Mr. Steager's decision. Secretary Lorensen stated in pertinent part: I am troubled by the circumstances which led to your reinstatement with our Compliance Division in December, 1988. Based on the documentation and information provided me, I have determined that your reinstatement resulted from favoritism in violation of Chapter 29, Articles 6 and 6A of the West Virginia Code.

The decision of Dale W. Steager, Grievance Evaluator, dated October 30, 1989 should not be viewed as dipositive of the issue of favoritism. As clearly stated by Mr. Steager on page 6 of his decision, '[the] evaluator has not commented or ruled on the merits of any evidence submitted on the issue of favoritism.' Mr. Steager's determination, which reversed John Melton's decision
reducing your salary, was clearly grounded upon the fact that the rationale for reduction of your salary enunciated in Mr. Melton's decision, was simply incorrect.

In light of the circumstances of your reinstatement as well as the fact that your current
salary is completely out of line with those of your co-workers with similar experience, I cannot allow the inequity of the present situation to continue. I realize that this action affects a significant source of your family income. However, I cannot ignore the overall responsibility of being fair and equitable to all employees of this Department, particularly in matters relating to salary. Therefore, you are hereby notified that effective January 1, 1990 your salary will be reduced from Pay Grade 12, Step 8B to Pay Grade 12, Step 1A. I am not making this action effective until January 1, 1990 so as to provide you an opportunity to avail yourself of the grievance procedure for state employees or seek other employment at higher wages, should you choose to do so. However, I hope you will consider remaining with this agency and continue to contribute to the exceptional performance of our Compliance Division.

Upon receipt of this letter, Grievant filed a grievance at level three on December 4, 1989. Mr. Steager conducted a level three hearing on March 30, 1990, and on July 9, 1991, issued a decision denying the grievance. In his comprehensive second evaluation of the matter, Mr. Steager's decision included findings that Grievant's reinstatement and salary were not determined solely on the basis of merit and fitness as is required by W.Va. Code 29-6-1, and were contrary to Respondent's and West Virginia Division of Personnel' s (Personnel) policies and procedures. It was further determined that Grievant had been accorded favoritism, as defined in W.Va. Code 29-6A-2(h), 29-6-20(a) and (c), during the reinstatement process. Grievant appealed this decision to level four on July 16, 1991; a hearing was conducted on November 15, 1991, at which time the parties supplemented the record and reviewed their positions. Neither party exercised its right to file proposed findings of fact and conclusions of law.
Respondent adopts a unique position in this matter by

charging itself with having shown favoritism toward Grievant, which it later attempted to correct by reducing his salary. Respondent asserts that the revision of Grievant's salary was an attempt to "do the right thing" and alleviate an inequity which was affecting the morale and image of the Department. In his second level three decision, Mr. Steager noted that personnel changes such as those herein are not unknown in public employment and that it is a common practice at the end of an administration for persons employed in unclassified positions by the outgoing administration to "run for cover" or seek refuge in the protected classified positions, a practice to which the outgoing administration is frequently sympathetic. In his evaluation of the present matter Mr. Steager

concluded that sufficient evidence had been produced to establish, as matter of law, (1) Grievant was reinstated to his former position at a significantly higher salary because of his political opinions or affiliations, contrary to W.Va. Code 29-6-20(a) and (2) persons used, directly or indirectly, their authority or influence to secure for Grievant an appointment or advantage in appointment to a position in the classified service, contrary to W.Va. Code 29-6-20(c). The following evidence was cited in support of these conclusions.

First, Grievant's Application for Examination, filed in

November 1988 for the position of Revenue Agent, was rejected because he did not meet the minimum requirements for appointment to that position. The specific inadequacy in Grievant's qualifications had been identified as his failure to complete two years of college credit. Although he claimed fifty-four hours of credit on his application, a handwritten notation on his transcript from Potomac State College listed only fifty-one hours, but did not indicate which three hours had been disallowed. Mr. Steager speculated that one possible explanation for this discrepancy was that three credit hours Grievant earned for participating in the band at Potomac State College had been disallowed during the initial review but was later granted when Geneva Clemons, an employee at Personnel who reviewed Grievant's application, was instructed, on January 24, 1989, to use sixty hours of college credit when calculating Grievant's salary.
A note stating that Bob DeVaul, Grievant's supervisor

at Highways, had been called on December 7, 1988, and advised that Grievant did not qualify for reinstatement to the revised position was attached to Grievant's application. Lowell Basford, Assistant Director of Personnel, testified that Grievant's supervisor at Highways then submitted a copy of Grievant's Student Record from West Virginia State College which indicated that Grievant had been admitted to the West Virginia Board of Regents Bachelor of Arts Program for the Spring 1989 semester. The Student Record indicated that Grievant had been credited for fifty-four hours work at Potomac State College and had been granted college credit equivalency for two, three-hour classes, Speech Communications (COMM 100) and The Public Speech (COMM 203) at West Virginia State College.
A note from an unidentified source dated January 24,

directed Ms. Clemons to use the sixty college hours plus two years experience as a Tax Field Agent/Revenue Agent to satisfy the minimum requirements for Grievant's reinstatement. She was further directed to use four additional years of experience Grievant earned at the agency as the basis for the advanced salary classification. On January 27, 1989, Carol Vanater, another employee at Personnel, signed Civil Service approval on the WV-11 form to reinstate Grievant as a Revenue Agent effective December 30, 1988, with an annual salary of $21,062.40.
Mr. Steager determined that the use of Grievant's

qualifications to support the higher salary was suspect for two reasons. First, Grievant's work experience had been leveraged to gain six hours of college equivalency credit from West Virginia State College, enabling him to meet the two years of college requirement, and the same experience was then used to substantiate his elevated salary. Mr. Steager found this "double counting" of Grievant's experience to be facially unfair. The second basis for finding Grievant's qualifications suspect was the inconsistent conclusions made during the two reviews of Grievant's transcripts, specifically, that sixty hours of credit were accepted in January 1989, while only fifty-one of the fifty-four hours earned at Potomac State College had been allowed in December 1988.
In addition to the irregularities concerning Grievant's

qualifications, Mr. Steager also cited "considerable unrefuted [testimony] that Mr. Annon's reinstatement was initiated, processed, and in many other respects, handled differently than that of other applicants for employment." Mr. Steager cited the testimony of Mr. Basford who stated that the flow of information regarding Grievant had been from Mr. DeVaul to Personnel, while in most cases the information is transmitted by someone in a personnel capacity within the employing agency.
Mr. Basford indicated that he was unsure of Mr.

DeVaul's role, but that the information was not handled by the individuals at Highways who usually worked with Personnel. Mr. Basford confirmed that Grievant's classification at Pay Grade 12, Step 8B was in compliance with Personnel's regulations but did not recall any prior reinstatement of an employee with an increase in salary of the magnitude in this case. Despite the strict compliance with Personnel Regulations Mr. Basford concluded that the Grievant's salary upon reinstatement was improper. He stated in pertinent part: The merit system, which is the foundation for the Career Service of the Civil Service System, is the basis for all of our regulations. Its strongest platform or element is that of equity and there are a number of employees in the Tax Department who file even another grievance regarding the discrepancy in pay when these kinds of transactions occur. I would have no difficulty with the problem with the salary increase that Mr. Annon received if you could view him in isolation, if there were no other Revenue Agents involved here, but there are a number of other employees in the Tax Department and Revenue Agents who continue to be paid at a salary far below what Mr. Annon was reinstated at, whose qualifications equal to, or exceed his qualifications.

In addition, I can find no merit factor which would have allowed that kind of increase to occur. The period of time that he was absent from the Tax Department was only six months; therefore, you can't say that he was accruing additional time someplace else that would allow that kind of increase. The work that he performed at the Division of Highways, based upon his own application that we received, was not at all pertinent to the Revenue Agent function or responsibilities, so you cannot conclude that he achieved additional skill, knowledge and abilities during his brief absence which would suddenly allow him to perform at a higher level which would justify that kind of salary increase. So absent any merit bases for that kind of salary increase the only conclusions that I can draw is that it must be seen as favoritism, although all of the particulars in terms of the steps and procedures of the Civil Service law were followed and our employees evaluated Mr. Annon's application and certified that he was eligible for those particular steps and salary grades, there's an additional law that we have to deal with now and that is the grievance law, 29-6A. In that part of the statute there is a definition of favoritism which clearly would prohibit, I think, this kind of personnel action when it negatively impacts and affects other employees whose qualifications are equal to or exceed the grievance [grievant's] and which did not have the same kind of salary increase afforded them.

(T. Level III 83-85).
June Sydenstricker, formerly the Personnel Officer for

the State Tax Department, testified that she had initially been instructed by Mr. Marlow to assign Grievant at the top pay step of the pay grade. Ms. Sydenstricker recalled that she advised Mr. Marlow that Grievant would not be qualified at that level and that Mr. Marlow then requested that she evaluate Grievant's application and determine at what level he could be reinstated. Ms. Sydenstricker concluded that based upon the records she possessed, Grievant's education and experience would qualify him for placement at Step 6B, a recommendation that Mr. Marlow seemingly accepted until Personnel advised that Grievant would qualify at Step 8B. Ms. Sydenstricker further stated that in her fourteen years of experience she had never observed the reinstatement of any employee six steps above their prior salary. John Holcomb, Assistant Director of the Compliance

Division, stated that after Grievant's resignation the position of Revenue Agent was posted but was then closed and left unfilled, even though both applicants and funding were available. Several months later, Mr. Holcomb recalled, Mr. Marlow called to advise him that Grievant would be reinstated. Mr. Holcomb then completed the OPS-31, Personnel Change Request Form, on which Grievant's salary was listed to be $18,807.00. The document was submitted to Mr. Marlow and when it was returned the salary had been revised to $21,062.40. The Assistant Director stated that he objected to the revised salary because he thought the enormous increase would cause problems. To illustrate, Mr. Holcomb noted that Grievant's salary was second highest of the eighteen Revenue Agents, a placement the witness opined was justified by neither tenure nor education. Finally, Mr. Holcomb characterized Grievant's performance prior to his resignation as "way below average" and stated that after his reinstatement through December 1, 1989, Grievant's performance remained "below average," although he had shown an increase in interest and production since his return. Mr. Holcomb confirmed that the process by which

Grievant's reinstatement was accomplished differed from Mr. Marlow's standard procedure. The routine hiring procedure at that time was to procure a list of Civil Service applicants for the particular position. Mr. Marlow initially interviewed/screened the candidates and those deemed acceptable were then sent to either the Unit Manager for whom the employee would be working or the Assistant Director for second, and possibly third, interviews. The decision to hire was made at the Division level, except in the present matter, wherein neither the Director nor Unit Manager were consulted.
John Melton, Deputy Tax Commissioner for the Office of

Revenue Operations, testified that after Grievant's resignation in 1988 he had been directed to leave the position vacant, even though the Division needed more Revenue Agents at that time. Mr. Melton stated that he had advised Mr. Marlow, who was by then Acting Tax Commissioner, that Grievant's salary was out of line compared to other employees who were performing the same work and that the inequity was causing morale problems. Shortly thereafter, when Mr. Lorensen was appointed Secretary of the newly realigned Department of Tax and Revenue, Mr. Melton advised him of Grievant's reinstatement salary and its impact on employee morale.
The final irregularity cited by Mr. Steager was that

Grievant returned to work on December 30, 1988, almost four weeks before Personnel determined that he qualified for reinstatement, a violation of W.Va. Code 29-6-14, and that processing of his application continued after a hiring freeze had been imposed by Governor Gaston Caperton, effective January 16, 1989. Final approval of Grievant's reinstatement was not given by Personnel until January 27, 1989, but was retroactive to December 30, 1988. Grievant denies that his reemployment with Respondent

was the result of favoritism and asserts that no direct evidence was produced to substantiate that claim. Grievant argues that he was reinstated at the conclusion of a four step procedure which required that the Respondent recommend that he be employed, Finance and Administration determine whether funding for the position was available, approval by the Governor's office, and review of his credentials by Personnel. Grievant asserts that this process provides a system of checks and balances which eliminates the possibility of individuals being awarded positions due to favoritism.

Grievant asserts that what actually occurred was that

he fairly negotiated with Mr. Marlow for the higher salary which is allowable under the provisions of Personnel Regulation 6.04(b). Grievant also offered the testimony of Mr. DeVaul at level four in support of his assertion that favoritism did not play a role in his reemployment with Respondent. Mr. DeVaul stated that he had previously worked as a special assistant for Governor Arch Moore and was employed at Highways when he recommended Grievant for the position of Highways Administrative Manager. Although he stated that he had sent Grievant's application for reinstatement as Revenue Agent to Personnel, Mr. DeVaul denies that he made any contacts or used any influence in an effort to ensure Grievant's reemployment with Respondent. In addition to the denial that his reinstatement was

due to favoritism, Grievant asserts that his due process rights were violated when the decision to reduce his salary was made without his first receiving notice or a hearing and again when the issue of favoritism was not timely raised. Grievant requests that his salary be reinstated to $21,062.40 with all appropriate adjustments and increases, interest, and all costs.
A review of the evidence of record does not support a

finding that Grievant's salary was determined as a result of favoritism as defined by W.Va. Code 29-6-20 or 29-6A-2(h). Those sections of W.Va. Code 29-6-20 relied upon by Respondent provide:
(a) No person shall be appointed or promoted to or demoted or dismissed from any position in the classified service or in any way favored or discriminated against with respect to such employment because of his political or religious
opinions or affiliations or race; but nothing herein shall be construed as precluding the dismissal of any employee who may be engaged in subversive activities or found disloyal to the nation.
and

(c) No person shall use or promise to use, directly or indirectly, any official authority or influence, whether possessed or anticipated, to secure or attempt to secure for any person an appointment or advantage in appointment to a position in the classified service, or an increase in pay or other advantage in employment in any such position, for the purpose of influencing the vote or political action of any person or for any consideration.

Respondent has established only that Grievant was assisted to a limited extent in gaining reinstatement as a Revenue Agent by his supervisor, Mr. DeVaul. In testimony offered at level four, Mr. DeVaul stated that he sent Grievant's application for reinstatement to Civil Service but that he made no contacts to get Grievant rehired. Other witnesses confirmed that Personnel had contacted Mr. DeVaul on December 7, 1988, to advise that Grievant did not meet the minimum requirements of the position; however, there is no evidence, either direct or indirect, that Mr. DeVaul in any way influenced Grievant's salary. Only the Grievant's testimony, which remained

uncontroverted, shed any light on how his salary had been set. Grievant's claim that he negotiated with Mr. Marlow, using his Highways' salary as leverage when offered reinstatement at his separation salary is accepted. Mr. Marlow did not appear to testify at either the level two or level four hearings and there is no evidence that he treated Grievant favorably due to any political affiliation. Indeed, the record does not establish Grievant's political affiliation. Therefore, Respondent has failed to prove that Grievant benefitted from political favoritism in violation of W.Va. Code 29-6-20(a) and (c).
W.Va. Code 29-6A-2(h) defines favoritism as the

"unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of another or other employees." Respondent argues that Grievant was treated favorably as evidenced by a comparison with eighteen other Revenue Agents which establishes that his salary is considerably higher than other employees who have more education and experience. Grievant's higher salary in and of itself does not establish favoritism as valid assertion. The Grievance Board has previously held that while agencies of state government in West Virginia must recognize the concept of "equal pay for equal work," they are not required to award identical salaries to individuals performing similar duties. Largent v. W.Va. Dept. of Health and W.Va. Civil Service System, Docket No. H-88-012 (Sept. 15, 1989). Further, personnel regulations which permit the hiring

of employees at a higher than minimum level in certain specified circumstances, have been held valid so long as the experience which is used to obtain the higher salaries is relevant to the duties and responsibilities of the position sought. Redden v. W.Va. State Tax Dept., Docket No. 89-T-339 (Feb. 22, 1991). Finally, it was held that absent a showing of abuse of discretion or improper motive, the hiring of individuals at a higher salary than that assigned to current employees holding the same positions is permissible under Personnel's rules. Acord v. W.Va. Dept. of Health and Human Resources/Welch Emergency Hospital, Docket No. 91-H-117 (May 29, 1992). Because Grievant was hired at a different time, during different economic conditions and was able to bargain for his salary based on his work experience, the remaining eighteen Revenue Agents are not similarly situated or subject to comparison regarding their respective salaries. Accordingly, a finding of favoritism as defined by the grievance procedure cannot be supported. Although Respondent has failed to prove that Grievant's

salary was established as a result of favoritism it has provided adequate evidence to support a reasonable concern whether his salary was correctly calculated. Personnel Regulation 6.04(b) provides:
The entry salary for any employee shall be at the minimum salary for the class. However, an individual possessing qualifying training or experience above the minimum required for the class, as determined by the Director, may be appointed at the pay rate above the minimum, up to the mid-point of the salary range, unless otherwise prescribed by the Commission. For each step above the minimum, the individual must have in excess of the minimum requirements at least six months of qualifying experience or equivalent qualifying training.

This provision allows an agency to recruit employees who have gained experience in their area of expertise with compensation above the entry level. It does not distinguish between individuals who have gained this experience in the private or public sectors and applies to reinstated employees as well as to original appointments. Therefore, Grievant was entitled to appointment above the minimum pay rate, so long as the salary was relevant to the duties and responsibilities of the position sought; however, it is not clear whether Grievant's prior experience was fully evaluated when the credit was granted allowing the additional salary. The January 24 memo to Ms. Clemons, contained in State

Exhibit 3 (Level III), states the following calculation was to be used to determine Grievant's salary: 60 hours college credit plus his work experience from August 1985 through August 1987 were used to meet the minimum qualifications for reinstatement. The advanced salary classification was then based upon Grievant's work experience from August 1987 through June 1988 (10 months), and from March 1978 through May 1981 (3 years, 2 months), for a total of four years experience, which was converted to an eight step salary increase.
The experience earned by Grievant while working for

Respondent from August 1987 through June 1988 was based upon his performance of relevant duties on a full-time basis and was correctly considered in the determination of his salary. It is less clear whether Grievant should have been granted experience credit for work from March 1978 through May 1981. Respondent submitted into the record three Applications for Examination completed by Grievant, that from his initial employment in 1985 and two submitted in late 1988. On the 1985 application Grievant indicated that he was

employed on a full-time basis by the Barbour Coal Company as a Heavy Equipment Operator from February 1975 to August 1983. Grievant also indicated that he was employed full-time as President of the Distinguished West Virginians from January 1979 to April 1982. Grievant identified the business as retail in nature and described his duties as follows:
While employed by Barbour Coal Company, owned and operated my own business for a secondary income. Maintained and managed payroll and personal accounting for fiscal operations. Accounting procedures included all bank accounts, personal and business and filing payments of all taxes, cash flow statements, financial statements and profit and lose [sic] statements. Estimated procedures for the payment and administrator of expense accounts in our market program. Directed the writers of all correspondence targeted to our statewide market area.

On the first application submitted in 1988 Grievant again indicated that he worked at the Barbour Coal Company from February 1975 to July 1983. At this time he listed his work as President for the Distinguished West Virginians, Inc., during the period from March 1978 to May 1981. He described his duties as:
Did all taxes for the company, state, federal, local, corporation. Did all marketing of our product line. Orders and cost projection every six months, did delivery to our suppliers and operated mail order division.

The third application, dated November 1, 1988, included Grievant's work for the Distinguished West Virginians from March 1978 to May 1981 but stated his job title as Bookkeeper and Treasurer. The description of his duties was again slightly modified:
Did all internal bookkeeping of monthly, quarterly and annual tax returns, keep track of the marketing of all products sold and placed all orders and delivery in mail to their suppliers.

The inclusion of this work, constituting thirty-eight of the forty-eight months experience upon which the advanced salary was calculated, is suspect for two reasons. First, even though Grievant asserts that his work for the Distinguished West Virginians was one of two full-time jobs he held during this period of time, his own description of the duties which he performed establishes that the tax-related work was only a portion of his total responsibilities. Those duties relating to the marketing of the products might have no relevance to Grievant's work as a Revenue Agent; therefore, it is questionable whether he should have been given full-time, or any, credit for this work. Also persuasive is the second factor, that Grievant was

apparently not given credit for this experience when he was initially hired by Respondent in 1985. Grievant had accrued the experience at that time, yet his salary classification when he resigned in June 1988 was at Step 1B indicating he had not received credit for any prior experience. Grievant's claims that his due process rights were

violated are not persuasive. Grievant's first claim was that the decision was made to reduce his salary prior to his receiving notice or a hearing. Mr. Melton noted in his level two Coon decision that Grievant was not afforded due process as a result of that particular hearing, and therefore delayed implementation of the ruling to allow Grievant the opportunity to prevail "in his own exercise of the grievance procedure before a significant source of his family income is removed." Grievant was served a copy of that decision which provided him notice of the impending action. Although this grievance has been unusually protracted in duration Grievant continues to be afforded his due process rights throughout a series of hearings. Grievant offers no suggestion as to what, if any, additional pre-deprivation due process rights he was entitled. The second alleged due process violation was the

Respondent's failure to timely raise favoritism as an issue. The issue was raised, but not addressed, at the first level three hearing. Grievant, therefore, has had the opportunity to address the issue at both the second level three and the level four hearings and has suffered no harm for its not having been stated with specificity at some earlier time. To summarize a complex situation, Personnel Regulation

6.04(b) does apply to employees reinstated to positions previously held; therefore, Grievant was entitled to an advanced salary based upon any qualifying experience he possessed, including that earned during his prior stint as a Revenue Agent. Grievant has been appropriately credited for ten months experience beyond that needed to meet the minimum qualifications, but his work for the Distinguished West Virginians should be reevaluated to determine what, if any, credit it should be given as qualifying experience for use in advancing his salary.
In addition to the foregoing narration it is appropriate

to make the following specific findings of fact and conclusions of law.

Findings of Fact

1. Grievant was first employed by Respondent in 1985, he was classified as a Revenue Agent and earned $15,165.60 per annum at the time of his resignation effective June 30, 1988.
2. Grievant accepted employment with the West Virginia Division of Transportation beginning July 1, 1988, as a Highway Administrative Manager at a salary of $24,615.60.
3. Grievant applied for reemployment with the Respondent in November 1988 and was reinstated effective December 30, 1988, with a salary of $21,062.40.
4. As the result of a grievance filed by eleven other Revenue Agents Grievant's salary was reduced to $15,165.60 effective January 1, 1990.

   Conclusions of Law

5. In the present matter, the burden of proof rested upon the Respondent to establish, by a preponderance of the evidence, its charge that it had treated Grievant in a manner resulting in favoritism.
6. Respondent failed to prove that Grievant had been treated favorably due to his political affiliations in violation of W.Va. Code 29-6-20(a) and (c).
7. Respondent has failed to prove that favoritism was shown Grievant through preferential, exceptional or advantageous treatment, a violation of W.Va. Code 29-6A-2(h).
8. W.Va. Division of Personnel Regulation 6.04(b) allows an individual possessing more than the minimum training or experience to be appointed at a pay rate above the minimum. The regulation does not differentiate between experience earned in the private and public sectors.
9. Grievant may have been improperly awarded an advanced salary based upon full-time credit being given for experience gained at a second job which included some tax-related work but required many non-related duties. Accordingly, the grievance is GRANTED to the extent

   that Grievant's salary must be determined in compliance with Personnel Regulations 6.04(b), with consideration given to the ten months experience earned as a Revenue Agent and other experience determined to be qualifying, if any. This salary shall be effective December 30, 1988, with all subsequent adjustments or increases based upon that amount. Grievant is also awarded interest at the current legal rate. The grievance is DENIED regarding the restoration of Grievant's salary to Pay Grade 12, Step 8B and costs.