OPINION ISSUED JULY 19, 2000
TIMOTHY J. TAUCHER
DEPARTMENT OF PUBLIC SAFETY
Claimant appeared pro se.
Joy M. Cavallo, Assistant Attorney General, for respondent.
Claimant, a member of the West Virginia State Police assigned
to the Bureau of Criminal Investigation in Berkeley County, brought
this claim for reimbursement of financial contributions which were
deducted in error from his salary for deposit into the Department
of Public Safety Retirement Voluntary Pledge Fund. The Department
of Public Safety Retirement Voluntary Pledge Fund is not a
statutory fund established by the West Virginia Legislature. The
Court is of the opinion to deny this claim for the reasons more
fully set forth below.
On September 12, 1994, claimant enlisted in the West Virginia
State Police as a cadet. The following day, claimant was presented
by respondent with a contract for the Department of Public Safety
Retirement Voluntary Pledge Fund (hereinafter referred to as "the
Fund").1. The Department of Public Safety Retirement Voluntary
Pledge Fund is a fund established by the West Virginia State Police
in about 1963 . Members of the State Police who join the Fund
voluntarily sign a contract to pay the sum of $10.00 to each
participant of the Fund at retirement. The Fund does not have a
tax identification or any other such number. According to
paragraph 7 of the Fund contract, "The Accounting Office under the
supervision of the Superintendent shall keep a proper and accurate
account to all receipts and expenditures." Pursuant to paragraph 4
of the contract, "[C]ommanding Officers are authorized to make
collections from the contributing member or civilian employees and
forward them to the Department Accounting Office. Commanding
Officers will be furnished the names of all contributing members or
civilian employees." Paragraph 8 of the contract states:
"Arrangements will be made with the management of the depository
whereby the signature of any two (2) of Department Headquarters
Senior Staff, the Superintendent, Lieutenant Colonel or Major(s)
shall be honored on checks for withdrawal of said Retirement
Voluntary Pledge Fund;" Claimant made an election in anticipation
of his retirement to decline the opportunity to make contributions
to the Fund. However, claimant signed the contract, naming his
father as beneficiary, but he wrote the word "NO" by his signature.
The contract was then returned to respondent. Thereafter, claimant
did not make any contributions to the Fund.2. According to
paragraph 5 of the fund contract, "In the event any member fails to
contribute, such member automatically eliminates himself from participating in the Retirement Voluntary Pledge Fund." In 1996,
while assigned to the detachment in Charles Town, claimant was
presented with an itemized form of the insurance and expenditures
which he elected as a cadet. Listed on the form was the Fund
deduction in the amount of $10.00 per month and his father as
beneficiary. Claimant signed that form without realizing the error
on the form. In September 1998, respondent began making
deductions from claimant's salary of $10.00 for deposit in the
Fund, which deductions were printed on his pay stub each pay
period. Claimant discovered this oversight in January of 1999,
filed a grievance through his department, and contacted the
accounting office. In a letter dated January 3, 2000, from the
Chief of Administrative Services, Lieutenant Colonel J. S. Powers,
the erroneous entry was acknowledged and the fact that
contributions had been deducted inadvertently from claimant's
salary, and that such deductions had ceased. Specifically, the
[I] am familiar with the time period during which this
transpired, and have no hesitation in telling you that it
originated with an employee whose performance was less than
acceptable. . . .
. . . .
I have discussed this issue with the Department
Comptroller and the Superintendent, and our first inclination was,
of course, to refund these erroneous deductions to you.
Unfortunately, the Pledge Fund is not a `State' account. Funds
flowing into the fund immediately flow right back out as they are
paid to members of the fund who have retired. Since there is never
any surplus of funds in this account, we have no means of making a
refund, and to make a refund from any other account which the
Department has access to would be illegal per se. . . .
Respondent asserts that the Fund is not a statutorily
recognized fund authorized by the Legislature; therefore it is not
a "state agency" within the meaning of West Virginia Code § 14-2-3.
Accordingly, this Court does not have jurisdiction over this claim.
3. In part, the West Virginia Court of Claims has
jurisdiction over claims against the State or any of its agencies,
which in equity and good conscience should be paid. See W.Va. Code
§ 14-2-13(1). Specifically, W.Va. Code § 14-2-3 defines "State
Agency" as "a state department, board, commission, institution, or
other administrative agency of state government: Provided, that a
`state agency' shall not be considered to include county courts,
county boards of education, municipalities, or any other political
or local subdivision of this State regardless of any state aid that
might be provided." Respondent also asserts that when the
Auditor's office mistakenly approved the financial contribution
deductions from claimant's salary, it acted outside the scope of its authority. Moreover, the claimant may have been negligent when
he affixed his signature to the document referred to as the Fund
contract as well as the 1996 written itemization form and then
failed to observe the deduction printed clearly on his pay stub
each pay period. Respondent further takes the position that the
Fund would be unjustly enriched if revenue from the State Treasury
is used to reimburse claimant.
In respondent's Motion to Substitute Respondent, filed May 26,
2000, respondent argues in the alternative that this Court may have
jurisdiction over the Fund because the Fund has been given all of
the indicia of being a State agency by its existence and operation,
even though the Fund does not meet the definition of "State Agency"
as outlined in W.Va. Code §14-2-3. Respondent urges the Court to
find the Fund to be a State Agency based upon the analysis
articulated by the West Virginia Supreme Court in Blower vs. W.Va.
Educ. Broadcasting Auth.4. In syllabus point 1 of Blower, the
West Virginia Supreme Court stated: "In determining whether a
particular organization is a state agency, we will examine its
legislative framework. In particular, we look to see if its powers
are substantially created by the legislature and whether its
governing board's composition is prescribed by the legislature.
Other significant factors are whether the organization can operate
on a statewide basis, whether it is financially dependent on public
funds, and whether it is requried to deposit its funds in the state
See Id., 182 W.Va. 528; 389 S.E.2d 739 (1990). The Court does
not agree with this interpretation of the West Virginia Code and
In the present claim, the Court is of the opinion that the
Fund is not a "State Agency" as defined by the West Virginia Code.
The Fund, which was established by respondent as a separate entity,
does not have a legislative framework and it does not receive State
funds for any purpose. Therefore, although the financial
contributions from claimant's salary were deposited with the Fund,
this Court is without jurisdiction in this matter. Further, the
Court is of the opinion that it is without jurisdiction to make an
award against the Fund or to issue any order requiring
reimbursement from the Fund itself.
In accordance with the findings of fact and conclusions of law
stated herein above, the Court is of the opinion to and does deny