Eugene R. Hoyer, Attorney at Law, for claimant.
Henry C. Bias, Jr., Deputy Attorney General, for respondent.


Thomas E. Huzzey, present Commissioner of the West Virginia Oil and Gas
Commission, brought this action to recover $38,789.99. He acted in a
dual capacity, from July
1, 1980 through June 30, 1982, as Commissioner and also as Administrator
for the Office of
Oil and Gas which is under the Department of Mines. He was not paid for
the latter position
and, therefore, seeks $28,000.00. The additional amount of the claim,
$10,789.99, represents
salary increase requests which were denied him in his capacity as
Commissioner. Claimant
alleges that W.Va. Code §22-4-11a, the statute in effect at the time,
supports his theory for the
basis of his claim.

James B. Gehr, Chairman of the West Virginia Oil and Gas Conservation
testified that he received a letter from Walter M. Miller, Director of
the ten Department of
Mines, on June 1, 1981. It requested permission from the Oil and Gas
Commission to permit the temporary appointment of the Oil and Gas
Commissioner, as Acting Administrator of the Office of Oil and Gas. The
only discussion he
remembers was that the salary of the former administrator was
$28,000.00. A letter of June 5,
1981, delineated the salary to be paid to the claimant in his new
capacity. Within a month, he
received a letter from the administration indicating that the salary
could not be paid. An opinion
of the Attorney General stated that if claimant was paid, the salary had
to be paid from funds of
the Department of Mines.

Claimant testified that he assumed the position of Administrator of the
Office of Oil and Gas on
a volunteer basis at the request of Walter Miller, Director of the
Department of Mines. He
admitted that neither before he was appointed by Mr. Miller nor after he
was appointed by Mr.
Miller was he ever told that he would be paid by the Department of Mines
for assuming the
position of Acting Administrator of the Office of Oil and Gas.

Walter Miller, Director of the Department of Mines, testified that the
administrator position is a
full-time position. He stated that in July, 1980, the Mine Inspectors
Examining Board contacted
him with reference to the administrator or deputy
director position. As he knew of no one other than the claimant who had
the proper
qualifications, he discussed the position with the claimant. He asked
the claimant to assist him in
the position temporarily until a qualified person was found to fill the
position. He cannot
remember any discussion concerning compensation for the claimant. Mr.
Miller stated that he
had no intention of compensating the claimant as the Acting

Arnold Margolin, Commissioner of the Department of Finance and
Administration at the time
of this incident, testified that he is familiar with the various
agencies and the budgetary
procedures of the State of West Virginia. The Office of Oil and Gas is a
special revenue,
non-appropriated agency. It is necessary when this agency hires an
administrator or an acting
administrator to submit the payment schedule for that person's salary
through channels as
required. The department (then Finance and Administration) would then
approve the payment
of the salary to that individual. This is also the procedure for hiring
an employee of the Oil and
Gas Conservation Commission. The request for paying a salary to claimant
in his temporary
capacity as Acting Administrator of the Office of Oil and Gas was
denied. Margolin explained
the reasoning of this decision. The two positions inherently had
overlapping areas of
responsibility, and it was his opinion that payment for the second job
was permissive, not
mandatory. Secondly, the Governor had imposed expenditure reductions
which prohibited th
approval of a second salary for claimant. Additionally, it is not unique
for other department
heads to assume additional responsibilities in administering other
programs and other offices
without being compensated. He stated too, that he never wrote a letter
to the Oil and Gas
Conservation Commission, the claimant, or Mr. Miller denying the salary
request as the salary
was never requested.

After carefully reviewing all of the evidence presented, the Court
finds that the claimant has not
substantiated his position. W.Va. Code §22-4-11a with the language "The
director of the
department of mines ... may employ the oil and gas conservation
commissioner as acting
administrator of the office of oil and gas ... and pay him an additional
amount ... ." provides a
discretionary, rather than a mandatory, duty. For this reason, the Court
is unable to find any
evidence or statutory authority for awarding this claim. Therefore, the
Court is of the opinion to,
and does, deny the claim.

Claim disallowed.