OPINION ISSUED JANUARY 25, 1991
THOMAS GLENN ROBERTS
DIVISION OF HEALTH
RONNIE R. BOLEN
DIVISION OF MOTOR VEHICLES
WILFORD N. BIRD
DIVISION OF MOTOR VEHICLES
Claimants appeared in their own behalf.
Lowell D. Greenwood, Assistant Attorney General, for respondents.
These three claimants brought actions against two State agencies to recover the pro rata annual
increment increases which they allege each of them earned during the fiscal year 1988-89. Each of
the claimants retired during this fiscal year although not in the same month. Claimants allege that
the respondent State agencies failed to follow the statutory provisions for the payment of their annual
incremental salary increases. The claimants and respondents have agreed and stipulated to the
amount of the pro rata increment increase which may be due and owning to each of the claimants.
Respondents contend that claimants are not entitled to any annual salary incremental increase on a
pro rata basis as each of the claimants retired during the fiscal year 1988-89 and was not employed
for the full fiscal year.
The West Virginia Legislature provided employees of State agencies with annual salary incremental
increases beginning with the 1985-86 fiscal year. See W.Va. Code §5-5-2 (1984). This section of the
Code has been interpreted in two decisions of the Supreme Court of Appeals.
The first decision relating to the increment increase was State ex. rel. Erwin v. Gainer, unpublished
Order dated August 2, 1985. In this decision the Court held that the State Auditor "should pay the
salary supplement as set out in W.Va. Code, §5-5-2 (1984), in a lump sum amount,...." In other
words, the annual salary increment was not to be paid as a part of an employee's regular salary, but rather as a separate payment in a lump sum. Generally speaking, the practice of the State Auditor has
been to make this lump sum payment to State employees in July of each fiscal year.
Erwin also held that the lump sum payment "is designed to supplement the regular pay of eligible
State Employees on the basis of past and present services" and is therefore not barred by Article VI,
Section 38 of the West Virginia Constitution.
In the second opinion, Courtney et al. v. State Dep't of Health, 388 S.E.2d 491 (1989), the Court held
that an employee need not be employed on the first day of the ensuing fiscal year in order to be
entitled to receive an annual incremental salary increase as provided by W.Va. Code, §5-5-2 (1984).
The first day of the fiscal year establishes the date upon which the incremental salary increase is to
An Attorney General's opinion dated June 27, 1990, followed the Courtney decision, supra, wherein
the Department of Public Safety was advised that, "Considering that the W.Va. Code §5-5-2
incremental salary increase constitutes part of an eligible State employee's regular pay for services
previously rendered, any such employee has a statutory right to any accrued pro rata share of that
increment owing but not due on his final day of employment. By entitlement to a pro rata share, it
is meant that an employee who does not work an entire fiscal year is entitled to a fractional portion
of the total increment to which the employee would have been entitled had he been employed during
the entire fiscal year." (Emphasis supplied).
The Annual increment increase is an annual salary adjustment provided by law to State employees
and not a bonus. The increment is based upon each month of service rendered by State employees
as it is rendered; therefore, employees of State agencies earn this increment increase for each month
of employment during a particular fiscal year of service to the State.
It is, therefore, the opinion of this Court that each of the three claimants herein earned his pro rata
share of the annual incremental increase during this final fiscal year of service to the State i.e., the
1988-89 fiscal year. Accordingly, the Court is of the opinion to and does make awards to each of the
claimants for his pro rata share of the annual incremental salary increase earned during the 1988-89
Award of $306.00 to Thomas Gleen Roberts.
Award of $660.00 to Ronnie R. Bolen.
Award of $360.00 to Wilford N. Bird.
OPINIONS ISSUED JANUARY 25, 1991
H. JOHN ROGERS
No appearance by claimant.
Lowell D. Greenwood, Assistant Attorney General, for respondent.
This claim was submitted for decision based upon the allegations in the Notice of Claim and the
Claimant seeks $1,194.00 for 19.9 hours of legal services provided to and authorized by respondent.
The respondent admits the validity and amount of the claim and states that there were sufficient
funds expired in the appropriate fiscal year with which the claim could have been paid.
In view of the foregoing, the Court makes an award in the amount of $1,194.00.
Award of $1,194.00.