Bel-O-Mar v. WV Commission on Aging
Annotate this CaseSeptember 1992 Term
___________
No. 21219
___________
BEL-O-MAR INTERSTATE PLANNING COMMISSION
AND NORTHERN PANHANDLE AREA AGENCY ON AGING;
CENTRAL WEST VIRGINIA AREA AGENCY ON AGING;
MID-OHIO VALLEY REGIONAL COUNCIL
AND REGION V AREA AGENCY ON AGING;
REGION VI PLANNING AND DEVELOPMENT COUNCIL
AND REGION VI AREA ON AGING; AND
SOUTHEASTERN WEST VIRGINIA AREA ON AGING,
Plaintiffs Below, Appellees
v.
WEST VIRGINIA COMMISSION ON
AGING, A PUBLIC CORPORATION ESTABLISHED
BY STATUTE,
Defendant Below, Appellant
___________________________________________________
Appeal from the Circuit Court of Marshall County
Honorable John Madden, Judge
Civil Action No. 91-P-90M
REVERSED
___________________________________________________
Submitted: September 8, 1992
Filed: October 23, 1992
Mario Palumbo
G. Charles Hughes
Paul E. Jordan
Moundsville, West Virginia
Monica A. Parrill
Attorney for Appellees
Office of Attorney General
Charleston, West Virginia
Attorneys for the Appellant
This Opinion was delivered PER CURIAM.
Justice Miller dissents and reserves the right to file a
dissenting opinion.
SYLLABUS BY THE COURT
"'Upon judicial review of a contested case under the West
Virginia Administrative Procedure Act, Chapter 29A, article 5,
Section 4(g), the circuit court may affirm the order or decision of
the agency or remand the case for further proceedings. The circuit
court shall reverse, vacate or modify the order or decision of the
agency if the substantial rights of the petitioner or petitioners
have been prejudiced because the administrative findings,
inferences, conclusions, decisions of order are: "(1) In violation
of constitutional or statutory provisions; or (2) In excess of the
statutory authority or jurisdiction of the agency; or (3) Made upon
unlawful procedures; or (4) Affected by other error of law; or (5)
Clearly wrong in view of the reliable, probative and substantial
evidence on the whole record; or (6) Arbitrary or capricious or
characterized by abuse of discretion or clearly unwarranted
exercise of discretion."' Syl. pt. 2, Shepherdstown Volunteer Fire
Dep't v. State ex rel. State Human Rights Commission, 172 W. Va.
627, 309 S.E.2d 342 (1983)." Syl. pt. 3, Gino's Pizza of West
Hamlin v. WVHRC, ___ W. Va. ___, 418 S.E.2d 758 (1992).
Per Curiam:
This appeal by the West Virginia Commission on Aging
("WVCOA"), a public corporation established by statute, is from the
final order of the Circuit Court of Marshall County entered January
16, 1992. The final order of the trial court reversed the August
23, 1991 decision of an administrative hearing examiner that upheld
the WVCOA's decision to reduce the number of state area agencies on
aging from nine to four. Upon review of the record, we conclude
that the trial court erred in reversing the decision of the hearing
examiner.
The WVCOA was created by statute in 1964 to act as an
advocate for and coordinator of programs and services designed to
aid the older people of West Virginia. W. Va. Code, 29-14-1, et
seq. The statute grants responsibility to the WVCOA to act on
behalf of the state when federal programs relating to older people
necessitate state action:
The [WVCOA] shall constitute the
designated state agency for handling all
programs of the federal government relating to
the aging requiring action within the state,
which are not the specific responsibility of
another state agency under the provisions of
federal law or which have not been
specifically entrusted to another state agency
by the legislature.
W. Va. Code, 29-14-10 [1964].
The federal government provides appropriations to the
states to benefit older people through the Older Americans Act.
See 42 U.S.C. § 3001, et seq. The Older Americans Act outlines
various "programs of grants" made available to the states for the
benefit of older persons. The Act outlines various actions a state
must take in order to participate in the "programs of grants." The
Act does not mandate participation by the states.
To be eligible to participate in the "programs of grants"
made available under the Older Americans Act, a state agency on
aging (in West Virginia the WVCOA) must, "divide the State into
district planning and service areas[.]"See footnote 1 Prior to May, 1991, the
WVCOA had divided West Virginia into nine "planning and service
areas." On May 24, 1991, the WVCOA passed a resolution reducing
the number of "planning and service areas" from nine to four (the
"reduction resolution").
It is clear from the record that the WVCOA passed the
reduction resolution in response to what it perceived to be a
mandate to do so by the West Virginia legislature. This perceived
mandate was discerned through an examination of a statement placed
in the 1991-92 West Virginia Budget Digest.See footnote 2 The Executive
Director of the WVCOA testified that he conducted discussions with
various legislators in an attempt to understand the intention of
the legislature; he thereafter became convinced that the
legislature intended the WVCOA to reduce the number of planning and
service areas from nine to four.
Subsequent to the reduction resolution passed by the
WVCOA, the five appellees, each an agency responsible for one of
the nine planning and service areas to be redefined by the
reduction resolution, sought an administrative hearing with the
WVCOA to protest the resolution.See footnote 3
Appellees argued at the administrative hearing that the
legislative intent gleaned from the Budget Digest was improperly
relied upon by the WVCOA because it had not been authorized by a
vote of the full legislature. They also contended that the
reduction resolution violated the federal Older Americans Act
(specifically 45 C.F.R. 1321.35(a)(1)).
After adducing testimony, the hearing examiner determined
that the WVCOA's reduction resolution was not based upon any
inadequacy on the part of the appellees, but was the result of the
WVCOA's understanding of legislative intent as gleaned from the
Budget Digest and conversations with two key legislators. The
hearing examiner upheld the reduction resolution of the WVCOA,
stating:
This reduction in [planning and service
areas] is . . . supported by 45 C.F.R. §
1321.17(d), which requires the state to
identify the geographic bounds of the planning
and service areas. . . .
WVCOA properly relies on 45 C.F.R.
1321.35(a)(1) and (3) which requires the state
agency to withdraw an AAA's [area agency on
aging] designation when the AAA no longer
meets the requirements of the Older Americans
Act and its regulations as implemented by the
Commission on Aging through its state plan.
As Dr. Brown [the Executive Director of the
WVCOA] testified, the existing AAA's
geographic boundaries no longer fit the
reconfigured system of four AAA's. Also 45
C.F.R. § 1321.19(a)(2) requires the Commission
to amend its state plan to reflect material
changes in law, organization, policy or state
agency operation. The WVCOA is reducing the
number of AAA's in response to legislative
mandate which caused the state agency to
change its policy.
Appellees appealed the decision of the hearing examiner
to the Circuit Court of Marshall County. The trial court held
"that the hearing examiner rested his conclusions primarily on
improper evidence," and therefore found in favor of the appellees.
The "improper evidence" cited by the trial court included reliance
by the Hearing Examiner on the Budget Digest and discussions
between the Executive Director of the WVCOA and key legislators to
determine "legislative intent" supporting the reduction resolution.
The trial court also concluded that 45 C.F.R. § 1321.17(d) "which
require[s] the state to identify the geographic bounds of the
planning and service areas" was improperly relied upon by the
hearing examiner.
Upon appeal to this Court, the appellants contend that
the trial court erred by finding that the hearing examiner's
reliance upon federal regulations supporting the reduction
resolution was improper. Appellants state in their brief:
While much, if not most, of this
controversy has evolved around the legitimate
creation and use of the Budget Digest by
legislators and administrators, the fact
remains that redrawing of the boundaries of
AAA's [Area Agency on Aging] and declining to
renew grants and contracts previously awarded
to the former AAA's is a legitimate use of the
power and discretion of the Commission.
For the reasons that follow, we agree with the appellant's
contention.
A close examination of the applicable law shows that the
appellees lack a cause of action. The West Virginia Code does not
mandate the creation of any "planning and service areas," and, at
most, merely grants responsibility to the WVCOA as "the designated
state agency for handling all programs of the federal government
relating to the aging requiring action within the state[.]" W. Va.
Code, 29-14-10 [1964].
Neither is creation of "planning and service areas"
mandated by any provision of federal law. Instead, 45 C.F.R. §
1321.17(d) seeks only to induce the creation of planning and
service areas by states through promises of federal grant money to
those states which do so; 45 C.F.R. § 1321.17(d) states:
§ 1321.17 Content of State plan.
To receive a grant under this part, a
State shall have an approved State plan as
prescribed in section 307 of the Act. In
addition to meeting the requirements of
section 307, a State plan shall include:
(d) Identification of the geographic
boundaries of each planning and service area
and of area agencies on aging designated for
each planning and service area, if
appropriate.
(emphasis added). Similarly, 42 U.S.C. § 3025(a)(1)(E) (see supra
n. 1) also only encourages states to create planning and service
areas "in order for a State to be eligible to participate in
programs of grants" from the federal government.
Appellees argue, however, that 45 C.F.R. § 1321.35(a)(1)
limits when the WVCOA may reduce the number of planning and service
areas to situations where an area agency does not meet the
requirements of the Older Americans Act. It is undisputed that
each of the appellees met the requirements of the Older Americans
Act at the time the reduction resolution was passed. Nonetheless,
close scrutiny of 45 C.F.R. 1321.35(a)(1) shows that the section
only mandates when a state agency must "withdraw [an] area agency
designation." 45 C.F.R. 1321.35(a)(1) states:
§ 1321.35. Withdrawal of area agency
designation.
(a) In carrying out section 305 of the
[Older Americans] Act, the State agency shall
withdraw the area agency designation whenever
it, after reasonable notice and opportunity
for a hearing, finds that:
(1) An area agency does not meet the
requirements of this part;
(emphasis added). The usage of the words "shall withdraw" rather
than the words "may only withdraw" conveys the obvious conclusion
that the section does not limit a State agency to withdrawing an
area agency designation to only those circumstances enunciated
therein.
Appellees further protest that the insertion of
legislative intent concerning the reduction of state planning and
service areas into the Budget Bill was improper because it did not
derive from a vote by the whole legislature. Therefore, they argue
that the WVCOA's reliance on the Budget Bill was improper. The
fact remains, however, that the WVCOA has absolute discretion to
reduce or enlarge the number of planning and service areas.See footnote 4 There
is at present no law or procedure the WVCOA must follow when making
a reduction decision.
Regardless of the reasons used by the WVCOA to pass the
reduction resolution, it is abundantly clear that no provision of
state or federal law requires the WVCOA to create any planning and
service areas (although such creation is obviously encouraged by 45
C.F.R. 1321.17(d) and 42 U.S.C. 3025(a)(1)(E)). Therefore, the
WVCOA violated no law when it resolved to reduce the number of
planning and service areas from nine to four.
In syllabus point 3 of Gino's Pizza of West Hamlin v.
WVHRC, ___ W. Va. ___, 418 S.E.2d 758 (1992), we stated:
'Upon judicial review of a contested case
under the West Virginia Administrative
Procedure Act, Chapter 29A, article 5, Section
4(g), the circuit court may affirm the order
or decision of the agency or remand the case
for further proceedings. The circuit court
shall reverse, vacate or modify the order or
decision of the agency if the substantial
rights of the petitioner or petitioners have
been prejudiced because the administrative
findings, inferences, conclusions, decisions
of order are: "(1) In violation of
constitutional or statutory provisions; or (2)
In excess of the statutory authority or
jurisdiction of the agency; or (3) Made upon
unlawful procedures; or (4) Affected by other
error of law; or (5) Clearly wrong in view of
the reliable, probative and substantial
evidence on the whole record; or (6) Arbitrary
or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of
discretion."' Syl. pt. 2, Shepherdstown
Volunteer Fire Dep't v. State ex rel. State
Human Rights Commission, 172 W. Va. 627, 309 S.E.2d 342 (1983).
The trial court in this case held that the decision of the hearing
examiner was "clearly wrong in view of the reliable, probative and
substantial evidence." However, because the action taken by the
WVCOA was entirely within its discretion consistent with the
decision of the hearing examiner, we find that the hearing examiner
was not clearly wrong in adjudging the reduction resolution valid,
and it was error for the trial court to reverse the administrative
decision.See footnote 5
For the reasons stated herein, the January 16, 1982
decision of the Circuit Court of Marshall County is reversed.
Reversed.
Footnote: 1 42 U.S.C. § 3025(1)(E) and 2(A) provide that a state
agency must, in order to qualify for federal "programs of grants"
benefitting older Americans:
(E) divide the State into distinct
planning and service areas (or in the case of
a State specified in subsection (b)(5)(A) of
this section, designate the entire State as a
single planning and service area), in
accordance with guidelines issued by the
Commissioner, after considering the
geographical distribution of individuals aged
60 and older in the State, the incidence of
the need for supportive services, nutrition
services, multipurpose senior centers, and
legal assistance, the distribution of older
individuals who have greatest economic need
(with particular attention to low-income
minority individuals) residing in such areas,
the distribution of older individuals who have
greatest social need (with particular
attention to low-income minority individuals)
residing in such areas, the distribution of
older Indians residing in such areas, the
distribution of resources available to provide
such services or centers, the boundaries of
existing areas within the State which were
drawn for the planning or administration of
supportive services programs, the location of
units of general purpose local government
within the State, and any other relevant
factors; and
(2) the State agency designated under clause
(1) shall--
(A) except as provided in subsection
(b)(5) of this section, designate for each
such area after consideration of the views
offered by the unit or units of general
purpose local government in such area, a
public or private nonprofit agency
organization as the area agency on aging for
such area;
Footnote: 2 W. Va. Code, 4-1-18 [1969] provides, inter alia, that
the Conferees Committee on the Budget shall prepare a digest or
summary of the budget passed by the whole legislature. See Common
Cause of West Virginia v. Tomblin, 186 W. Va. 537, 413 S.E.2d 358
(1991). The 1991 Budget Digest contained the following statement:
"It is the intent of the legislature that the appropriation for
area agencies be utilized to fund four area agencies."
Footnote: 3 Apparently this hearing was offered by the WVCOA under
the auspices of 76 C.S.R. 1-3.1 (effective July 31, 1986), which
states:
3.1. The State Commission on Aging (COA)
shall provide an opportunity for a
hearing/appeal to:
3.1.1. The Governing Board of any Area
Agency on Aging when the State Agency proposes
to:
(a) Disapprove the area plan or plan
amendment submitted by the Governing Board of
the Agency as specified in 45 C.F.R. §
1321.39(b) or
(b) Withdraw the Area Agency's
designation as a planning and service area as
provided in 45 C.F.R. § 1321.43.
Footnote: 4 Appellees' argument concerning the Budget Bill relies heavily upon our decision in Common Cause of West Virginia v. Tomblin, supra at n. 2. Because the WVCOA makes reduction or enlargement decisions at its discretion, an analysis of Common Cause of West Virginia and any potential applicability to this case is unnecessary. Footnote: 5 The hearing examiner's rationale in finding for the appellants was unnecessary and we need not address the merits of that rationale in this decision. Simply put, the WVCOA did not violate any law or procedure, and the appellees have no cause of action in this case.
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